Related Links

Senate Judiciary Committee Hearing

September 9, 2009 - "Strengthening Forensic Science in the United States"

Member Statements

Chairman Patrick Leahy: The case of Cameron Todd Willingham, a man appearing to have been wrongfully convicted and executed for the arson murder of his three daughters in Texas, highlights the need for reliable forensic science. The cases of unreliable forensic science that resulted in wrongful incarceration influence the U.S. Supreme Court to hold in a recent case, Melendez-Diaz v. Massachusetts, forensic reports constitute testimony and as such, criminal defendants have the right to call the examining laboratory technician to testify about the testing process and results. Reliability will emerge from the establishment of national standards to ensure that laboratories employ "best practices" in their work. Additionally, accreditation of all laboratories and research into the validity and reliability of some forensic techniques is necessary to addressing the problems outlined in the National Academy of Sciences' report, Strengthening Forensic Science in the United States. As of 2005, there was a national backlog of 350,000 pieces of evidence and one in five labs did not qualify for accreditation.

Senator Russ Feingold: Forensic science is not the infallible indicator of guilt or innocence many believe. Forensic scientists are hampered by a lack of resources that impact their ability to apply rigorous scientific principles to casework. Three problems identified in the National Academy of Sciences' report are viewed as the core issues contributing to forensic science unreliability: a lack of national accreditation and certification standards, limited funds to support laboratories, and a dearth of research validating many traditional forensic science techniques. These problems are compounded by jurors' willingness to rely on forensic science, including unreliable techniques.

Senator Al Franken: Recites statistics on the incarceration rates of the United States as they compare to the rest of the world. Discusses how the lack of uniform standards in identification determinations leads to bad forensic science and 242 wrongful convictions, later revealed through DNA testing. Further, he points out that holding the innocent accountable for another's bad act, allows the true perpetrator to commit more crimes, as evidenced by the fact that of the 242 exonerees, 105 real perpetrators were discovered. From that number, 90 additional violent crimes were committed, including 56 rapes and 19 murders.

Hearing/Witness Testimony and Statements

Senator Jeff Sessions: Forensic science is monetarily shortchanged given its importance in the criminal justice system. This lack of investment is demonstrated daily in the delays law enforcement officers and prosecutors experience waiting for forensic reports from laboratories. The Senator does not believe forensic science is invalid or lacking in scientific support in any area. For example, fingerprints should not be thrown into question after decades of use.


Dr. Eric Buel - Director of the Vermont Forensic Laboratory, Former Board Member of ASCLD: His goal as a member of the American Society of Crime Lab Directors was to ensure the highest standard of forensic science for all victims regardless of where they were victimized. However, this goal was not realized due to a lack of resources. More funding for laboratories is needed to increase the capacity in facilities, operations, and services. Additionally, reform is needed in the following areas: quality assurance through accreditation of laboratories and certification of personnel, more forensic research, and national standards. Accreditation is difficult because thousands of forensic service providers operating in law enforcement agencies are non-accredited. Staff certification should be facilitated by a national process dictated by a national organization. Stable federal funding is needed to provide the long-term development of laboratories, which will result in the reduction of backlogs. Scientific experts and academicians should work together to formulate standards related to uniform report language, protocols, and methods. It needs to be a national entity creating this framework in order to make the validation and establishment of best practices for all disciplines a national priority. Academia has the equipment forensic laboratories lack to perform the necessary validating research. In short, the funding and research put into the development of DNA testing needs to be replicated in other forensic areas.

Defense Attorney

Peter Neufeld - Co-Founder of the Innocence Project: Discussed what happens when forensic science is misapplied or invalidated forensic methods are used. The cases of Roy Brown and Cameron Todd Willingham are used as examples of the consequences of bad forensic science. Brown was convicted in 1991 based on bite mark evidence, and Willingham was found guilty in 1992 based on the testimony of an arson investigator who used, now and then, unscientific investigative techniques. The problem is the real perpetrators are still free and committing crimes. An independent entity is needed to ensure best practices are enforced so that the old system, which wrongfully convicted the innocent, is replaced. Invalidated or improper forensics is the second greatest contributing factor to wrongful convictions. Much of this misidentification is due to the lack of scientific research in the non-DNA disciplines. DNA, unlike other forensic techniques, developed independently of law enforcement use. This resulted in scientific validation of the field before it was ever used in criminal investigations. Courts have not functioned well as gatekeepers of questionable scientific evidence due to a lack of knowledge among judges and lawyers. It is not realistic to expect courts to sort through the patchwork of standards or assess reliability of the forensic sciences. Further, Neufeld does not support the idea that SWGs provide sufficient standard setting guidelines because of the bias inherent in the political nature of the organization and its members. He does support the creation of a National Institute of Forensic Sciences (NIFS) within the Department of Commerce using the research and standards expertise of the National Institute of Standards and Technology. The focus of NIFS should be: basic and applied research to assess the existing forensic methods, establishing national standards, and implementation of quality assurance through accreditation and certification.

Law Enforcement

Harold Hurtt - Chief of Police, Houston Police Department: Discussed the recent history of the Houston Crime Laboratory, reforms implemented at the laboratory, and solutions to challenges facing forensics. In November 2002, the Houston Police Department requested an independent audit of the Houston DNA laboratory by the Texas Department of Public Safety. The DNA unit was temporarily shuttered and an internal investigation revealed criminal and administrative violations. In 2003, a case review of past work began using three outside laboratories to conduct the retesting. In September 2004, an independent review of the property room and crime laboratory was performed. Specifically, the past and present operations were reviewed and particular focus was given to serology cases from 1990-2002. The final report issued in the summer of 2007 revealed that the fifteen years prior to the closure of the DNA laboratory it was operated with a lack of support and resources. There was also ineffective management and a lack of quality controls and quality assurance. The reforms implemented in the wake of the independent audit findings included: new testing procedures, practices, and policies; a state legislative mandate that all crime laboratories become accredited; the construction of a new property room; and the adoption of the case management model used by law enforcement in the United Kingdom. Hurtt offered these recommendations for addressing systemic problems discussed the National Academy of Sciences report: proper funding of labs to ensure access to technology, competent staff, and training; adoption of the case assessment strategy used in the UK, which is very discriminating about which pieces of evidence are submitted for testing and employs barcoding, robotics, automation, and databases, and the education of judges, prosecutors, and defense attorneys on forensic science principals.


Paul Giannelli - Professor, Case Western Reserve University: He believes the implementation of NAS recommendations would reduce the number of challenges to the validity of forensic evidence. DNA exonerations highlighted problems associated with eyewitnesses, false confessions, and jailhouse informants. It also exposed deficiencies in forensic science practices. These deficiencies were the result of a lack of empirical research in forensic science disciplines, especially the subjective identification areas of firearms, fingerprints, questioned documents, trace hair analysis, and bite marks. Independent research is critical as the most informative and rigorous studies come from this area. Essential to the fostering of this research is the creation of an independent national agency headed by scientists, dedicated solely to forensic science. Such an agency will have the prestige needed to attract top scientists to the field and get universities to conduct research and establish educational programs. At the local level, examiners must be given the necessary monetary support to purchase equipment, attend training, and get advanced schooling.


Barry Matson - Deputy Director Alabama District Attorney's Office, Chief Prosecutor Alabama Computer Forensics Laboratory: Prosecutors are held to higher standards given the governmental role they play in the criminal justice system. The National Academy of Sciences failed to get any input from prosecutors when compiling its report. It overlooked the fact that prosecutors and forensic scientists do more than defense attorneys or academicians to free the innocent and safeguard justice. Defense attorneys and academics do not have the burden to seek the truth and are permitted to suppress information if it is in the client's interest to withhold. The mistakes and deficiencies identified in the report are not as widespread as it was claimed. The NAS report focused on perceived biases in the law enforcement community. If the type and extent of bias depicted in the report existed, when a laboratory excludes a suspect through forensic testing law enforcement should arrest him/her anyway because cognitive bias drove the result. In other words, the report suggests that forensic science is only wrong when it points to guilt. Another point of contention with the report is its characterization of digital evidence/computer forensics as a science when in fact the examiners utilize software programs to capture and search electronic information. The report also states that training and certification are lacking in the digital evidence area, but training and certification are presently supplied by the National Computer Forensic Institute. Matson also disagrees that traditional forensic science methods are unreliable because they have a long history of leading to the truth. Finally, the negative impact of the report is already apparent nationwide as defense attorneys are using the report to challenge the forensic evidence used in past and present prosecutions.

Matthew F. Redle - Sheridan County Prosecutor (Wyoming): Justice and a victim's best interest are not best served by arresting the wrong person and the reliability of forensic science is critical to ensuring that interest is achieved. Redle disagrees that public laboratories should be removed from law enforcement agencies because the key to reliability within a laboratory is not where it is located, but how it operates. Reliability is determined by the following: the culture within a laboratory and quality assurance and quality control measures. A laboratory culture that encourages autonomy, transparency, and critical thinking will diminish the influence of outside entities due to the high regard given to the scientific integrity of the work. Additionally, quality assurance policies should include: laboratory accreditation and personnel certification, internal peer review, external/internal performance audits, proficiency testing, and corrective action procedures. Overall, removing laboratories has an enormous cost with no guarantee that examiner error, bias or fraud will disappear. Also, bias will not be removed because the bulk of the work will still come from law enforcement agencies and the same work relationships will form. Bias is combated with quality control and assurance measures and external peer review. Further, many of the recommendations made in the report can be implemented by the Department of Justice, instead of forming a new federal agency, using existing accreditation agencies and the National Institute of Standards and Technology. More funding is needed to support non-DNA laboratory work and accreditation of all labs to ensure reliable testing. Redle supports research into the science but not to the extent it countermands current best practices.

Question and Answer
  • Sen. Patrick Leahy: Dr. Buel emphasized the need for professional rapport and support for research in all forensic disciplines. Congress has historically supported DNA research and training but has not extended that level of funding into traditional forensic areas. If we take on more comprehensive forensic reform and invest more in all forensic areas, will that help us solve more crimes?
    • Dr. Buel: DNA is only applicable in some cases and other areas provide a lot of information to prosecutors about whether in include or exclude a suspect. The NAS report provides a limited window of information and a more complete review of the forensic system is needed to move forward on this issue. However, if the support given to DNA (backlogs, education, research) is offered in other areas, more crimes will be solved.
  • Leahy: Forensic evidence has been used to exonerate the wrongfully incarcerated. How important is scientific research in testing in non-DNA areas? Are we doing enough in the non-DNA disciplines?
    • Neufeld: Congress is generous with the level of funding provided for DNA testing because everyone understood the reliability of the technology from the outset. However, other areas of forensic science are not as robust and basic research and standards are needed before congressional funding is appropriate.
  • Leahy: To improve don't you need money for training and standards?
    • Neufeld: No, basic research is needed to validate a method, which then allows for the establishment of application standards. Only at that point should funding for training uses be allocated.
  • Leahy: Based on your experience, what would you tell another police chief facing problems in his/her laboratory?
    • Hurtt: Admitting the problem is the first step. Then, the process used to fix the problems must be very transparent in order to regain confidence in forensic science. Finally, appoint experts to conduct an investigation and implement the recommendations they offer.

  • Sen. Jeff Sessions: Do delays and a lack of resources in forensic science present problems to officers trying to make a case?
    • Hurtt: Yes, this is a daily problem. DNA evidence in a serial rape case was sent to the FBI laboratory, and it took almost a year to get results due to the backlog.
  • Sessions: Is it frustrating to law enforcement and prosecutors to face delays in forensic analysis? Could delays allow criminals to be free to commit more crimes?
    • Matson: Yes, we cannot go to trial unit we have forensic reports, which still require further analysis once they are received. Alabama has an independent laboratory that helps to overcome backlog issues. The backlog at the state laboratories are improving because of federal funds but it is still a major burden.
  • Sessions: Do you believe the NAS report is being used to challenge traditional types of forensic evidence at trial based on claims of unreliability?
    • Redle: Yes, but the use is spotty so far. I am working to survey the impact nationally and to determine what disciplines are most targeted.

  • Sen. Al Franken: Provided general comments on his belief that Willingham's prosecutor made suspect statements about circumstances surrounding the case in a recent newspaper article. He also noted that he found the NAS report terrifying.
    • Neufeld: (Referring to the Willingham case) In every case I have worked on there are always claims that overwhelming evidence of guilt exists outside of the forensic evidence. However, when you deconstruct the pieces they don't hold together under scrutiny. Many of 242 exonerated by DNA were convicted based on incorrect/misapplied forensic evidence (examples of evidence at issue: hair analysis, serology, bite marks, and fingerprints). You can debate the death penalty from many perspectives but you can't debate the wrongful convictions demonstrate the system is not as perfect as we thought and having an irreversible punishment creates problems if new evidence is discovered. This is justification for suspending the death penalty until forensic science is sufficiently rigorous and robust.
  • Franken: DNA testing is the most reliable but there is a major backlog of rape kits nationwide. What can we do to increase funding to maximize DNA testing?
    • Matson: Congress has taken steps to provide funding and the backlogs are starting to decrease. DNA is at the place we would like it to be. (Discussing exoneration cases) Seventy-five percent of cases taken by the Innocence Project dealt with areas (like serology and hair analysis) using techniques now abandoned. DNA has replaced blood typing and hair follicle identification.

  • Sen. Dick Durbin: Based on DNA evidence, how many prisoners have been exonerated following conviction?
    • Neufeld: Of the 242 exonerated by DNA, almost all had exhausted direct appeals and habeas corpus collateral attacks.
  • Durbin: In states where access to postconviction DNA is not available what is the solution?
    • Neufeld: I argued in the Supreme Court case (District Attorney's Office v. Osborne) for the right to postconviction access but the Court did not agree. Now, efforts should be focused on local legislatures. Further, Congress could help by increasing the monetary incentive to pass postconviction access laws when it considers renewing the Innocence Protection Act.
  • Durbin: As a professional prosecutor, don't you believe there should be DNA testing in every state?
    • Matson: Yes, DNA should be used when it is available, but it must be understood that evidence used for testing in postconviction cases is subject to contamination.
  • Durbin: Wouldn't that be a chain of custody issue?
    • Matson: I support DNA testing anytime we can do something to find the truth, but the reality is we do not know who handled evidence after conviction and many times key players are dead leaving prosecutors to rely on transcripts.

  • Sen. Sheldon Whitehouse: Comment on problems with delays due to a lack of resources and the effect of those delays on investigative efforts and prosecution.
    • Hurtt: Delays compromise timely access to evidence while the crime is fresh, witnesses are available, and connections to other offenses can be made. As cases linger, case management becomes a problem as workloads increase and perpetrators have opportunities to commit more crimes.
  • Whitehouse: Discusses his perspective on a lack of standards in investigating and prosecuting death penalty cases in states as compared to the federal government. Comment on the extent and merit of additional procedural protections in state death penalty cases.
    • Matson: Safeguards are already in place. There is a lengthy process before execution is possible, including trial/sentencing phases and appellate petitions. As for deciding to ask for the death penalty, death penalty decisions are unique to the facts, place and community a person is tried in.

  • Sen. Amy Klobuchar: Do the prosecutors agree we should implement accreditation requirements?
    • Redle: Yes, I agree with most of the recommendations of the NAS report, including accreditation. Note, however, that due to DNA testing and standards enacted by the DNA advisory board, close to 90% of public labs are accredited. Certification is the next step.
    • Matson: I agree that national accreditation standards are a good thing. Anything that supports the science and examiners is good.
  • Klobuchar: Is it a good thing to have a national agency perform the validation research?
    • Redle: More funding for research is needed but I don't think a new national agency is the most efficient method to accomplish this goal. The framework to do the research is already within existing agencies. The NAS report rejected NIST and the National Science Foundation as possible agencies and proposed NIFS to conduct the research because NIST and the National Science Foundation had modest experience in research funding. But the proposed new agency will have no experience with research funding.
    • Giannelli: A paucity of research in the forensic sciences was challenged under Daubert starting in 1995 and nothing has been done to correct this under the current system. Money was given but was not funneled to the conduct needed research. This is why we need an independent scientific research program.
    • Matson: Research is a good thing but I don't think we need a political agency regulating forensic science.
  • Klobuchar: In the Melendez-Diaz case, I disagreed with majority and agreed with Kennedy's dissent. Mr. Neufeld stated in his written testimony that cross examination is needed to weed out bad forensic science because judges and lawyers lack the scientific knowledge to discern the limitations of some types of forensic evidence. How is this decision good if it guarantees more cross examination that many not be helpful?
    • Neufeld: This case is addressing the problem of a lack of national standards, which make live testimony necessary. We need meaningful standards for report writing to describe the items tested and the methods used to identify results and draw conclusions. If we had this information in all reports, as we get in DNA, there would be more pleas or stipulations to the content negating the need for live testimony.
  • Klobuchar: So, if you had national reporting standards you wouldn't need live witnesses?
    • Neufeld: If we had those reports, it would ameliorate the problem because people will stipulate and there will be no need to confront. Better report writing will produce a more efficient system.

  • Sen. Jeff Sessions: The federal government should not overly intrude on local and state criminal matters, but it should provide funding for training and research. The DOJ should already be aware of the latest technology and the most reliable techniques. It should be a resource to states and should provide more leadership. Is DNA uniquely capable of more certainty?
    • Buel: Statistics that show the likelihood of identification in the billions is good evidence.
  • Sessions: Fingerprints will never be an exact science?
    • Buel: The proper use of quality controls, proficiency testing, and peer review verifications at an accredited lab will provide excellent scientific results.
  • Sessions: Where does a lab send personnel for training? Are there many places available? Could we do a better job of providing quality training centers?
    • Buel: I requested funds from NIJ to start a college-like program that would produce graduates capable of passing the proficiency test but all examiners need further in-house training before they can do casework.
    • Hurtt: DNA is the best identification technique and small jurisdictions should have access to large city, state, and federal labs for testing. The UK used DNA testing of skincells and fingerprints left on bullet casings in property crimes and increased the detection rated from 15% to 50%. We need to move toward the use of DNA in property crimes instead of training other types of examiners.