A Review of the National Academy of Sciences Report on Forensic Science and possible

Consequences.

Barry A. J. FisherCrime Laboratory Director (Retired)

Los Angeles County Sheriff’s Department

bajfisher@earthlink.net

Objective:

• The purpose of this presentation is to give an overview of recent developments concerning forensic science in the United States and to comment on possible implications within the U.S. criminal justice system.

• How these may affect forensic science stakeholder in other parts of the world is anyone’s guess.

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In 2005

• Congress directed the NAS to conduct a study was directed by the U. S. Congress (though the efforts of the Consortium of Forensic Science Organization).

• The Consortium of Forensic Science Organizations, CFSO is an advocacy group made up of 7 organizations: AAFS, ASCLD, ASCLD/LAB, FQS-I, IAI, NAME, and SOFT (ABFT).

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Background on the CFSO

• Why the CFSO? – Advocacy.

• How the CFSO began.– Various forensic groups were giving different

messages to policy makers.– We needed to have a single, consistent message.

• What has been accomplished?– Recognition and legislation (funding).

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CFSO Lobbying efforts

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Authorizing legislation for the study noted:

“While a great deal of analysis exists of the requirements in the discipline of DNA, there exists little to no analysis of the remaining needs of the community outside of the area of DNA. Therefore . . . the Committee directs the Attorney General to provide [funds] to the National Academy of Sciences to create an independent Forensic Science Committee.

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This Committee shall include members of the forensics community representing operational crime laboratories, medical examiners, and coroners; legal experts; and other scientists as determined appropriate…”

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The National Academies

• The National Academy of Science (NAS) was established during the American Civil War by the United States Congress and signed into law by President Abraham Lincoln on March 3, 1863 as "advisers to the nation on science, engineering, and medicine.”

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Background to the NAS Report.

• On February 18, 2009, the National Academy of Science issued its report entitled Strengthening Forensic Science in the United States: A Path Forward.

• The U.S. Congress charged the NAS to conduct a comprehensive review of forensic science and include a number of study issues.

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The Senate’s charge to the NAS Forensic Science Committee:

1. To assess the present and future resource needs of the forensic science community, to include State and local crime labs, medical examiners, and coroners;

2. To make recommendations for maximizing the use of forensic technologies and techniques to solve crimes, investigate deaths, and protect the public;

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3 To identify potential scientific advances that may assist law enforcement in using forensic technologies and techniques to protect the public;

4. To identify potential scientific advances that may assist law enforcement in using forensic technologies and techniques to protect the public;

5. To make recommendations for programs that will increase the number of qualified forensic scientists and medical examiners available to work in public crime laboratories

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6 To disseminate best practices and guidelines concerning the collection and analysis of forensic evidence to help ensure quality and consistency in the use of forensic technologies and techniques to solve crimes, investigate deaths, and protect the public;

7 To examine the role of the forensic community in the homeland security mission;

8 [To examine] interoperability of Automated Fingerprint Information Systems [AFIS]

9 And to examine additional issues pertaining to forensic science as determined by the Committee

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NAS Recommendations:

1. Congress should establish and appropriate funds for an independent federal entity, National Institute of Forensic Sciences (NIFS).

2. NIFS should establish standard terminology for reporting on and testifying about forensic science results of investigations.

3. Basic research is needed in accuracy, reliability, and validity (particularly pattern evidence).

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4. Remove forensic laboratories from the control of law enforcement agencies.

5. Encourage research programs on observer bias and the sources of human error.

6. Establish standard protocols for forensic examinations, methods and practices.

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7. Oversight: mandatory forensic examiner certification and forensic laboratory accreditation.

8. Establish routine quality assurance and quality control procedures to ensure accuracy.

9. Establish a national code of ethics with an enforcement mechanism.

10. Develop/improve graduate education programs in forensic science.

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11. Improve medical legal death investigations by replacing coroners with medical examiners.

12. Launch a new broad-based effort to achieve nationwide fingerprint data interoperability.

13. Coordinate national forensic science efforts in terrorism and national disaster incidents between National, State and local agencies.

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The NAS report is available at:

http://www.nas.edu/morenews/20090218.html

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Note about NAS (NRC) recommendations:

• In the 1920s the NRC recommended that the US switch from a Coroner’s system to a Medical Examiner system.

• In the 1970s, the NRC recommended that the US adopt the metric system of weights and measures.

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What are the possible short term consequences?

Legislation. Congress is considering legislation based on

the report. At present, it is unclear how this will all play out. It seems that proposals for NIFS and removal of labs from police agencies does appear to have much traction.

The White House Office of Science and Technology Policy has been holding meetings with Federal agencies and other stakeholders to determine what the Administration’s position might be.

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Expectations

• The defense bar is gearing up to use the report to attack aspects of forensic science, e.g. fingerprints, firearms, tool marks, tire impressions, footwear evidence, etc.

• Those who testify in these areas must be prepared for my aggressive cross examination.

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One issue likely to be raised:

• Can, pattern evidence, such as fingerprints, be related to a sole individual, to the exclusion of all other sources? This sort of conclusion has been given for years.

• The NAS report holds up DNA as the “gold standard” partly because of its use of statistics.

• Traditionally, conclusions proffered in pattern evidence cases rely on experience. There is virtually no statistical work available to offer probabilities or likelihood, as with DNA evidence.

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Research is needed to put these sorts of issues to rest.

• The U.S. Department of Justice’s National Institute of Justice is funding some studies on the issue of reliability (Daubert) but more are needed.

• Other funding sources such as the National Science Foundation need to “step up” to address like issues. There are unique, cross discipline studies that could be undertaken.

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Continuing education.

• Crime labs continue hiring and are faced with the need to train a new generation of forensic examiners.

• Labs rely on apprenticeship or mentor based training because there is insufficient programs available.

• Current programs, while excellent are not sufficient. Simply stated: more programs are needed.

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• In addition to forensic scientists, continuing education is also need for:– Police (first responders)– Police investigators– Prosecutors and defense attorneys– Judges

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Accreditation

• The NAS report notes that all forensic labs - public and private should be accredited.

• Does this include police agencies who offer forensic services outside of traditional labs, e.g. crime scene investigation, fingerprints, etc.?

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Certification

• The NAS report notes that anyone who provides expert testimony [on a regular basis] is to be certified.

• Does this mean police officers and civilians within police agencies who testify as experts?

• There is a significant capacity issue for certifying bodies if this is the case.

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Applied research

• Pattern evidence: fingerprints, firearms, tire impression and footprint evidence, hand writing, bite marks, etc.

• Statistics – how can an experts opinion be conveyed to the court when data is scarce? – Report writing.

• Bias in forensic science.• Interdisciplinary Collaboration.

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University’s Role

• To offer quality undergraduate and graduate education programs.

• To conduct research in those areas needed by the profession (basic and applied)

• To offer continuing education programs for stakeholders.

• To act as a convener – to bring together policy makers to examine important issues.

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The need for a comprehensive approach.

• Even if NIFS is not created, there is the need for a single source at the Federal level to coordinate the myriad of activities and issues coming out of the NAS report.

• Where should it be housed? DOJ, White House Executive Offices, ...?

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Conclusions

• The NAS report presents unprecedented challenges and opportunity for forensic science, the criminal justice community and the judicial system as a whole.

• It would be a shame to squander the chance to improve the quality of justice in the United States.

• It’s now up to policy makers at all levels to “step up” and get to work.

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What affect will this report have?

• The NAS report has no actual force of law by itself. The U.S. Congress is presently considering legislation based on the recommendations.

• However, because of the status of the NAS, it will have a de facto impact on forensic science through the courts, who may rely on some of the findings.

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What’s next?

• Congressional action: For the NAS Report recommendations to be adopted, Congress will have to pass laws.

• The White House Office and Technology Policy has been holding meetings with Federal agencies which operate forensic labs as well as other interested groups to determine what the Administration will do.

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United States vs. Frye

• This 1923 U. S. Supreme Court case define scientific evidence (expert testimony).

• The key phrase under “Frye” is the “general acceptance” by the relevant scientific community .

• The judge serve as the “gatekeeper,” that is he decide if scientific evidence may be heard by the jury.

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Daubert

• U.S. Supreme Court case (1993) which redefined the way courts view scientific evidence.

• Later expanded to all expert evidence under the Kuhmo Tire decision (Federal Rules of Evidence, rule 703).

• RELIABILTY test

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Pattern Evidence

• Developed by police, e.g. fingerprints, firearms evidence, footwear evidence, tire impression evidence, handwriting evidence, etc.

• Pattern evidence has not had the same degree of university based research as traditional scientific disciplines, e.g. DNA.

• We are beginning to see the defense bar preparing to attack the validity of pattern evidence.

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As an example:

• Can fingerprints be related to a sole individual, to the exclusion of all other sources. I expect to see this sort of question asked about all pattern evidence where examiners state with certainty that a fingerprint, or a bullet, or foot print, … came from a sole source.

• There will also be questions about the reliability of pattern evidence in general.

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Final Thoughts on NAS Report

• Even though no laws have yet been passed, it is reasonable to expect the contents of the NAS report will be used by defense lawyers in court cases.

• It is also not unreasonable for the defense bar to inquire into other areas, such as, crime scene investigation.

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It has started …

• The United States Supreme Court in Melendez-Diaz vs. Massachusetts issued its ruling on 25 June 2009 and cited the National Academy of Sciences report in its findings.

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Furthermore,

• I would expect both judges and defense lawyers to be more familiar with forensic science issues raised in the report then ever before.

• And finally, I expect that some of the findings from the NAS report may be considered outside of the United States.

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