```

[Senate Hearing 113-274]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 113-274
 

                  FROM THE LAB BENCH TO THE COURTROOM:
                  ADVANCING THE SCIENCE AND STANDARDS
                              OF FORENSICS

=======================================================================

                                HEARING

                               before the

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 26, 2013

                               __________

    Printed for the use of the Committee on Commerce, Science, and 
                             Transportation

                          U.S. GOVERNMENT PRINTING OFFICE

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                        Washington, DC 20402-0001

       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

            JOHN D. ROCKEFELLER IV, West Virginia, Chairman
BARBARA BOXER, California            JOHN THUNE, South Dakota, Ranking
BILL NELSON, Florida                 ROGER F. WICKER, Mississippi
MARIA CANTWELL, Washington           ROY BLUNT, Missouri
MARK PRYOR, Arkansas                 MARCO RUBIO, Florida
CLAIRE McCASKILL, Missouri           KELLY AYOTTE, New Hampshire
AMY KLOBUCHAR, Minnesota             DEAN HELLER, Nevada
MARK WARNER, Virginia                DAN COATS, Indiana
MARK BEGICH, Alaska                  TIM SCOTT, South Carolina
RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
BRIAN SCHATZ, Hawaii                 DEB FISCHER, Nebraska
WILLIAM COWAN, Massachusetts         RON JOHNSON, Wisconsin
                                     JEFF CHIESA, New Jersey
                    Ellen L. Doneski, Staff Director
                   James Reid, Deputy Staff Director
                     John Williams, General Counsel
              David Schwietert, Republican Staff Director
              Nick Rossi, Republican Deputy Staff Director
   Rebecca Seidel, Republican General Counsel and Chief Investigator
                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on June 26, 2013....................................     1
Statement of Senator Rockefeller.................................     1
Statement of Senator Thune.......................................     4
Statement of Senator Chiesa......................................    41
Statement of Senator Warner......................................    44
Statement of Senator Blumenthal..................................    51
Statement of Senator Ayotte......................................    53

                               Witnesses

Dr. T. (Tjark) B.P.M. Tjin-A-Tsoi, Chief Executive Officer, 
  Netherlands Forensic Institute.................................     5
    Prepared statement...........................................     7
Michael R. Bromwich, Managing Principal, The Bromwich Group LLC 
  and Partner, Goodwin Procter LLP...............................    19
    Prepared statement...........................................    21
Gregory A. Schmunk, M.D., President, National Association of 
  Medical Examiners and Chief Medical Examiner, Polk County 
  Medical Examiner's Office......................................    25
    Prepared statement...........................................    27
Jill Spriggs, Secretary, Consortium of Forensic Science 
  Organizations..................................................    34
    Prepared statement...........................................    36

                                Appendix

Response to written questions submitted to Dr. T. (Tjark) Tjin-A-
  Tsoi by:
    Hon. John D. Rockefeller IV..................................    59
    Hon. Mark Warner.............................................    60
Response to written questions submitted to Michael R. Bromwich 
  by:
    Hon. John D. Rockefeller IV..................................    62
    Hon. Amy Klobuchar...........................................    63
    Hon. Mark Warner.............................................    63
Response to written questions submitted to Dr. Gregory A. Schmunk 
  by:
    Hon. John D. Rockefeller IV..................................    65
    Hon. Amy Klobuchar...........................................    67
    Hon. Mark Warner.............................................    68
Response to written questions submitted by Hon. John D. 
  Rockefeller IV to Jill Spriggs.................................    70

 
                  FROM THE LAB BENCH TO THE COURTROOM:

 
                  ADVANCING THE SCIENCE AND STANDARDS

 
                              OF FORENSICS

                              ----------                              

                        WEDNESDAY, JUNE 26, 2013

                                       U.S. Senate,
        Committee on Commerce, Science, and Transportation,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:40 p.m., in 
room SR-253, Russell Senate Office Building, Hon. John D. 
Rockefeller IV, Chairman of the Committee, presiding.

       OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV, 
                U.S. SENATOR FROM WEST VIRGINIA

    The Chairman. Apologies for being late.
    We have a chance to welcome today Senator Chiesa, who was 
attorney general 2 days ago?
    [Laughter.]
    Senator Chiesa. Three weeks ago.
    The Chairman. Three weeks ago.
    Senator Chiesa. Yes.
    The Chairman. And now you are here.
    Senator Chiesa. They made me resign the same day, yep, that 
the Governor wrote his letter. So, yes, I am thrilled to be 
here. Thank you.
    The Chairman. But you are not going to be here for just a 
day.
    Senator Chiesa. I am here until October.
    The Chairman. Until October? And then you are absolutely 
out? That is not fair.
    Senator Chiesa. Out and unemployed. I don't even have a job 
to go back to.
    [Laughter.]
    The Chairman. Out and unemployed?
    Senator Chiesa. Yes.
    Senator Thune. Mr. Chairman, if I might, we need to take 
full advantage of his expertise while he is here.
    The Chairman. Yes.
    Senator Thune. And, as you mentioned, he is a former 
Attorney General. I want to welcome Senator Chiesa to the 
Committee.
    The Chairman. I am sorry. That was----
    Senator Thune. No, no, no. I appreciate your willingness to 
welcome him here, as well.
    Senator Chiesa served as Assistant U.S. Attorney in New 
Jersey and, of course, New Jersey Attorney General. And his 
experience and expertise will be of great value, because many 
of the subjects under the jurisdiction of our Committee are 
areas that he has experience in, especially on the subject that 
we are going to talk about today, which is an important one.
    And I might add, too, Mr. Chairman, and I would warn our 
colleagues, that he does bring a love of sports, in particular 
his alma mater of Notre Dame, to the Committee. And so I 
suspect when we get into football season this fall, we will be 
hearing more from him on that subject, as well.
    But, anyway, delighted to have you here, Jeff.
    Senator Chiesa. Senator Thune, thank you very much. And I 
am still recovering from the Alabama loss, so, please----
    [Laughter.]
    Senator Chiesa.--nobody bring that up. Thank you.
    The Chairman. Hey, you have to know something. I am the 
only human being in the history of this country to be on the 
board of the University of Notre Dame and not be a Catholic.
    [Laughter.]
    Senator Chiesa. We are glad to have you.
    [Laughter.]
    The Chairman. And it was during the Vietnam War, when 
everybody else was going crazy. Everybody at Notre Dame, clean-
shaven, held the door open, respected people older than they 
were. And it all happened because Father Hesburgh sort of ran 
the place, right?
    Senator Chiesa. He sure did. He was the president when I 
was there. I graduated in 1987, which was Father Hesburgh's 
last year as president.
    The Chairman. Yes.
    Senator Chiesa. And he is a towering figure there.
    The Chairman. Yes. I think if they had had a board vote, I 
would have gotten no votes at all.
    [Laughter.]
    Senator Chiesa. I doubt that.
    The Chairman. But I loved it. Twelve years.
    Senator Chiesa. That is great.
    The Chairman. I loved it.
    Senator Chiesa. Terrific.
    The Chairman. Again, I apologize.
    Today's hearing continues a discussion that we started in 
the last Congress about improving the science used to catch 
criminals and solve crimes. And I have to tell you, I am really 
into this subject, and I am really happy that we are having 
this hearing.
    But before we get to the ongoing challenges in forensic 
science, I would like to start with an amazing success story. 
It is called ``DNA fingerprinting.''
    We have seen this incredible technology represented so many 
times on ``CSI,'' et cetera, et cetera, shows that people 
watch, me included, and other crime shows that we take it for 
granted. But we shouldn't. It didn't exist 30 years ago at all. 
Today, it is one of our judicial system's most important tools 
for convicting the guilty and exonerating the innocent.
    DNA fingerprinting has grown so effective and so precise 
that even a few cells collected from sweat, blood, or saliva 
can be enough to link a suspect to the crime and have it stand 
up, virtually non-challengeable. I am not a lawyer, but that is 
what my understanding is.
    So this really powerful forensic technology did not develop 
by chance. It was the result of careful, thoughtful 
collaboration between the law enforcement and the scientific 
communities, the two of which aren't always in agreement. And I 
think sometimes the law enforcement community wants to keep 
things the way they are, and sometimes they are suspicious 
about science getting into the area of deciding who is the 
victim and who is the perpetrator and all that kind of thing.
    But it was the result of a process in which technical 
experts developed objective measurements for determining 
whether DNA recovered at a crime scene precisely matched a 
suspect's DNA. And the word ``match'' is important, because 
there are so many words that are used now that can float back 
and forth and confuse things.
    In a hearing held last year, this committee heard testimony 
from a prominent molecular geneticist, Dr. Eric Lander, who in 
1989 served as an expert witness in one of the very first 
criminal trials to consider DNA evidence. Dr. Lander told us, 
during this trial, the scientific experts from the prosecution 
and the defense literally kicked the lawyers out--my apologies, 
Senator----
    [Laughter.]
    The Chairman.--so they could discuss the quality and 
validity of the DNA evidence, because it was the first shot at 
it.
    It was discussions like these, led by independent experts, 
that eventually turned DNA matching into a scientific process 
rather than a matter of subjective professional opinion and 
made DNA fingerprinting the gold standard of forensic science 
that it is, in fact, today.
    Unfortunately, the techniques used in some forensic 
disciplines, such as ballistics, bite mark, fingerprint 
analysis, et cetera, have not been subject to the rigorous 
scientific scrutiny that Dr. Lander and his colleagues applied 
to DNA matching. We now know that some of the forensic evidence 
presented in courtrooms proved unreliable and contributed to 
the wrongful conviction of innocent people.
    In 2005, Congress responded to this problem by asking the 
National Academy of Sciences to assemble a group of experts 
from the law enforcement and scientific communities to take a 
hard look at forensic science. Now, both of those communities 
were in this study. Four years later, the academy sent us this 
book. It was their book-length report, and it is called 
``Strengthening Forensic Science in the United States: A Path 
Forward.''
    Most of the people in this room are familiar with the 
findings of this report. They demand action. The report 
concluded that a number of the forensic techniques used in our 
country today were developed and practiced, ``with little 
foundation in scientific theory or analysis.'' The report 
called on Congress and the Federal Government to start building 
this missing scientific foundation.
    While we have not reacted to this challenge as quickly as I 
would have hoped, we are beginning to make some progress. 
President Obama in his budget requests funding to establish a 
new Forensic Science Advisory Committee--there are lots of 
advisory committees, but maybe this will be a really important 
one--and increases funding for NIST's work--NIST, largely 
unknown to most of America but treasured in this room--their 
work in forensic science, and proposes to transfer funds from 
the Department of Justice to NIST--and my understanding is 
there are a few Department of Justice people here; they may not 
be entirely happy about that fact, if it comes to be--and the 
National Science Foundation to further address this problem. In 
other words, a pretty much all-out government assault to try to 
get to the basis of the science.
    In the next few weeks, I will introduce an updated version 
of my bill submitted in the last Congress, which didn't get 
anywhere, S. 3378, directing our Federal science agencies to 
increase forensic science research and standards development 
useful to the law enforcement community.
    Promoting truth and justice in our judicial system is a 
bipartisan cause, it would seem to me. And I invite all of my 
colleagues to look at this subject very carefully and even at 
the bill when it comes along.
    And I call now on my distinguished, as I call him, co-
Chair, Senator John Thune of the great urban state of South 
Dakota.
    [Laughter.]

                 STATEMENT OF HON. JOHN THUNE, 
                 U.S. SENATOR FROM SOUTH DAKOTA

    Senator Thune. Thank you, Mr. Chairman. And thanks for 
holding this hearing. This hearing, as you said, examines the 
state of forensic science and related standards and the 
challenges facing the forensic science community.
    Popular television shows like ``CSI,'' ``NCIS,'' and ``Law 
and Order,'' to name a few which I know the chairman TiVos, 
have showcased the role that forensic science can play in 
helping law enforcement carry out investigations and convict 
criminals. However, these shows can also create the 
misimpression that all courtroom evidence that is presented as 
scientific evidence has been subjected to high-tech, foolproof 
analysis and that every state and local crime lab around the 
country has easy access to these sophisticated lab 
technologies. Unfortunately, this is not always the case. A 
National Academies report issued 4 years ago raised serious 
concerns about the state of forensic science and, among other 
things, called for structural reforms in new research.
    While the forensic science community did not embrace all of 
the report's reform recommendations, there seems to be general 
agreement that law enforcement, prosecutors, and crime labs 
would benefit from greater research and training efforts to 
increase crime lab capacity and accuracy and to strengthen the 
scientific foundations of forensic science. For instance, 
advances in forensic DNA analysis have improved the strength of 
evidence that can put criminals behind bars and also clear the 
innocent.
    However, as we explore ways to improve forensic science, we 
must be careful not to undermine or threaten the ability of 
local prosecutors and other law enforcement professionals to 
prosecute cases by fostering unrealistic expectations that 
every case can be solved through science.
    We must also avoid unintentionally and undeservedly casting 
doubt on the good work that the vast majority of practitioners 
perform. Federal efforts to improve forensic science should 
utilize input from and be cognizant of the needs of state and 
local practitioners in both the forensic and law enforcement 
fields.
    I would like to hear today about the extent of involvement 
of state and local practitioners in the National Commission on 
Forensic Science recently established by the administration. 
Along those same lines, I would like to hear the witnesses' 
views about how to best leverage existing Federal efforts and 
longstanding partnerships with state and local forensic 
scientists to improve forensic sciences.
    I also look forward to hearing your thoughts about what the 
National Institute of Standards and Technology, NIST, under 
this Committee's jurisdiction, could do to advance forensic 
science standards and how the Department of Justice and NIST 
could best work together to enhance both public safety and 
confidence in our system of justice.
    So I look forward to hearing the testimony of our witnesses 
today. I would also like to thank all of the witnesses for 
being here, some of whom have flown in from across the country 
and even from abroad.
    So thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Thune, very much.
    What I would like to do is just have each of you give your 
statements. And, incidentally, don't be depressed by looking 
around here and not seeing--I mean, the three of us are pretty 
good.
    [Laughter.]
    The Chairman. But there are eight more senators who have 
said they are going to be here. And I have them written down 
right here, so Senator Thune and I will be observing that list 
and those appearances closely.
    [Laughter.]
    The Chairman. Dr. Tjark Tsin-A-Tsoi is a Ph.D., Chief 
Executive Officer of the Netherlands Forensic Institute.
    You will be the first to speak, but let me introduce each 
of you.
    Mr. Michael Bromwich, who is Managing Principal of The 
Bromwich Group, LLC; Partner, Goodwin Procter, LLP; former 
Inspector General, Department of Justice.
    Dr. Gregory Schmunk, President, National Association of 
Medical Examiners, Chief Medical Examiner.
    And Ms. Jill Spriggs, Secretary, Consortium of Forensic 
Science Organizations; Laboratory Director, Office of the 
District Attorney, Sacramento County Laboratory of Forensic 
Services.
    So, Doctor, if you wish to go ahead, please do so.
    Well, you are all doctors.
    [Laughter.]
    The Chairman. You, sir.

STATEMENT OF DR. T. (TJARK) B.P.M. TJIN-A-TSOI, CHIEF EXECUTIVE 
            OFFICER, NETHERLANDS FORENSIC INSTITUTE

    Mr. Tjin-A-Tsoi. Good afternoon, Chairman Rockefeller and 
Ranking Member Thune and members of the Committee. It is an 
honor for me, as Chief Executive Officer of the Netherlands 
Forensic Institute, to be invited here to testify before your 
committee on the important topic of forensic sciences.
    New science and technology are transforming the 
capabilities of forensic laboratories. As a result of this, 
forensic science is changing from having a supporting role to 
becoming a playmaker in criminal investigations and security.
    The promise of forensic science is that it will 
increasingly enable quick and reliable reconstructions of 
events, as well as the identification of subjects, through 
scientifically validated means. Furthermore, it will do so in a 
relatively cost-effective way, with minimal impact on innocent 
civilians.
    As such, forensic sciences are set to play a role similar 
to chemistry and biology in health care and automation in 
manufacturing. However, in order to live up to that promise, 
the sector still has some challenges to overcome. These 
challenges are a result of the way forensic science and crime 
labs have developed over the years.
    An important challenge concerns the scientific validity of 
the methods used by forensic scientists to interpret evidence, 
as was discussed in the 2009 National Academy of Sciences 
report.
    Scientific research is essential to strengthen the 
objectivity of forensic interpretations and to determine the 
strengths and limitations of forensic methods. This is the 
background of the MOU the National Institutes of Standards and 
Technology and the Netherlands Forensics Institute signed in 
November 2012.
    Furthermore, through scientific research, the sector can 
move toward more integrated, interdisciplinary information 
services aimed not only at identifying the source of traces but 
also at reconstructing the human events that led up to them, 
the human activities that led up to them.
    The second challenge concerns the strong technology-driven 
growth of the forensic sector during the past 2 decades, even 
in jurisdictions where the crime rate has been falling. 
Forensic sciences are increasingly becoming mission-critical 
from the point of view of end-users. Nevertheless, the forensic 
community and its stakeholders have been struggling to deal 
with this, essentially, very good success.
    In the absence of adequate mechanisms to coordinate supply 
and demand and in view of a somewhat reserved attitude in the 
sector toward professionalization of governance and process 
management, demand growth has resulted in backlogs and long 
delivery times in many labs around the world. These backlogs 
stand in the way of delivering the full value of forensic 
sciences to users and obstruct the scientific development of 
the field as a whole.
    The Netherlands Forensic Institute, which is an independent 
and not-for-profit government agency with approximately 650 
employees, was facing the same problem 6 years ago. The policy 
paper that is in your possession describes the journey of the 
NFI over the past 6 years. In this period, the NFI changed its 
governance and business model, which involved shaping a more 
realistic and businesslike relationship with its end-users and 
other stakeholders.
    These changes have resulted in the elimination of the 
entire backlog of 18,000 cases, a reduction of the average 
delivery time of more than 90 percent, and customer 
satisfaction levels that are now comparable to the private 
sector. As the weight of backlogs was lifted, the ability to 
initiate research and development programs was enhanced, as 
well.
    Even though some of these changes initially went against 
the grain of the stakeholder network in which forensic 
laboratories operate, in the end the results were welcomed 
universally.
    Finally, I would like to discuss a topic that is related to 
all the aforementioned issues. It concerns the organizational 
fragmentation of forensic infrastructure. Not only is there 
much to be gained if the dozens of different fields of 
expertise were to cooperate more intensively, the 
organizational structure of the sector is such that there is a 
large number of relatively small and local labs that are 
managed separately.
    Fragmentation tends to have the effect that economy of 
scale and scope are not achieved and renders expensive R&D 
programs impossible due to the absence of critical mass. 
Furthermore, it often gives rise to problems relating to 
flexibility and continuity. Partly because of this, most 
forensic laboratories around the world operate like pure 
production units, even though they have the knowledge and the 
customer exposure that could propel forensic sciences forward.
    For that reason, consolidation, specialization, or more 
formalized cooperation agreements could be considered in order 
for the field to utilize its full potential and develop new 
capabilities.
    Thank you for your attention, and I am happy to answer any 
questions you might have.
    [The prepared statement of Mr. Tjin-A-Tsoi follows:]

    Prepared Statement of Dr. T. (Tjark) B.P.M. Tjin-A-Tsoi, Chief 
           Executive Officer, Netherlands Forensic Institute
    Good afternoon Chairman Rockefeller, Ranking Member Thune and 
members of the Committee. It is an honor for me, as Chief Executive 
Officer of the Netherlands Forensic Institute, to be invited here to 
testify before your committee on the important topic of forensic 
sciences.
    New science and technology are transforming the capabilities of 
forensic laboratories. As a result of this, forensic science is 
changing from having a supporting role to becoming a playmaker in 
criminal investigations and security. The promise of forensic sciences 
is that it will increasingly enable quick and reliable reconstructions 
of events, as well as the identification of suspects, through 
scientifically validated means. Furthermore, it will do so in a 
relatively cost effective way, with minimal impact on innocent 
civilians.
    As such, forensic sciences are set to play a role similar to 
chemistry and biology in health care, and automation in manufacturing.
    However, in order to live up to that promise, the sector still has 
some challenges to overcome. These challenges are a result of the way 
forensic sciences and crime labs have developed over the years.
    An important challenge concerns the scientific validity of the 
methods used by forensic scientists to interpret evidence, as was 
discussed in a well-known 2009 National Academy of Sciences report. 
Scientific research is essential to strengthen the objectivity of 
forensic interpretations and to determine the strengths and limitations 
of forensic methods. This is the background of the Memorandum of 
Understanding (MoU) the National Institute of Standards and Technology 
and the Netherlands Forensic Institute signed in November 2012.
    Furthermore, through scientific research, the sector can move 
towards more integrated and interdisciplinary information services, 
aimed not only at identifying the source of traces but also at 
reconstructing the human activities that led up to them.
    The second challenge concerns the strong technology driven growth 
of the forensic sector during the past two decades, even in 
jurisdictions where crime rates have been falling. Forensic sciences 
are increasingly becoming mission critical from the point of view of 
end users. Nevertheless, the forensic community and its stakeholders 
have struggled to deal with what is essentially an enormous success. In 
the absence of adequate mechanisms to coordinate supply and demand, and 
in view of a somewhat reserved attitude in the sector towards 
professionalization of governance and process management, demand growth 
has resulted in backlogs and long delivery times in many labs around 
the world. These backlogs stand in the way of delivering the full value 
of forensic sciences to users, and obstruct the scientific development 
of the field as a whole.
    The Netherlands Forensic Institute, which is an independent and 
not-for-profit government agency with approximately 650 employees, was 
facing the same problems six years ago. The policy paper that is in 
your possession describes the journey of the NFI over the past six 
years. In this period the NFI changed its governance and business 
model, which involved shaping a more realistic and businesslike 
relationship with its end users and other stakeholders. These changes 
have resulted in the elimination of the entire backlog of 18,000 cases, 
a reduction of the average delivery time by over 90 percent, and 
customer satisfaction levels that are now comparable to the private 
sector. As the weight of backlogs was lifted, the ability to initiate 
research and development programs was enhanced as well.
    Even though some of the changes initially went against the grain of 
the stakeholder network in which forensic laboratories operate, in the 
end the results were welcomed universally.
    Finally, I would like to discuss a topic that is related to all the 
aforementioned issues. It concerns the organizational fragmentation of 
the forensic infrastructure. Not only is there much to be gained if the 
dozens of different fields of expertise were to cooperate more 
intensively, the organizational structure of the sector is such that 
there is a large number of relatively small and local labs, that are 
managed separately. Fragmentation tends to have the effect that economy 
of scale and scope are not achieved, and renders expensive R&D programs 
impossible due to the absence of critical mass. Furthermore, it often 
gives rise to problems relating to flexibility and continuity. Partly 
because of this, most forensic laboratories around the world operate 
like pure production units, even though they have the knowledge and 
customer exposure that could propel forensic sciences forward. For that 
reason, consolidation, specialization, or more formalized cooperation 
arrangements could be considered, in order for the field to utilize its 
full potential and develop new capabilities.
    Thank you for your attention and I am happy to answer any questions 
you might have.
                                 ______
                                 

                               March 2013

     Trends, Challenges and Strategy in the Forensic Science Sector

Dr. T.B.P.M. Tjin-A-Tsoi, Chief Executive Officer, Netherlands Forensic 
                             Institute \1\
---------------------------------------------------------------------------

    \1\ The Netherlands Forensic Institute is an independent and not-
for-profit government agency. It is part of the Ministry of Security 
and Justice.
---------------------------------------------------------------------------
Introduction
    The forensic science sector is in transition. New insights, 
technologies, and customers, combined with falling costs and increasing 
capabilities cause the sector to grow rapidly. As a consequence the 
role of forensic laboratories is changing. Today's laboratories are 
able to investigate more and a greater variety of traces, and to 
extract more information from less material, than ever before. Forensic 
IT \2\ has opened a completely new category of investigation, as 
specialists explore digital traces on information carriers such as cell 
phones, laptops, and car computers. Meanwhile, advances in the study of 
DNA have made it possible to investigate minute traces and even provide 
information on the physical characteristics of the donor. In addition, 
all this information can now be produced more quickly than was ever 
thought possible. Due to these developments, rapid and well-founded 
reconstructions of events based on trace patterns found at crime scenes 
are becoming a tantalizing possibility. And these advantages come at a 
lower cost than many conventional investigative techniques.
---------------------------------------------------------------------------
    \2\ Forensic Information Technology
---------------------------------------------------------------------------
    As a result, the role of forensic science is changing. Whereas 
before, it was cast in a supporting role, it is now set to become the 
playmaker in many types of investigation, providing quick and reliable 
information on scenarios and suspects and thus, in a sense, directing 
the efforts of investigators. At the same time, forensics is changing 
from a profession in which individual experience and expertise of 
practitioners play a dominant role to one where skilled knowledge 
workers are integrated in an increasingly complex infrastructure of 
empirical science and cutting-edge technology.
    Taking advantage of these developments to achieve the full 
potential of the forensic sector will naturally require some 
adjustment. Despite the sector's rapid growth in recent years, its 
structure remains largely unchanged. With more than 400 forensic 
laboratories in the U.S. alone and a somewhat smaller, but still very 
large, number in Europe, it is a rather fragmented field. Most of these 
laboratories are primarily production units that lack sufficient mass 
or funding to conduct research, or to develop innovative products and 
services. Furthermore, this lack of critical mass creates major 
organizational vulnerabilities, which are in part responsible for the 
backlogs that haunt many forensic laboratories.
    This paper presents an overview, from the standpoint of the 
Netherlands Forensic Institute (NFI), of some of the trends and 
pressures that will affect the structure and governance of the sector 
today and in the years to come. The paper also outlines a way forward, 
based on measures that the NFI has itself taken to address these 
challenges.
1. Growth--one of the main trends in forensics today
    One of the clearest and most important trends in forensics is its 
remarkable growth over the past 15 years. At the NFI, the number of 
cases handled per year is now six times what it was in 2000. In fact, 
the caseload has grown more in the past 15 years than in the previous 
50. In the same period, the NFI's workforce has nearly tripled, growing 
from about 200 to 600 people. This is clearly part of a larger trend, 
with caseloads growing steadily at forensic laboratories around the 
world. Although the recent budget cuts and the economic downturn may 
temporarily slow the growth of the forensic sector, the fundamental 
drivers of change persist and will continue to assert themselves.
Factors driving growth
    The growth in forensics has been driven by three main factors: (1) 
the introduction of new technological capabilities, (2) increased 
general awareness among customers regarding the value and efficiency of 
forensic science, and (3) the advent of new types of customers from 
outside the scope of traditional forensics. Let us look at these 
factors in turn.
New technological capabilities
    Much of the recent growth in forensics has resulted from the 
introduction of new technologies, most notably high-tech biometrics 
(predominantly forensic DNA), forensic information technology (IT), and 
forensic chemistry. Just twenty years ago, the first two of these 
disciplines were not practiced at the NFI; today, they are the largest 
and fastest growing disciplines at the Institute.
    That these new technologies should lead to growth is not 
surprising. When any new investigative technique is introduced, the 
pressure to put it into practice quickly increases. Of course, in 
forensics--as in other fields (e.g., health care)--ethical and quality 
issues may need to be resolved before a new technique can be used. 
Otherwise, if it provides valuable information, there will be a strong 
demand for it to be used immediately and on a wide scale. Since, in 
this way, any new scientific insight or technology creates its own 
demand, forensic innovations are likely to continue to spur growth in 
the field.
    It is significant that the three disciplines mentioned above 
(forensic DNA, IT, and chemistry) do not simply add new and refined 
technological capabilities to the forensics toolbox. They also address 
new classes of trace evidence--classes that previously may not have 
been collected and analyzed. This applies both to biometrics and to 
forensic IT, but the discipline of forensic IT is particularly 
significant in this context, as it opens up a whole new world of trace 
evidence. Today, it is almost impossible to prevent leaving digital 
traces--in cell phones, on computers, on the Internet, in digital 
surveillance cameras, in an ATM, in a navigation system, in a car's on-
board computer, and so on. People have a symbiotic relationship with 
both the physical and the digital world. This has profound consequences 
for forensics, because everything we do leaves a trace in these worlds. 
It will therefore become increasingly important that forensic service 
providers be able to retrieve relevant data from all available digital 
sources and to analyze these intelligently.
    Of course, additional growth is also generated through the 
continuous improvement of existing technologies. As they become more 
sensitive, the amount of relevant information that can be retrieved 
from traces will increase, as will the number of traces that can be 
analyzed in the first place. For example, 15 years ago, a relatively 
large sample was needed for reliable forensic DNA analysis. Today, 
forensic laboratories need just a fraction of that: often no more than 
50 picograms. Traces that in the past would have yielded no relevant 
information can now change the course of an investigation.
    Moreover, advances in technology mean that forensic laboratories 
are able to do much more with the same resources (in money terms) than 
before--so that the value of the laboratory as a whole has increased 
significantly.
Greater awareness of the value, efficiency and potential of forensics
    The use of forensic investigations has increased not only due to 
the advent of new technologies but also due to an increased awareness 
of what forensics has to offer. Existing and potential end-users, the 
press and the public are all more aware today of the extent of forensic 
capabilities. This, in turn, is generating an increasing demand. 
Forensic investigation is gradually assuming a more central and high-
profile role, and is becoming an essential tool for law enforcement, 
homeland defense, and others entrusted with maintaining justice, social 
order and security. Increasingly, court cases depend on DNA evidence, 
security and terrorism threats are being prevented on the basis of 
digital traces, and a wide variety of investigators are taking an 
interest in what forensics has to offer them.
    Historically, forensic science has served primarily as the tool of 
prosecutors in preparation for trial, not necessarily as a tool of 
investigators. With the advent of faster methods and forensic databases 
(DNA, fingerprints, firearms, etc.) over the past several decades, 
forensic science is becoming an invaluable tool in criminal 
investigations and intelligence, even before a suspect has been 
identified. For example, investigators can now compare questioned 
traces collected from crime scenes or victims with large database pools 
of known perpetrators, frequently leading to the identification of 
suspects who would otherwise remain unknown.
    As users become more aware of the benefits of the new tools and 
expertise available, they see new ways to use forensic science. For 
example, the police are under great pressure to apprehend criminals 
while at the same time ruling out innocent civilians as suspects. 
Forensics can help them meet that need by providing reliable 
information through technical means (i.e., without harassing innocent 
citizens). This increased awareness of what advanced forensics has to 
offer is leading to increased demand on the part of traditional 
customers of forensics laboratories.
New customers
    The capabilities of forensic service providers have not passed 
unnoticed in domains outside of criminal justice and law enforcement. 
In fact, a wide range of governmental organizations--involved in 
everything from defense and intelligence to administrative law and 
regulatory oversight--are using forensics in their investigations. This 
new demand for forensic science is a main driver of growth in the 
sector as a whole. Nevertheless, not many traditional crime labs are 
taking advantage of this fact.
    Of course, new customers have different needs from those within the 
criminal justice system (police, prosecutors and the judiciary). For 
example, the type of information required and the balance between speed 
and accuracy may be quite different. Accordingly, in recent years, many 
of these organizations have created their own specialized forensic 
units and, in some organizations, their own databases. However, these 
units are often small and somewhat disconnected from the wider forensic 
community. This has increased the fragmentation of the forensics sector 
as a whole, and has occasionally resulted in some organizations 
``reinventing the wheel.'' Nonetheless, these changes also represent an 
opportunity for the forensic sector. Serving a broader customer base 
not only reduces organizational vulnerability, but can also give rise 
to improved services at lower costs through economies of scale. The 
atypical requirements of new types of customers stimulate innovation 
and drive the development of new knowledge, which will ultimately 
benefit all customers.
    As a result of these shifts, a new outlook of the forensic 
community is emerging. It no longer solely provides forensic services 
in the fields of law enforcement and criminal justice. Forensic 
institutes become first and foremost high-tech knowledge hubs, filled 
with knowledge workers who deliver their services to the (mostly 
government) agencies that may require these and who enrich the hub in 
the process. At the NFI, this process could be observed at first hand: 
by serving non-traditional customers, inside and outside of the 
Netherlands in 17 countries (at the time of writing), the organization 
has acquired capabilities and experience that it would not otherwise 
have been able to obtain, and that are now also available to 
``traditional'' customers. As knowledge hubs, forensic institutes 
become more valuable if they enlarge the network to which they belong 
and in which the operate.
    Non-traditional customers include ministries of defense, 
municipalities, intelligence agencies, benefit and tax fraud 
investigators, the financial market regulator, transport safety boards, 
competition authorities, and international bodies, such as the 
international tribunals and criminal courts, but also Europol, 
Interpol, the IAEA, and the United Nations.
2. Customer focus
    The current heightened awareness of forensic science, together with 
the recognition of its value, means that users and customers not only 
make greater use of it, but also place greater reliance on it. In 
short, forensics has moved from occupying a supporting--almost behind-
the-scenes--role to becoming a key protagonist. It has, for many users, 
become ``mission critical.'' As a result, customers are becoming 
increasingly demanding, subjecting what they receive from their 
suppliers to ever-closer scrutiny. Consequently, suppliers will need to 
pay much more attention to their customers' needs.
Identifying customers' primary needs
    Forensic laboratories supply their customers with ``value-added'' 
information--specifically, about past events and behaviors, as well as 
about the individuals involved in these events. This information is 
obtained from the traces that resulted from these events and behaviors. 
All customers want the supplier laboratory to provide as much relevant 
information from available traces as possible, and they want the 
information to be reliable and objective. They do not want the 
information to depend on the particular forensic investigator handling 
the case; and, if necessary, they want the forensic investigators to be 
able to show a solid scientific basis for their conclusions.
    Customers also want the laboratory to be able to handle as many 
trace investigations as possible, because in general (though not 
always) a larger number of trace investigations yields more 
information. It also reduces the risk, down the line, that police 
investigators or prosecutors will be criticized for failing to order 
trace investigations that are potentially exculpatory, or for failing 
to do everything possible to apprehend the criminals. When forensic 
laboratories have a fixed budget, the drive to increase the total 
output of the laboratory implies that the average cost per 
investigation has to be reduced.
    To most customers of forensic laboratories, receiving the results 
of the forensic investigation as quickly as possible is extremely 
important. This is especially true in the intelligence gathering and 
investigation phases, when time is of the essence. After a crime has 
been committed, the first 48 hours are often critical in the 
investigation. In the intelligence phase, being able to analyze traces 
quickly and reliably can mean the difference between being able to 
prevent a crime (such as a terrorist attack) or not. The value and 
impact of forensics increase greatly when results can be delivered 
quickly.
    In other words, the primary needs of the customer can be summarized 
as follows: more, better, faster, cheaper. In fact, ``more'', 
``faster'' and ``cheaper'' are highly correlated from an organizational 
and governance point of view, as will be discussed below. The forensic 
community has historically paid less passionate attention to these 
customer needs than to the technical content of the forensic trades and 
the individual skills of the practitioners. In most cases, the costs of 
individual forensic investigations are not considered at all, either 
directly or indirectly. Many forensic investigators, laboratory 
directors, and even customers, actually resist the idea that costs 
should play any role in the decision-making process before committing 
to forensic investigations. The implicit belief seems to be that one 
cannot and should not let financial considerations play such a key role 
when important societal issues (such as apprehending a criminal and 
dispensing justice) are at stake. However, since open-ended financial 
arrangements are an illusion, the practical results of this way of 
thinking are backlogs, stagnation, and a far-from-optimal--even 
unknowing--allocation of scarce resources.
    All this is changing, however, and will continue to change due to 
the increasing reliance on forensic investigations and the pressure 
this puts on forensic laboratories. The same can be said about the 
drive to increase the information value extracted from traces, as well 
as the scientific basis and objectivity of forensic conclusions. Both 
require focused and customer-oriented research and development. 
However, at the moment, partly because of the arts-and-crafts culture 
of the forensic field, and partly because of the fragmented structure 
of the sector (see the previous section), there is a lack of R&D of 
this type.
Achieving more, better, and more valuable information
    Forensic laboratories can increase the value of the information 
they provide in at least three ways. The first is by increasing 
reliability by strengthening objectivity and scientific underpinning. 
The second is by providing more information at ``activity'' level, 
i.e., information that reveals how traces fit together in larger 
patterns of crime related activity. Finally, laboratories can enhance 
the information they offer by developing tools and methods that bring 
to light traces that have hitherto been unavailable because they are 
imperceptible to the human senses.
    Improving scientific underpinning--Up to just a few decades ago, 
forensic science had more in common with a collection of arts and 
crafts than with a mature science. In some areas, forensics is 
essentially still in the pre-scientific era, a fact reflected in the 
observation by the National Academy of Sciences (NAS) that some 
forensic disciplines lack a scientific basis.\3\ Clearly, if the 
interpretations made by forensic scientists are not objective or lack a 
strong scientific underpinning, the value of the information and 
interpretations forensic labs provide is diminished. The arts-and-
crafts culture, the small scale of most forensic laboratories, and the 
high pressure on throughput, have had the result that the scientific 
and technological development of the field have not been as rapid as it 
could have been. In addition, knowledge is often not shared and 
managed, but resides with skilled, individual practitioners. In 
essence, these professionals become their own measuring instruments, 
and the database from which they operate and evaluate forensic evidence 
is based on personal experience. Consequently, interpretations are more 
subjective than is often realized. To a certain extent, this is 
probably unavoidable, but it would be too easy to say that it is 
entirely unavoidable. With empirical scientific research, it should be 
possible to strengthen the scientific basis of many forensic 
disciplines.
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    \3\ Strengthening Forensic Science in the United States: A Path 
Forward, NAS, 2009: ``The simple reality is that the interpretation of 
evidence is not always based on scientific studies to determine its 
validity. This is a serious problem. Although research has been done in 
some disciplines, there is a notable dearth of peer-reviewed, published 
studies establishing the scientific bases and validity of many forensic 
methods'' . . . ``The fact is that many forensic tests have never been 
exposed to stringent scientific scrutiny. Most of these techniques were 
developed in crime laboratories to aid the investigation of evidence 
from a particular crime scene, and researching their limitations and 
foundations was never a top priority.''
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    Providing activity-level information--A second way in which 
laboratories can increase the value of the information they deliver is 
to provide customers with more information at ``activity'' level. Many 
forensic laboratories restrict themselves to ``source level'' 
investigations, focusing on the origin and composition of a given 
trace. However, from the point of view of the customer, it is also 
important how and when the trace was made; i.e., what events transpired 
to leave a certain trace (or pattern of traces). In the case of DNA and 
latent fingerprints found at a crime scene, for instance, it would be 
useful to know not only to whom the DNA or latent fingerprints belong, 
but also what activity led to the evidence being deposited there. Was 
it an activity related to the crime, or was it entirely unrelated? So 
far, relatively little research has been carried out to increase the 
capabilities of forensic investigations at activity level. In those 
cases where forensic practitioners have included some analysis at 
activity level in their reports, it is often based on the 
practitioner's particular experience, rather than any empirical 
scientific research. However, the added value provided by activity-
level information suggests that such research is highly desirable. It 
is, however, expensive, time-consuming, and requires substantial case-
loads to be able to create the necessary empirical databases. Critical 
mass and cooperation among laboratories are both essential in this 
regard.
    Detecting, recording, and retrieving minute traces--A third way in 
which laboratories can increase the value of the information they 
provide to customers is to gain access to traces left at the crime 
scene that are currently too small to detect with the human senses. 
Detecting such traces is becoming a new ``holy grail'' of forensics. 
Although it is currently possible to investigate such minute traces in 
the laboratory, it is still impossible (within a reasonable timeframe) 
to detect, register and represent all these important traces not merely 
in isolation but also in the three-dimensional patterns in which they 
occur at the crime scene. It may be possible to investigate 50 
picograms of cell material containing DNA in the laboratory, but how 
does one find such small quantities at a crime scene? This is certainly 
an important R&D challenge. (Incidentally, it should be noted that the 
growing numbers of traces that will become available in this way make 
it all the more important that forensic laboratories take steps to 
increase their efficiency and productivity, because increased numbers 
of traces will steadily increase the caseload: see below.)
Shortening delivery times
    As was discussed above, quick delivery is one of the most important 
needs that customers of forensic laboratories articulate. In fact, as 
forensic investigations are increasingly becoming ``mission critical'' 
to customers, forensic laboratories have to reconcile themselves to the 
fact that customers--if given the choice--would like the results 
immediately. This does not mean that customers in all circumstances 
need the results immediately, or that they are always in a position to 
act on the information the moment it is provided. However, regardless 
of how fast investigators are able to act on the laboratory's results, 
it is a laudable goal for forensic laboratories to reduce the odds of 
being the choke point in the critical path of criminal investigations. 
Furthermore, suppliers (forensic laboratories in this case) usually do 
not have all the information necessary to determine what is important 
to the customer, and there may be subjective or even emotional (but not 
necessarily irrelevant) reasons why customers want fast delivery. 
However, historically the sense of urgency felt by customers regarding 
fast delivery was not always shared fully by the forensic community. 
The NFI was no exception. However, as will be discussed below, the 
problem is not caused exclusively by a lack of focus on speed by 
forensic laboratories. It is also caused by the institutional 
arrangements and financing structures in which the forensic sector 
operates.
    There are at least three ways in which delivery times can be 
shortened: by solving the backlog problem; by improving process 
management; and by creating new, faster technologies.
    The backlog problem--Two factors that have a significant impact on 
the caseload of forensic laboratories are the crime rate and the 
scientific and technological capabilities of the laboratories. The way 
in which the crime rate impacts forensic laboratories is similar to the 
way it influences the broader law enforcement community. However, the 
impact of scientific progress and technological innovation is far more 
complicated, and clearly sets forensic labs apart from their main 
customers. Advances in forensic technology tend to increase the 
caseload of laboratories--sometimes dramatically--even when the crime 
rate is going down. Conversely, to some extent powerful forensic 
techniques replace more ``traditional'' and time-consuming 
investigative methods, or at a minimum can provide more focus to a 
criminal investigation. These phenomena could be clearly observed in 
The Netherlands, where the crime rate has gone down in the past decade, 
while the number of cases the NFI handles has increased by a factor of 
six. This increase is almost exclusively confined to the forensic 
fields that have experienced significant technological advances. The 
largest increase in demand has been witnessed in forensic DNA analysis, 
forensic IT, and forensic chemistry. However, more recently, 
technological and scientific advances in other fields--such as new 
fingermark detection methods and the evaluation of partial 
fingermarks--have also had the effect of greatly increasing the demand 
in these fields. As soon as new, powerful and validated forensic 
techniques become available, customers want to use them in their 
criminal investigations.
    These ``technology-driven'' demand shocks, during which the demand 
for certain forensic services increases quickly, are often not 
adequately factored into the budgetary models used to allocate 
resources to the different entities within the law enforcement 
community (if such models exist at all). Forensic laboratories are 
usually not paid for the amount of work they are commissioned to do 
(the demand), but are instead given a fixed budget that is supposed to 
cover all the work sent to them. An increase in demand caused, for 
example, by an innovative forensic method, does not automatically lead 
to a commensurate increase in financing, which could then be invested 
to create additional production capacity. Conversely, demand is not 
tempered by a ``fee'', and most labs do not have production agreements 
(i.e., Service Level Agreements) with their customers, limiting the 
amount of work that can be commissioned. Forensic investigations cost 
money--sometimes a lot of money--but the parties commissioning these 
investigations are often not conscious of this fact. For them, the 
forensic investigations are ``free'', and they behave as if there are 
no budgetary or capacity constraints. This is the double-edged sword 
that has created backlogs all over the world. Due to the existing 
institutional arrangements and funding structures, budgets are not 
adjusted quickly enough when demand shocks present themselves, and 
customers are not disciplined by any kind of fee structure, or 
production agreements, that signal to them that forensic investigations 
cost money and that resources are limited. The inevitable result of 
this is a backlog. The fields that are hardest hit are often those that 
are most dynamic and that show the most scientific and technological 
progress. The huge DNA backlogs in many forensic laboratories around 
the world are an illustration of this phenomenon.
    When resources are limited, as is invariably the case, 
prioritization becomes a necessity. However, the fact that forensic 
services are treated as if they were ``free of charge'' robs customers 
of the opportunity to evaluate costs versus potential benefits, given 
the fact that resources are limited. The inevitable result is that 
scarce resources are not being used in the most efficient and effective 
way, and significant waste is occurring even as backlogs pile up.
    Some may object (for a variety of reasons) to any notion of 
``charging'' for forensic investigations. This is perhaps in part 
because they fear commercialization. However, what is being discussed 
here is not some sort of commercialization scheme, but rather a more 
efficient allocation method, i.e., one that prevents backlogs and 
waste, and leads to more informed and conscious prioritization 
mechanisms. It requires a repudiation of the double illusion that 
forensic investigations cost nothing and that forensic laboratories 
have unlimited capacity. It does not necessitate the establishment of 
any for-profit entity. Indeed, given the large number of cases that 
pass through forensic laboratories each month, it is neither practical 
nor necessary for them to start sending out bills for every 
investigation completed. This would create a huge and undesirable 
bureaucracy between agencies. An easier way--and one that has been 
implemented at the NFI--is to reach an annual agreement with the main 
customers on the number of forensic services (of different types) that 
the laboratory will deliver during the following year. The total 
``fee'' of these SLAs is then equal to the agreed budget for the 
laboratory. Any additional work is fee based and requires separate 
agreements.\4\
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    \4\ For jurisdictions in which the implementation of fee structures 
is simply not an available option, the creation of service level 
agreements can still be one of the most effective ways to manage supply 
and demand. Nevertheless, in order to link service levels (supply) and 
budgets, one still needs a way to calculate the cost of the services 
delivered.
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    Improving process management--Historically, the field of forensic 
science is a collection of communities of craftsmen and highly educated 
experts in a large number of different fields. Forensic laboratories 
often contain many different forensic disciplines (more than 30 at the 
NFI) and sometimes tend to resemble a collection of fiefdoms. Deep 
interdisciplinary cooperation is relatively rare, and individualism is 
an often-dysfunctional part of the culture. Practitioners in the field 
of forensic science are highly committed, closely focused on the 
content and quality of their work and, in general, not particularly 
interested in process management, efficiency, delivery times, costs, or 
other matters of this nature. Because of this, process optimization has 
been somewhat neglected, resulting in practices that are often less 
efficient than they should be.
    By applying modern process redesign methods, spectacular progress 
can be made towards faster delivery times, higher productivity, and 
lower costs. Process redesign can also help with backlog reduction. 
Many of these methods are data-driven and quantitative, which means 
that natural scientists and engineers can relate to the methodology. To 
restructure and improve the processes at the NFI, the methodology known 
as ``Lean Six Sigma'' \5\ has been introduced. A large number of 
employees (up to a third of the total workforce) were trained in basic 
or advanced process redesign skills, so that process management became 
part of the culture and vocabulary of the organization, rather than an 
unpopular instrument imposed by management.
---------------------------------------------------------------------------
    \5\ Michael L. George, Lean Six Sigma: Combining Six Sigma Quality 
with Lean Speed, McGraw-Hill Osbourne Media, 2002
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    Creating faster technologies--Many forensic laboratories are not 
active in R&D or product development, while those that are tend to 
focus on exploring scientific matters or improving existing techniques. 
R&D specifically aimed at faster production is relatively rare. 
Nevertheless, significant gains can be made by refocusing R&D more 
closely on techniques and methods that will accelerate processing.
Experiences at the NFI
    Like many other forensic institutes around the world, the NFI used 
to have a significant backlog problem. However, the organization has 
now successfully implemented a number of the measures described above, 
with the result that the backlog has been eliminated. The following 
section describes three of these measures in more detail: introducing 
Service Level Agreements (SLAs) with customers; process redesign to 
streamline production; and refocusing R&D activities to focus on speed.
Introducing SLAs with customers
    The first strategic measure implemented by the NFI was to introduce 
an annual SLA with its two main customers (the police and the 
prosecution service). This is a formal document defining the working 
relationship between the NFI and the customer, and specifying the 
number of investigations the NFI will carry out for that specific 
customer over a period of one year.
    An important advantage of an SLA is that it forces customers to 
prioritize. Some people in the field implicitly believe that 
prioritizing among investigations is unethical, as being somehow 
incompatible with the notion that Justice should be blind. 
Nevertheless, even if justice is blind and all cases are equally 
important, the same cannot be said of forensic investigations if they 
are considered in the specific contexts of the cases in which they 
arise. A forensic investigation that is crucial in case A may be 
unnecessary in case B. Furthermore, the fact remains that the capacity 
of a forensic laboratory is limited, and any work that is assigned 
beyond that level will, under a ``no-prioritization policy'', simply 
increase the backlog and extend delivery times. In practice, it is 
impossible to avoid prioritization: if the customer does not do so 
explicitly, it will be done implicitly and therefore ad hoc. Work will 
be de facto prioritized on the basis of ``first come, first served''. 
From the point of view of the public good and society's needs, this is 
surely a situation that is far from ideal.
    The SLA makes it clear that resources are limited, and that 
intelligent prioritization is required. Prioritization of 
investigations is the responsibility of the customer, as the customer 
is naturally most familiar with the various cases and the relative 
urgency of the forensic investigations being considered. In practice, 
this is performed, when necessary, by liaison officers of the main 
customers. The step from capacity to budgets is made by modern cost 
accounting methods, such as Activity-Based Costing, which allows the 
organization to calculate the costs of individual investigations. In 
the Netherlands, the total ``fee'' for the work specified in the SLA is 
paid by the Dutch Ministry of Security and Justice, which also owns the 
NFI.
    The SLA, which is ``renegotiated'' annually, prevents the 
accumulation of a backlog, and gives the customer an opportunity to 
stipulate requirements regarding important issues such as quality, 
logistics, and communication. This mutual formalization of the 
relationship gives both parties a better understanding of what is 
required, what they can expect and what is attainable. At first there 
was considerable pushback regarding the idea of introducing an SLA. 
However, once the logic was internalized and the advantages became 
apparent, it became an accepted and valuable instrument to improve a 
system that had created a backlog of 18,000 cases, and which had led to 
many instances of friction because of unclear mutual expectations.
    Customers whose investigations are not paid for by the Ministry of 
Security and Justice pay a fee for the products or services they 
require. Furthermore, if the police or the prosecution request more 
investigations than are covered by the SLA, they pay for the additional 
work out of their own funds. The extra revenue that the NFI generates 
in this way is transparently re-invested in additional capacity and 
R&D. In this way, a strong link between supply (capacity) and demand is 
maintained.
Streamlining production through process redesign
    The second strategic measure introduced was a determined effort to 
improve process management at the NFI. As mentioned above, the Lean Six 
Sigma methodology was borrowed from industry and applied to eliminate 
waste of various kinds, including lost hours in the production 
processes. This made it possible to identify the variables that are 
critical to achieving the required speed and quality. Based on insights 
from this methodology, the NFI redesigned its processes, eliminating 
waiting time and economizing wherever possible to promote efficiency 
and speed.
    The first step was to redesign processes to reduce ``dead time''--
i.e., time that a case spends at the NFI but during which it is not 
being processed in any way. Rigorous analysis of every group at the NFI 
showed that the time spent conducting investigations was only a 
fraction of total delivery time. Throughout the remaining period, the 
investigation was simply in a state of suspended animation, waiting for 
the next step in the process to begin.
    At first, there was some pushback to the effort to redesign the 
production processes at the NFI. Some professionals tend to distrust or 
even resent the idea of process management. Motivated by their 
profession and the content of their work, they fear that shortening 
delivery times will have a negative effect on quality. However, as the 
primary focus was on eliminating ``dead time'', no credible argument 
could be made that process redesign would have a negative effect on 
quality. And in fact, no such effect was observed.
    Another concern was that process redesign would turn highly 
qualified employees into ``assets'' on a production line, who would 
carry out a limited set of standard tasks. In some cases, this may be a 
result of process redesign--especially when standardization is the 
solution to a particular problem. The current culture in many 
laboratories of journeymen forensic scientists involves taking cases 
sequentially ``from crime scene all the way to the courtroom''. In many 
cases this model is highly inefficient and unnecessary. Often the 
efficiency and throughput can be increased markedly by introducing a 
division of labor and some type of ``assembly line'' operations. Not 
all processes can be restructured in this way, but many can. Some 
forensic scientists may be concerned that a division of labor will make 
their work less interesting, or that they will not be able to control 
the (quality of the) whole process personally. The claim that quality 
necessarily suffers from this type of process redesign is unjustified. 
Nonetheless, a division of labor does have an impact on the way people 
work and on the content of their work. In some cases, job descriptions 
need to be reconciled with the appropriate level of education and 
qualifications required for the new jobs. Ph.D.'s are not required for 
conducting some of the jobs with highly standardized or repetitive 
tasks. Failure to redesign the processes could result in failure to 
achieve the appropriate efficiencies, which is not a realistic option 
in the long run, but failure to redefine the job descriptions could 
demoralize highly qualified forensic scientists because of a mismatch 
between expectations and requirements.
Refocusing R&D
    The third strategic measure taken by the NFI to combat backlogs and 
long delivery times was to refocus its R&D efforts on finding 
innovative ways of increasing the speed of forensic processes. The NFI 
examined its own activities in R&D and concluded that these activities 
lacked a clear focus. Even though delivery times were the main concern 
of the customers, almost none of the R&D projects in the organization 
were aimed at creating technologies or methods to shorten them. 
Clearly, this had to change.
    Looking at the whole range of R&D activities relating to forensics, 
three main categories could be discerned: basic research, applied 
research and product development. From the NFI's point of view, it was 
considered that basic research activities were best pursued in 
cooperation with universities and other partners, or left to them 
entirely. The NFI has been instrumental in setting up such a pure 
research program in The Netherlands, funded by the national science 
foundation (NWO).\6\ Furthermore, we believe that improvement of the 
scientific underpinning and objectivity of forensic investigations 
would clearly benefit from a larger-scale, international effort. For 
this reason, the NFI has been seeking partners abroad, particularly in 
Europe and the United States.
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    \6\ NWO is the Netherlands Organization for Scientific Research
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    The type of R&D that could most fruitfully be pursued by the NFI 
and other forensic service providers was the development of products 
and services, as this would fit in well with its chosen focus on 
customer needs. To guide innovation in this area, the NFI adopted the 
concepts of ``Co-creation'' and ``Lean Innovation.'' These methods 
stress intensive cooperation and interaction between customer and 
provider in the innovation process. In this way, the R&D process is 
steered towards the innovations with the highest value for the 
customer. An example of a service that the NFI developed in this way 
was ``DNA 6 hours.'' Inspired by the customer's need for speed in the 
delivery of results, this methodology guarantees that the customer 
receives a report on a crime scene DNA sample, including the results of 
a comparison with the DNA database, within 6 hours. In practice, 
however, the turnaround time is generally much shorter, at 
approximately 3.5 hours. Taking this idea further, the NFI has also 
introduced a ``sprint portfolio'': a set of very fast versions of the 
usual services provided by the NFI.
Results
    Implementation of these three strategic measures has resulted in 
the elimination of the 2007 backlog of 18,000 cases (approximately 
70,000 forensic investigations) and a remarkable decline in the average 
delivery time at the NFI. In 2007, average delivery time was 
approximately 140 days. This includes both ``routine'' investigations 
as well as highly complicated customized and interdisciplinary 
investigations. At the end of 2012, this number had fallen to 13.8 
days, and it is still falling. This represents a reduction of the 
delivery time of more than 90 percent. Furthermore, ``customer 
satisfaction'' (which is measured every two years by an independent 
agency) has increased markedly, and is now at the same level as 
customer satisfaction at private companies in other sectors.
3. Defragmentation
    Because of the relatively recent origins of forensic science and 
the institutional structure in which it arose, the field is fragmented. 
It is fragmented in the sense that it consists of dozens of different 
areas of expertise that rarely engage in deep interdisciplinary 
cooperation. The focus tends to be on areas of expertise, and on 
experts, rather than on providing integrated information services to 
customers. Furthermore, the field of forensic science is also 
fragmented because most forensic laboratories only serve the 
geographical jurisdiction of their main customer. In most cases, they 
only have one or two customers (e.g., the local police force or 
prosecutor's office), which is partly caused by the fact that forensic 
labs in many cases are part of the main customer they serve. As a 
result, the field of forensics has developed into a sector comprising a 
large number of relatively small and local laboratories that 
necessarily act as pure production units. As an example, in the United 
States, much as in Europe, we find over 400 publicly funded forensic 
labs employing around 13,000 employees. Forensics still is a rather 
local affair. This is changing however.
No intrinsic borders
    Forensic science and services are not intrinsically bound by 
jurisdictions or even national borders. In principle, therefore, there 
is nothing to prevent consolidation, collaboration, and cross-
jurisdictional or even cross-border traffic of technology and services. 
Today, the fragmented condition of the forensic science sector remains 
largely intact, but as the field continues to grow and innovate, it is 
inevitable that some forensic service providers will develop their own 
specialist capabilities, creating an irresistible stimulus for cross-
jurisdictional traffic in forensic products and services. It would be 
unrealistic to assume that all local forensic laboratories, especially 
the smaller ones, would be able to provide state-of-the-art services 
across the full range of disciplines. Furthermore, they cannot be 
expected to have sufficient critical mass to ensure continuity and 
quality, or sufficient resources to support proprietary R&D programs. 
The reality is that most of them will remain pure production units in a 
limited number of forensic disciplines, containing small and vulnerable 
expert groups depending on just a few key people. Also, budgetary 
constraints, especially in an economic downturn such as we are 
experiencing now, will continue to put pressure on the forensic sector 
to produce more efficiently. Fragmentation costs money, because it 
cannot capture economies of scale and leads to suboptimal allocation 
and exploitation of what is essentially a very scarce resource.
    More generally, the relatively small size of many laboratories, 
combined with the fact that they usually serve only one jurisdiction 
and operate solely within the criminal justice system, constitutes a 
significant and unnecessary impediment to the development of the field 
as a whole. This is true in relation to scientific knowledge and 
technology, and in relation to operational efficiency. For example, 
investments in equipment or R&D that may not make sense on a local 
level--because of insufficient caseload--may be justifiable on a 
regional or even global level. Similarly, such investments may make 
even more sense if the forensic laboratory is allowed to broaden its 
customer base, thus expanding the caseload still further and creating 
critical mass. Inevitably, setting up a modern forensic laboratory is 
an expensive business, due in part to the infrastructure required. Some 
disciplines are more expensive than others, but where, in particular, 
the fixed costs are high, significant economies of scale can be 
achieved as the size of the caseload increases. In other words, the 
fragmentation into many relatively small production units is 
inefficient, leads to vulnerabilities, contributes to the backlog 
problem, and is an obstacle to the kind of research and innovation that 
would propel the field forward.
Capacity problems
    As stated above, forensic science is not a unified field, but 
rather a collection of specialist disciplines. At the NFI, for 
instance, more than 30 separate disciplines exist. Some of them are 
staffed by just a few experts, as the caseload is not large enough to 
justify additional staff. Consider just such a small discipline, 
staffed by three qualified forensic examiners. If one of them falls 
ill, attends a training course or leaves the organization, this will 
have a considerable impact on available capacity. Although such 
fluctuations in themselves pose considerable organizational problems 
and contribute to the growth of backlogs, the trouble they cause is, of 
course, compounded by the inevitable and unpredictable fluctuations in 
the inflow of cases. In addition, suppose the organization wishes to 
spend about 10 percent of its capacity on R&D in this field. In a team 
of three examiners, this amounts to 0.3 full-time equivalents: in other 
words, these examiners, either jointly or individually, can at best 
devote only a small portion of their work time to innovation. However, 
in the real world, the caseload is such that it will tend to drown out 
the R&D, with the result that no significant R&D effort is achieved at 
all. The result is stagnation of the field.
    If the forensic laboratory could service a much larger geographical 
area and a larger number of customers, then the caseload at a certain 
point would become sufficient to support a staff with critical mass. If 
there are 10 or 20 qualified forensic examiners in the discipline in 
question, for instance, one or two of them could be freed up to conduct 
research full-time. Furthermore, a larger staff has much more 
flexibility to deal with setbacks such as illness. In short, the 
current fragmentation of the forensics sector, with its many, 
relatively small, laboratories, is not conducive to R&D, and gives rise 
to problems relating to flexibility and continuity.
    Some might argue that the lack of R&D could be solved by creating a 
centralized system of R&D-oriented institutes, possibly at universities 
or other institutions. These would then perform most of the research. 
The theory is that this research would subsequently diffuse into the 
forensic system. There are reasons why a certain amount of skepticism 
towards this approach is justified. Experience shows that a severe 
disconnect is likely to arise between the central research institutes 
and the hundreds of production units doing all the casework. After all, 
even integrated technology companies find it a struggle to maintain an 
R&D program that accurately and continuously reflects their customers' 
needs. If (independent) research institutes are so far removed from 
actual casework and from customers, it will be very difficult to keep 
them on the right track. The probable outcome would be research that is 
very clever, but not necessarily what customers want or need. Customer 
needs are often surprising, as the NFI (and many companies in the 
private sector) have learned the hard way. In order to be able to 
appreciate customers' needs, it is necessary to remain in close contact 
with them and/or with those who will use the information provided by 
the investigations in question.
    The foregoing suggests that it is forensic institutes themselves 
that are best placed to carry out R&D programs, alone or with partners. 
This, at least, provides some guarantee that results will be of the 
highest value to customers. However, in order for the institutes to be 
able to support significant R&D programs, to guarantee continuity and 
to capitalize on economies of scale, they need to create critical mass. 
This can be achieved by consolidation (fewer and larger institutions), 
by specialization, or by broadening their customer base to cover all 
government agencies that have a forensic need.
4. A growing need for training and education
    As mentioned above, forensic investigations are becoming 
increasingly important and ``mission critical'' to customers. At the 
same time, forensic science and technology are becoming more 
complicated and difficult to understand for the layman. This 
constitutes one of the fundamental challenges of the field. For almost 
everyone, a suspect's confession is much easier to understand than, for 
example, the evidential value of a complex chemical analysis. 
Nevertheless, the latter may provide a much higher evidential value. 
Furthermore, using forensic investigations correctly, in a non-biased 
way, and interpreting results as intended, is not as easy as it may 
seem.
    All this points to a growing need for training and education. This 
applies not only to forensic investigators, but even more so to the 
users of forensic information. This is largely due to a change in the 
whole process of criminal investigation. In a sense, the role forensics 
plays is similar to automation in factories: it ``technologizes'' the 
production process in criminal investigations. In manufacturing, the 
nature of the ``human factor'' has changed. Manual labor has been 
partially replaced by technology (machines) and knowledge workers (who 
design, create, and program the machines). Similarly, traditional 
labor-intensive investigative methods are being replaced or 
complemented by forensic science and technology. But this means that 
all the stakeholders in this process need to be trained to deal with 
this new situation. Police officers, prosecutors, and judges, for 
instance, need to know how to use forensics properly: they need to ask 
the right questions, and they need to interpret forensic results 
correctly.
    Several years ago, in line with the need for more education and 
training, the NFI set up its own Academy with the express purpose of 
providing a wide range of stakeholders with the forensic knowledge and 
skills they need for their work. These stakeholders include forensic 
investigators, judges, police officers, first-responders, policy 
makers, and lawyers. Although each group has different requirements, 
the general aim is to train them to collect traces correctly (and not 
destroy important traces), to use forensic laboratories effectively 
(and ask the right questions), and to interpret the results of forensic 
investigations correctly. The NFI Academy has been a huge success, 
providing approximately 10,000 person-days of training in 2012 for 
interested practitioners from around the world.
5. An integrated model
    Over the past few years, the NFI has implemented (and indeed is 
still implementing) an ``integrated'' organization model based on the 
analysis and principles presented above. This means that the 
organization not only provides forensic services to (domestic and 
foreign) government agencies, but that it also performs its own 
research and development in order to improve its services and create 
innovative new ones. In its R&D effort, the NFI cooperates with many 
companies, universities, and knowledge institutes around the world, 
especially in the Netherlands, Japan, and the United States. The R&D is 
partially financed by the fee received from customers who pay for the 
services of the NFI. The fact that the NFI can and does deliver 
products and services to government agencies in the Netherlands and 
abroad, as well as to intergovernmental organizations, is also part of 
the integrated model.
Forensic products and tools
    The NFI still conducts many standardized ``commodity'' services. 
The organization also takes on a large and growing amount of custom 
work. This type of work often leads to specialized high-end products 
and tools, because examiners need them to do their cases. This may take 
the form of both hardware and software. Subsequently, such products and 
tools can be made available to the forensic community at large, to 
beneficial effect. However, the benefit goes beyond the immediate use 
of the product or tool. The revenues so earned are invested in new R&D 
to enhance current forensic capabilities and investigation techniques. 
If many integrated forensic institutes around the world were to do the 
same, this would create a whole new dynamic in the field. Conversely, 
if innovative products and tools that require large investments in R&D 
were distributed free of charge, this would only mean that funds to 
fuel the innovation engine would become depleted, stopping further 
innovation in its tracks. Laboratories that do not invest in R&D would 
benefit from the investments of others, who would subsequently become 
starved of funds themselves. Clearly, that is not a sustainable model 
for innovation, and it would perpetuate the situation in which most 
forensic laboratories are mere production units.
Concluding remarks
    Forensic science is clearly at an important stage in its 
development. New advances in technology have placed forensics in an 
accelerating cycle of growth, as a wider range of parties than ever 
before comes to realize just how useful forensics can be for their own 
purposes. But this popularity--gratifying as it may be--nonetheless 
brings its own challenges, as laboratories become bogged down in work 
and customers become more demanding. This paper has reviewed some of 
the practical problems that the sector will need to resolve if it is to 
meet the demands of society: understanding what customers need, 
increasing the value of the information we provide to them, and 
generally accelerating our operations. More profoundly, however, we 
will need to undergo a shift in mindset and governance.
    Several years ago, the NFI saw itself faced with these challenges 
and, in response, developed and implemented a number of measures that 
have enabled it to eliminate its backlogs and dramatically improve the 
quality and delivery times of its forensic investigations. In this way, 
it has been able to markedly improve customer satisfaction and has 
shown that its integrated model is a viable way forward. The forensic 
sector has great potential, but it will certainly find itself 
challenged to live up to the high expectations that customers and 
society have of it. It is equally certain that the sector can only 
succeed if it takes up the challenge and makes fundamental changes 
where necessary.
Acknowledgement
    The author would like to thank Mr. Mark Stolorow (NIST, USA), Prof. 
Arian van Asten (NFI) and Mr. Marcel van der Steen (NFI) for their 
valuable contribution.

    The Chairman. Thank you very much, sir.
    Mr. Michael Bromwich?

               STATEMENT OF MICHAEL R. BROMWICH,

           MANAGING PRINCIPAL, THE BROMWICH GROUP LLC

                AND PARTNER, GORDON PROCTER LLP

    Mr. Bromwich. Thank you very much, Chairman Rockefeller, 
Senator Thune, Senator Chiesa. I appreciate the opportunity to 
be here today.
    Forensic science is a pivotal part of the criminal justice 
system on the Federal, state, and local level. It has the 
ability to identify suspects. It plays a significant role in a 
wide range of criminal cases. And as we have seen repeatedly 
over the past 20 years, it has the power to exonerate the 
innocent.
    My background and experience with forensic science over the 
past 30 years has been as a prosecutor, defense lawyer, and 
investigative agency head, and through extensive investigations 
I have conducted of two important forensic labs. For the 
purposes of this brief statement, let me highlight the most 
relevant matters.
    In 1994, I was serving as the Inspector General in the 
Department of Justice when we conducted an investigation of the 
FBI Lab. The investigation reviewed cases handled by three 
sections within the lab involved in analyzing bombing and 
explosives cases, including some of the most significant 
bombing and explosives cases handled in the previous decade. 
These included the World Trade Center bombing case in 1993 and 
the Oklahoma City bombing case in 1995.
    The findings and conclusions of the investigation were 
stunning to forensic scientists in this country and abroad. The 
FBI Lab had long been viewed as the gold standard in forensic 
science and had exercised enormous worldwide influence on 
forensic labs. But our investigation found major flaws with 
many of the most significant cases we reviewed, including the 
World Trade Center and Oklahoma City bombing cases.
    We found that analysts had performed work that lacked 
scientific rigor, reached unsupported conclusions, and in many 
cases were biased in favor of the prosecution. We recommended 
that many of the senior analysts and supervisors be removed 
from the lab, and we made broad institutional recommendations 
focusing on issues that included accreditation, report writing, 
standards development, and training.
    In 2005, I was hired by the City of Houston to conduct an 
independent investigation of that city's police crime lab. For 
several years, the crime lab had been the subject of numerous 
allegations claiming that the work it performed was 
unscientific, inaccurate, and unreliable. We assembled a top-
flight team of forensic scientists from throughout North 
America, and we reviewed more than 3,500 individual cases, 
making it the broadest review of a forensic science lab ever 
performed.
    We found that many of the sections of the lab performed 
capable and reliable work, but we also found profound problems 
with the work the lab had performed in DNA and serology, with 
unacceptably high error rates in both areas. This was 
especially disturbing because DNA and serology analysis are 
conducted in the most serious cases, including homicides and 
sexual assaults. The errors in these cases had tragic human 
costs. They resulted in at least two highly publicized sexual 
assault cases in which innocent men were being sent to prison 
for crimes that they did not commit.
    We found the problems in the HPD crime lab to be the result 
of many contributing factors, including lack of resources and 
support, poor management, insufficient quality control, 
inadequate training, inadequate protocols, lax supervision, and 
an insular culture.
    Now, these two in-depth investigations were really threads 
in the broader fabric of concerns that were emerging in the 
1990s and 2000s about the state of forensic science in this 
country. Forensic science disciplines that were at one time 
unquestioned were subjected to heightened scrutiny. Through the 
work of the Innocence Project and others, we learned of the 
enormous power of DNA analysis to exonerate defendants 
previously convicted of crimes.
    The dark side of that equation was that, at the same time, 
we came to learn that non-DNA forensic analysis and testimony 
had frequently led to convictions based on excessive and 
unsupported claims about the strength and power of their 
conclusions. One study of DNA exonerations has shown that 
flawed forensic evidence contributed to approximately 50 
percent of wrongful convictions overturned by DNA testing.
    Now, the growing disquiet with the state of forensic 
science led to the 2005 congressional mandate to the National 
Academy of Sciences to conduct its study on the current state 
of forensic science, which was published in 2009. That 
carefully crafted report has become the touchstone for 
subsequent discussion of how best to reform the practice of 
forensic science.
    In your letter inviting me to testify, you asked me to 
address the scope of the problems that can arise in crime labs 
and how improved standards, increased training, and 
accreditation might help to solve these problems. I have 
alluded to many of these in my summaries of our FBI and HPD lab 
investigation findings, and I have provided a more detailed 
list in my prepared statement.
    We need to be realistic about the limitations of reform but 
also of its promise. Individual, nonsystemic errors by 
individual examiners can never be eliminated. Lab examiners are 
human, and they will make mistakes.
    But sustained efforts to improve crime labs are possible 
and desirable through broad-based fundamental research into the 
scientific foundations of various disciplines, the creation of 
more uniform standards based on sound science, funding for more 
and better training, and developing meaningful systems of 
accreditation. These steps would raise the quality of the 
forensic science services provided throughout the Nation and 
diminish the number of errors.
    The legislation introduced last session by Chairman 
Rockefeller, which focused on promoting research, requiring 
standards development, and implementing uniform standards, 
would be an enormous step in the right direction.
    Finally, we have come a long way since the days not so very 
long ago when prosecutors, defense lawyers, and judges blindly 
accepted the findings and conclusions of crime lab analysts. 
Over the past 20 years, we have become all too familiar with 
their fallibility and the tragic consequences when their 
conclusions are flawed and their certainty is unjustified.
    We have come to realize the shortcomings in the way 
forensic science is practiced in this country and the need for 
broad institutional reform. The challenge before us is to make 
a serious and sustained effort to address those deficiencies 
and improve the quality of justice provided in our criminal 
justice system. The people of this country deserve nothing 
less.
    Thank you very much for your attention, and I, too, am 
happy to answer questions.
    [The prepared statement of Mr. Bromwich follows:]

  Prepared Statement of Michael R. Bromwich, Managing Principal, The 
          Bromwich Group LLC and Partner, Goodwin Procter LLP
    Mr. Chairman and Members of the Committee,

    I appreciate the opportunity to be here today to provide my 
perspective on issues relating to strengthening forensic science in the 
United States. Forensic science is a pivotal part of the criminal 
justice system on the federal, state, and local level. Forensic science 
has the power to advance criminal investigations by helping to identify 
and exclude suspects, plays a significant role in the adversary system 
through expert reports and trial testimony, and, as we have seen 
repeatedly over the past 20 years, has the power to exonerate the 
innocent.
    Let me share with you my background and experiences with forensic 
science, both as a participant in the criminal justice system over the 
last 30 years as a prosecutor, defense lawyer, and agency head, and 
through extensive investigations I have conducted of two important 
forensic labs.
    From 1983 through 1989, I was a Federal prosecutor in New York and 
Washington, DC. My experience with forensic science and its techniques 
during that period was fairly typical for a prosecutor in the era that 
preceded the use of DNA. I worked with forensic scientists and analysts 
who provided reports and testimony on fingerprints, serology, 
controlled substances, and handwriting comparisons. With the exception 
of handwriting analysis, which was generally understood to be more 
subjective and less scientifically rigorous than the other fields, 
there was no controversy surrounding the forensic science reports that 
were produced or the courtroom testimony the analysts provided. They 
were accepted as true and beyond question.
    Prosecutors happily embraced the boost that forensic science gave 
to their cases and did not question the analysis or the conclusions of 
the forensic examiners. Neither did defense counsel. These forms of 
forensic evidence were routinely admitted into evidence without 
challenge or controversy. In my seven years as a Federal prosecutor, I 
never heard any doubts expressed about the validity of the science 
underlying the reports and testimony used by my colleagues and me, nor 
did I ever see any instance of forensic evidence effectively challenged 
or excluded from evidence. In fact, I once secured convictions in a 
narcotics case after the drugs had been stolen from the prosecutor's 
office. The testimony of the chemist was enough.
    In 1994, I was serving as the Inspector General of the Department 
of Justice (DOJ) when we began an investigation of the FBI Laboratory. 
Initially, the investigation focused on claims made by an FBI Lab 
scientist that one of his fellow examiners had altered analytic 
reports. After some of the initial allegations were substantiated, the 
investigation expanded to include a far broader review of cases handled 
by three sections within the FBI Lab that were involved in analyzing 
bombing and explosives cases. Eventually, the investigation came to 
include some of the most significant bombing and explosives cases 
handled by the FBI Lab in the previous decade, including the first 
World Trade Center bombing case (1993), the Oklahoma City bombing case 
(1995), the Avianca bombing case (1989), and many others. The Office of 
the Inspector General (OIG) report of investigation, published in April 
1997, is available at: http://www.justice.gov/oig/special/9704a/
index.htm.
    The findings and conclusions of the investigation were stunning to 
forensic scientists in this country and abroad, and to officials in 
Federal and local law enforcement. The FBI Lab had long been viewed as 
the gold standard in forensic science, and had exercised enormous 
influence on forensic labs in the United States and around the world. 
Our investigation found major flaws and deficiencies with many of the 
most significant cases we reviewed, including the World Trade Center 
and Oklahoma City bombing cases. We found that many of the most senior 
analysts and supervisors in the FBI Lab had performed work that lacked 
scientific rigor, reached unsupported conclusions, and, in many cases, 
were biased in favor of the prosecution. We recommended that many of 
the senior analysts and supervisors be removed from the Lab because 
they had shown themselves to be unable or unwilling to conduct rigorous 
forensic analysis. We issued a set of broad institutional 
recommendations focusing on accreditation, organizational 
restructuring, report writing, quality assurance, documentation, the 
development of written protocols, and training.
    The FBI reacted immediately to our broad set of 40 recommendations. 
When we returned a year later, we found that the FBI had done a 
responsible job of implementing those recommendations. Unfortunately, 
the same cannot be said of the efforts of a DOJ task force created to 
follow up on a large number of cases called into question by the OIG 
investigation. The operations of the DOJ task force were plagued by 
delays, lack of transparency, and the failure to notify defense lawyers 
representing clients in cases in which problematic forensic work was 
identified. The deficiencies in the work of the DOJ task force were 
highlighted in a series of stories published last year in the 
Washington Post.\1\ In response, the DOJ Inspector General has launched 
an inquiry into the causes of those shortcomings.
---------------------------------------------------------------------------
    \1\ http://www.washingtonpost.com/local/crime/doj-review-of-flawed-
fbi-forensics-processes-lacked-transparency/2012/04/17/
gIQAFegIPT_story.html; http://www.washingtonpost.com/local/crime/
convicted-defendants-left-uninformed-of-forensic-flaws-found-by-
justice-dept/2012/04/16/gIQAWTcgMT_story.html
---------------------------------------------------------------------------
    In 2005, I was hired by the City of Houston to conduct an 
independent investigation of the Houston Police Department (HPD) Crime 
Lab. For several years, starting in 2002, the HPD Crime Lab had been 
the subject of numerous allegations claiming that the work it performed 
was unscientific, inaccurate, and unreliable. Those allegations 
encompassed virtually every section of the Lab, including DNA, 
serology, controlled substances, toxicology, trace evidence, firearms, 
and handwriting. The City attempted in various ways to address the 
problems in the Lab by bringing in consultants and a new Lab director, 
but continued public criticism of the Lab caused the HPD Chief of 
Police, with the blessing of the mayor, to seek an outside, independent 
review. To conduct the investigation, we assembled a top-flight team of 
forensic scientists from throughout North America. The team reviewed 
and analyzed cases in every forensic science discipline in which the 
Lab performed work. By the end of the investigation, we had reviewed 
more than 3,500 individual cases, making it the broadest review of a 
forensic science lab ever performed.
    We found that many sections of the Lab performed capable and 
reliable work, but we also found profound problems with the work the 
Lab had performed in DNA and serology, with unacceptably high error 
rates in both areas of analysis. This was especially disturbing because 
DNA analysis and serology analysis are conducted in the most serious 
cases, including homicides and sexual assaults. We were so alarmed by 
the error rates we found in serology cases that we expanded our review 
to include a larger and broader set of cases than originally 
contemplated, reaching back to the 1980s. The errors in these DNA and 
serology cases were not without tragic human costs; they resulted, in 
at least two highly publicized sexual assault cases, with innocent men 
being sent to prison for crimes that subsequent analysis demonstrated 
that they could not have committed. We found the problems in the HPD 
Crime Lab to be the result of many factors, including lack of resources 
and support, poor management, insufficient quality control, inadequate 
training, inadequate protocols, lax supervision, and an insular culture 
in which Lab management for decades had prevented any meaningful 
external reviews. The reports issued in connection with that 
investigation are available at: www.hpdlabinvestigation.org.
    These two in-depth investigations were threads in the broader 
fabric of concerns that were emerging in the 1990s and 2000s about the 
state of forensic science in this country. Forensic science disciplines 
that were at one time unquestioned came to be subjected to heightened 
scrutiny. Through the work of the Innocence Project and others, we 
learned of the enormous power of DNA analysis to exonerate defendants 
previously convicted of serious crimes. The dark side of that equation 
was that, at the same time, we came to learn that non-DNA forensic 
analysis and testimony had frequently led to convictions based on 
excessive and unsupported claims about the strength and power of their 
findings and conclusions. Indeed, flawed forensic science was in many 
instances revealed to be a key ingredient in securing wrongful 
convictions. One study of DNA exonerations has shown that flawed 
forensic evidence contributed to approximately 50 percent of wrongful 
convictions overturned by DNA testing.\2\
---------------------------------------------------------------------------
    \2\ Brandon Garrett and Peter Neufeld, Virginia Law Review, Vol. 
95, No. 1, March 2009, p. 8.
---------------------------------------------------------------------------
    This growing disquiet with the state of forensic science led to the 
2005 congressional mandate to the National Academy of Sciences (NAS) to 
conduct a study on the current state of forensic science in the United 
States, and ultimately to the 2009 publication of Strengthening 
Forensic Science in the United States: A Path Forward. That carefully 
crafted report has become the touchstone for subsequent discussion of 
how best to reform the practice of forensic science in this country. 
The report summarized its core finding in this way:

        The forensic science system, encompassing both research and 
        practice, has serious problems that can only be addressed by a 
        national commitment to overhaul the current structure that 
        supports the forensic science community in this country. This 
        can only be done with effective leadership at the highest 
        levels of both Federal and state governments, pursuant to 
        national standards, and with a significant infusion of Federal 
        funds.

    The recent activities of this Committee and the Senate Judiciary 
Committee are designed to help fully realize the promise of forensic 
science and to reduce the flaws and shortcomings that currently exist 
in the system. That promise is to focus investigations on legitimate 
suspects, aid in identifying and convicting the guilty, and help to 
exonerate the innocent. But our experience with the criminal justice 
system suggests that this bright promise cannot be achieved without the 
Federal leadership and funding called for by the NAS report.
    In your letter inviting me to testify today, you asked me to 
address the scope of the problems that can arise in crime labs and how 
improved standards, increased training, and accreditation might help to 
solve these problems. Let me do so briefly. In the crime lab 
investigations I have conducted, the problems we discovered included 
the following:

   Individual, non-systemic errors made by individual lab 
        examiners;

   Systemic errors made by groups of lab examiners due to lack 
        of adequate training;

   Failures in supervision;

   Inadequate systems to ensure quality assurance and quality 
        control;

   Development and application of untested and unvalidated 
        forensic procedures that are unique to individual examiners or 
        groups of examiners and have not been peer reviewed;

   Outright fraud by examiners who have falsified analytic 
        results;

   Skewing of analytic results in favor of the prosecution;

   Inadequate efforts to develop a culture of science within 
        crime labs, including through staffing top leadership positions 
        with qualified scientists;

   Failures of leadership at intermediate and top management 
        levels in crime labs; and

   Absence of accreditation and other external reviews.

    This is an extensive catalog of problems and issues, not all of 
which are susceptible to improvement in programs designed to address 
standards, training, and accreditation.
    We need to be realistic about the limitations of reform but also of 
its potential to improve the quality of forensic science services 
delivered in this country. Individual, non-systemic errors by 
individual examiners can never be eliminated--lab examiners are human 
and they will make mistakes. But sustained efforts to improve crime 
labs are possible and desirable through 1) broad-based, fundamental 
research into the scientific foundations of various forensic 
disciplines; 2) the creation of more uniform standards based on sound 
science; 3) funding more and better training; and 4) developing 
meaningful systems of accreditation. These steps would undoubtedly 
raise the quality of the forensic science services provided throughout 
the Nation and diminish the number of errors.
    In my investigations of the two major crime labs, my teams found 
that deficiencies in standards, training, and the absence of 
accreditation played major roles in the problems we examined.

   In the investigation of the FBI Lab, the team found that:

     ``Meaningful peer review and reliance on validated 
            procedures would have prevented'' many of the flawed 
            conclusions reached by FBI Lab analysts;

     There was no coordinated, overall training program 
            within the Lab; and

     Until 1994, there had been no effort by the FBI to 
            seek accreditation or other types of external reviews.

   In the investigation of the HPD Crime Lab, the team found 
        that

     Standard Operating Procedures consisted of materials 
            cobbled together over time without adequate reevaluation 
            and reorganization, and virtually no technical reviews of 
            analysts' work;

     The majority of errors found in the Lab's work were 
            the product of poor training and lack of competent 
            technical guidance and supervision rather than intentional 
            misconduct; and

     Lab management failed to make meaningful efforts to 
            seek accreditation from recognized outside bodies.

    If these two labs were isolated instances of the problems created 
by inadequate standards, poor training, and lack of accreditation, 
there might not be a need for a broad, national solution. But the NAS 
report concluded, after a lengthy and detailed review, that these 
problems are pervasive. I agree.
    The legislation introduced last session by Chairman Rockefeller, 
which focused on promoting research, requiring standards development, 
and implementing uniform standards, would be an enormous step in the 
right direction. In view of the central importance that the various 
forensic sciences play in our criminal justice system, the lack of 
funding for basic and applied research in forensic science cannot be 
defended. The bill called for the development of a national forensic 
science research strategy developed by the National Science Foundation, 
a forensic science grant program, and the creation of forensic science 
research centers. In addition, it called for the National Institute of 
Standards and Technology (NIST) to develop forensic science standards, 
in consultation with standards development organizations and other 
stakeholders, including current participants in the forensic science 
system. Finally, it called for the formation of a Forensic Science 
Advisory Committee co-chaired by the Director of NIST and the Attorney 
General.
    The Justice Department has already taken one step in the right 
direction. As you know, in February 2013, the Attorney General 
published a Federal Register Notice announcing the formation of the 
National Commission on Forensic Science. The Commission's 
responsibilities will include recommending strategies for enhancing 
quality assurance in forensic science units. Its duties will include:

   Recommending priorities for standards development;

   Reviewing forensic science subject matter guidance developed 
        by subject matter experts;

   Developing proposed guidance relating to the use of forensic 
        science in the criminal justice system;

   Developing policy recommendations, including:

     A uniform code of professional responsibility; and

     Minimum requirements for training, accreditation and/
            or certification; and

   Identifying the current and future requirements to 
        strengthen forensic science and meet growing demand.

    The membership of the National Commission has not yet been 
determined. Whether it is capable of realizing the ambitions of the 
Notice announcing its formation remains to be seen, but DOJ should be 
applauded for taking the first major institutional step in the 
direction of providing high-level Federal attention to some of the most 
important issues implicating the delivery of forensic science services.
    The formation of the National Commission is an important step, but 
much more needs to be done. It does not eliminate the need for 
achieving the other goals contained in the legislation proposed last 
year. The imperatives of basic and applied research remain 
undiminished, as does the need for focused efforts on developing and 
refining standards for forensic science. As the NAS report concluded, 
``although congressional action will not remedy all of the deficiencies 
in forensic science methods and practices, truly meaningful advances 
will not come without significant concomitant leadership from the 
Federal Government.''
    We have come a long way since the days--not so very long ago--when 
prosecutors, defense lawyers, and judges blindly accepted the findings 
and conclusions of crime lab analysts. Over the past 20 years, we have 
become all too familiar with the fallibility of crime lab analysts and 
the tragic consequences when their conclusions are flawed and their 
certainty is unjustified. We have come to realize the shortcomings in 
the way forensic science is practiced in this country and the need for 
broad institutional reform. The challenge before us is to make a 
serious and sustained effort to address the deficiencies that have been 
identified and to improve the quality of justice provided throughout 
this country. The people of this country deserve nothing less.
    Thank you for your attention. I am happy to answer any questions 
you may have.

    The Chairman. Thank you, sir.
    Dr. Gregory Schmunk, National Association of Medical 
Examiners, Chief Medical Examiner.
    Please.

       STATEMENT OF GREGORY A. SCHMUNK, M.D., PRESIDENT,

           NATIONAL ASSOCIATION OF MEDICAL EXAMINERS

  AND CHIEF MEDICAL EXAMINER, POLK COUNTY MEDICAL EXAMINER'S 
                             OFFICE

    Dr. Schmunk. Chairman Rockefeller, Ranking Member Thune, 
Senator Chiesa, thank you very much for giving me the 
opportunity to speak today.
    I am a board-certified forensic pathologist. I am also a 
registered diplomat with the American Board of Medicolegal 
Death Investigators. And I am representing the National 
Association of Medical Examiners, which is a professional 
society representing over 1,100 forensic pathologists, medical 
examiners, medico-legal death investigators, and coroners in 
the U.S.
    Our organization has long been supportive of efforts to 
draft legislation for the death investigation community. In 
fact, as members of the Consortium of Forensic Science 
Organizations, we have long asked for legislation to be written 
creating a Federal structure that will provide guidance and 
leadership for our community.
    I want to emphasize that my remarks today, however, will 
primarily focus on forensic pathology and death investigation 
and not on the crime labs.
    NAME believes that it is critical to have national 
uniformity in death investigation policies, to ensure proper 
training and recruitment of forensic pathologists, to improve 
communication between medico-legal jurisdictions, and to create 
a mechanism for the proper distribution of death investigation 
data.
    The report in 2009 contained many recommendations for 
improving the quality of forensic services, including medico-
legal death investigation, in the United States. NAME has 
endorsed those recommendations of the council. We believe that 
there needs to be a formal and Federal entity which oversees 
death investigation. We believe that by having this entity we 
could address most of our major concerns and specifically 
ensure the issue of continuity and quality.
    NAME does believe that the accreditation of offices and the 
certification of medical examiners, coroners, and death 
investigators should be mandatory. NAME has had professional 
practice standards for autopsy performance since 2005. Forensic 
pathologists have been board-certified by the American Board of 
Pathology since 1964. And the American Board of Medicolegal 
Death Investigations has certified medical death investigators 
since 2005. But many offices throughout this country are 
staffed by noncertified practitioners.
    NAME has also had a professional system of medico-legal 
office accreditation in place since 1974. But, unfortunately, 
due to the lack of any Federal mandate for accreditation, only 
70 out of 465 medico-legal death investigation offices are 
currently accredited in the United States, approximately one-
third of the population.
    So the standards exist, but we do not have the leadership 
and carrot-and-stick approach to enforce them within the 
medical examiner community. Since forensic pathologists receive 
very little Federal funding, it is difficult to enforce any 
such standards on the Federal level. We do receive Paul 
Coverdell Forensic Science Act funding, but that was not funded 
by the administration this year. And since its inception in 
2000, Coverdell has been funded only five times.
    Increased Federal funding of the forensic pathology 
programs could represent the carrot to encourage states to 
adopt uniform standards. Existing standards should not be 
phased out but should be a starting point and should grow with 
the science.
    NAME has attempted to garner interest in drafting a new 
national model medical examiner legislation without success. 
The last law was in 1954, and it is obsolete. There are various 
death investigation systems throughout the country, including 
medical examiner, sheriff-coroner in California, district 
attorney coroner in Nebraska, and elected coroner.
    A constituent from one of your states may die in his 
jurisdiction where the investigator is not trained in death 
investigation, operates under budget shortages, and uses no 
required guidelines. The office may not take jurisdiction of 
the case, may not request an autopsy, or may misinterpret the 
medical findings of the autopsy.
    NAME strongly also feels that incentive funds should be 
provided to states and jurisdictions to ensure that death 
investigation systems in the country are all of uniform 
excellence. This could be done by providing support for 
accreditation and certification or by encouraging 
regionalizations.
    The variable death investigation was an expose in 
``Frontline,'' NPR, and ProPublica in 2011.
    But another problem we have is not enough forensic 
pathologists. There are an estimated 500 board-certified 
forensic pathologists in the United States and----
    The Chairman. Excuse me, sir. Not enough what?
    Dr. Schmunk. Forensic pathologists.
    The Chairman. OK.
    Dr. Schmunk. Approximately 500 currently practice in the 
United States. We need approximately 1,000, according to 
estimates. This is most pronounced in rural areas.
    Only 30 to 40 forensic pathologists are graduated each 
year. As many of the programs that train forensic pathologists 
are not associated with medical schools where there is graduate 
funding for education, the funding for training is often from 
local tax dollars.
    Until we achieve these points, we will not have systems 
that are run professionally in an accredited office with board-
certified forensic pathologists.
    A matter of great importance is communication among the 
states. There was a program, the Medical Examiner and Coroner 
Information Sharing Program, in the CDC in 1986, but that was 
funded out in 2004. We believe that this office should be 
recreated.
    We also support the concept of basic and applied research 
in forensic science and forensic pathology in particular. 
Evidence-based medicine is a big thing for us, and that will 
improve the quality of forensic death investigation and 
ensuring the confidence in the outcomes.
    I would like to thank you for the opportunity of speaking 
to you today, and I welcome any questions.
    [The prepared statement of Dr. Schmunk follows:]

  Prepared Statement of Gregory A. Schmunk, M.D., President, National 
   Association of Medical Examiners and Chief Medical Examiner, Polk 
                    County Medical Examiner's Office
    Mr. Chairman, Ranking Member Thune, and Members of the Committee:

    Thank you for giving me the opportunity to testify before you today 
regarding science and standards in forensics and specifically how those 
issues are reflected in the Medical Examiner community.
    My name is Gregory Schmunk and I am a physician certified by the 
American Board of Pathology in Anatomic and Forensic Pathology and a 
Registered Diplomat with the American Board of Medicolegal Death 
Investigators (ABMDI). I am Chief Medical Examiner for Polk County, 
Iowa in the City of Des Moines. I am here today representing the 
National Association of Medical Examiners (NAME) as their President. 
NAME is the professional society representing over 1,100 Forensic 
Pathologists, Medical Examiners, Medicolegal Death Investigators, and 
Coroners in the United States.
    My organization has long been supportive of the efforts to draft 
legislation for the Death Investigation community in both your 
Committee and the Judiciary Committee. In fact, as members of the 
Consortium of Forensic Science Organizations we have long asked for 
legislation to be written creating a Federal structure that will 
provide guidance and leadership for our community. We believe that it 
is critical to have national uniformity in death investigation 
policies, to ensure proper training and recruitment of trained 
pathologists to ensure the quality investigations, to improve the 
frequent lack of communication between medico-legal jurisdictions, and 
to create a mechanism for the proper distribution of death 
investigation data not only in the forensic community but also the 
public health, public safety, and homeland security communities.
    In 2009, the National Research Council (NRC) published a report, 
Strengthening Forensic Science in the United States: A Path Forward.\1\ 
This report contained many recommendations for improving the quality of 
forensic services including medico-legal death investigation in the 
United States. We believe many of those recommendations, if 
implemented, could resolve many of the problems within the Medical 
Examiner community. In July of 2009, NAME passed a resolution \2\ 
strongly endorsing the recommendations of the Council and specifically 
endorsed the establishment of a National Institute of Forensic Sciences 
to promote the development of forensic science into a mature field of 
multidisciplinary research and practice based on scientific principles.
---------------------------------------------------------------------------
    \1\ Strengthening Forensic Science in the United States: A Path 
Forward accessed 6/23/2013 at http://www.nap.edu/
catalog.php?record_id=12589
    \2\ National Association of Medical Examiners Executive Committee 
and Board of Directors Resolution on National Research Council (NRC) of 
the National Academies report ``Strengthening Forensic Science in the 
United States: A Path Forward.'' July 2009
---------------------------------------------------------------------------
    NAME has long believed that there needs to a formal and Federal 
entity which overseas forensic science and death investigation. We 
believe that by having this entity exist we could address most of our 
major concerns and specifically the continuity of quality. However, it 
is important to recognize that the entity must take into consideration 
the fact that a complete death investigation determines the cause of 
death and can thus assist in a criminal investigation.
    NAME specifically endorsed the NRC recommendation that 
accreditation and individual certification of forensic science 
professionals, specifically medical examiners, should be mandatory. 
NAME has had professional practice standards for autopsy performance 
since 2005.\3\ These standards are under constant review and revision. 
NAME has also had a professional system of medico-legal office 
accreditation in place since 1974 \4\ and is currently working towards 
ISO certification of our system. Unfortunately, due to the lack of any 
Federal or state mandates for accreditation, only 70 out of over 465 
\5\ offices performing forensic autopsies are currently accredited in 
the United States. This is up from 40 offices in 2004. NAME accredited 
offices serve a total of just over 102 million persons or around \1/3\ 
of the population. Forensic Pathologists have been individually 
certified by the American Board of Pathology \6\ since 1964. The 
American Board of Medicolegal Death Investigators (ABMDI) \7\ has 
certified Medicolegal Death Investigators since 2005. Unfortunately, 
additional certification bodies have risen with less rigorous 
certification standards.\8\
---------------------------------------------------------------------------
    \3\ NAME Autopsy Performance Standards 2013 accessed 6/23/2013 at 
https://netforum.avectra
.com/eweb/DynamicPage.aspx?Site=NAME&WebCode=PubIA
    \4\ NAME Accreditation Checklist 2009-2014 accessed 6/23/2013 at 
https://netforum.avectra
.com/eweb/DynamicPage.aspx?Site=NAME&WebCode=PubIA
    \5\ National Association of Medical Examiners, Preliminary Report 
on America's Medicolegal Offices (180 day report to the Senate 
Appropriations Committee; findings presented at the National Institute 
of Justice Summit on Forensic Sciences Services, May 2004) accessed 6/
23/2013 at http://www.nij.gov/nij/pubs-sum/213420.htm
    \6\ http://www.abpath.org/
    \7\ http://www.abmdi.org/
    \8\ ``No Forensic Background? No Problem'' accessed 6/23/2013 at 
http://www.propublica.org/article/no-forensic-background-no-problem
---------------------------------------------------------------------------
    This clearly points to the fact that the standards exist but we 
lack the leadership and carrot/stick to enforce them within the medical 
examiner community. Since forensic pathologists receive very little 
Federal funding so it is difficult to enforce any such standards. In 
fact, the only funding we receive is that under the Paul Coverdell 
Forensic Science Act which was not funded by the Administration this 
year. Since its inception in 2000 Coverdell has been funded in the 
Federal budget less than five times. Increased Federal funding of 
forensic pathology programs could represent the ``carrot'' to encourage 
states to adopt uniform standards.
    Therefore, no current Federal or uniform state standards exist for 
death investigation other than the voluntary NAME standards previously 
mentioned and the death investigation standards issued by the National 
Institutes of Justice in 1999.\9\ We think it is important to point out 
here that we do not believe that these standards should be thrown out. 
Rather, we believe they are a starting point and should grow with the 
science. But as noted there is very little Federal funding that goes to 
our community that could enforce standards. To that end it is critical 
that grants be created and funded based on the needs of the forensic 
community. There needs to be Federal guidance and leadership in 
mandating standards.
---------------------------------------------------------------------------
    \9\ ``Death Investigation: A Guide for the Scene Investigator--
Technical Update'', National Institutes of Justice 2011, accessed 6/23/
2013 at http://www.nij.gov/pubs-sum/234457.htm
---------------------------------------------------------------------------
    NAME has attempted to garner interest in drafting new national 
model medical examiner legislation without success. The last model 
legislation was issued in 1954 and is obsolete. Various death 
investigation systems exist around the country such as Medical 
Examiner, Sheriff-Coroner (California), District Attorney-Coroner 
(Nebraska), and elected Coroner. Thus a constituent from one of your 
states may be in a jurisdiction where the coroner is not trained in 
death investigation, operates under a budget shortage, and uses no 
required guidelines. They may not take jurisdiction of a case, not 
request an autopsy or misinterpret the medical findings of the autopsy. 
The 65 year old crash victim may not have visible injuries and be 
certified as a natural death or the decedent in the motel room may have 
a detectable and heritable cardiac condition which could have been 
found at autopsy, giving the surviving children opportunity to assess 
their own risks for a similar condition. Recently, an under-funded 
system in North Carolina missed rapid diagnosis of two carbon monoxide 
deaths in a motel room, resulting in a third death of a child.\10\ The 
variability of death investigation and the effects on your constituents 
was the subject of an extensive expose by NPR, Frontline, and 
ProPublica in 2011.\11\
---------------------------------------------------------------------------
    \10\ ``Failures in state medical examiner system were exposed, not 
fixed'' accessed 6/23/2013 at http://www.newsobserver.com/2013/06/22/
2982968/failures-in-state-medical-examiner.html
    \11\ ``Medical Examiners In America: A Dysfunctional System'' 
accessed 6/23/2013 at http://www.huffingtonpost.com/2011/02/02/the-
real-csi-how-americas_n_816842.html and ``Post Mortem: Death 
Investigation in America'' accessed 6/23/2013 at http://
www.propublica.org/series/post-mortem
---------------------------------------------------------------------------
    But we must also make sure that we have enough pathologists in the 
country to perform the job. A recent report from the Justice Department 
\12\ addressed workforce shortages and blames the shortage of forensic 
pathologists on limited numbers of training programs and low pay in 
relation to other medical subspecialties. An estimated 500 board 
certified forensic pathologists are currently in practice; it is 
estimated that at least 1,000 are needed to meet even the minimal needs 
of the country. The lack of board certified forensic pathologists is 
more pronounced in rural areas. An alarming trend is the lack of 
medical students pursuing a career in forensic pathology. While there 
are 131 medical schools in the U.S. only 37 forensic pathology training 
programs exist. Of the 77 approved training positions in 2012 only 52 
were funded and only 42 were actually filled.\13\ Of the 30-40 forensic 
pathologists trained each year some choose not to practice forensics 
and only two-thirds choose to practice full time. The supply is thus 
barely able to keep up with the attrition in the field due to death, 
retirement and decisions to move into a better compensated and less 
stressful branch of pathology. As many of these programs are not 
associated with medical schools (where funding for graduate medical 
education is sometimes available), funding for forensic pathology 
training often comes from local tax dollars, if at all.
---------------------------------------------------------------------------
    \12\ ``PRC#5: Increasing the Supply of Forensic Pathologists in the 
United States: A Report and Recommendations'' accessed 6/23/2013 at 
http://swgmdi.org/index.php?option=com_content
&view=article&id=90&Itemid=103
    \13\ Report of Forensic Pathology Fellows in the United States 
2011-12 Academic Year Prepared by Randy Hanzlick, MD, Chair, NAME ad 
hoc Data Committee
---------------------------------------------------------------------------
    NAME is strongly in agreement with the NRC recommendation that 
incentive funds should be provided to states and jurisdictions with the 
goal of ensuring that all death investigation systems in the country 
are of uniform excellence. Until this is achieved we will continue to 
see some parts of our country which have systems which are not run 
professionally, in an accredited Medical Examiner system, with all 
forensic autopsies performed or directly supervised by board certified 
forensic pathologists. We will continue to have a shortage of forensic 
pathologists and many forensic autopsies will be performed each day by 
individuals who are not trained in the profession, sometimes even by 
non-pathologists. The shortage of forensic pathologists has even led to 
physician extenders, such as autopsy assistants, performing medico-
legal autopsies in some jurisdictions \14\ and even testifying in 
homicide trials.\15\ In fact, due to the lack of standards, death 
investigations are commonly performed in the country by individuals 
with no specific training (including either persons with no medical 
training or paramedics, nurses and EMTs).
---------------------------------------------------------------------------
    \14\ ``Was a Bachelor of Science performing unsupervised forensic 
autopsies in Missouri?'' accessed 6/23/2013 at http://
pathologyblawg.com/?s=parcells
    \15\ ``Loughridge murder trial begins'' accessed 6/23/2013 at 
http://www.waynesvilledaily
guide.com/article/20120911/NEWS/120919648#axzz2X4z7dIpN
---------------------------------------------------------------------------
    Another matter of great importance to our community is that of 
communication and data sharing among States. Surprisingly this is 
another victim of the lack of leadership from the Federal Government in 
forensic science and medico-legal death investigation. In 1986, he 
Medical Examiner/Coroner Information Sharing Program (MECISP) was 
established by the Centers for Disease Control and Prevention (CDC) 
because of the lack of uniformity in national death investigation 
policies, the frequent lack of communication between medico-legal 
jurisdictions, and the need for more wide-spread distribution of death 
investigation data. The primary goals of the MECISP were:

   To improve the quality of death investigations in the United 
        States and to promote the use of more standardized policies for 
        when and how to conduct these investigations.

   To facilitate communication among death investigators, the 
        public health community, Federal agencies, and other interested 
        groups.

   To improve the quality, completeness, management, and 
        dissemination of information on investigated deaths.

   To promote the sharing and use of medical examiner and 
        coroner (ME/C) death investigation data.

    Unfortunately, due to changes in administrative policy in 2004 this 
office ceased to exist and with it went our ability to communicate and 
share data across borders. We believe this office needs to be 
recreated.
    NAME endorses the position of the NRC report that support for basic 
and applied research in forensic science and forensic pathology in 
particular is needed. The application of evidence based medicine is 
essential to improving the quality of forensic death investigation and 
ensuring confidence in the outcomes. In addition, the provision of 
grants to state and county systems to improve the overall quality of 
forensic pathology services would serve to raise the bar for death 
investigation across the nation, allowing antiquated and inadequate 
systems to be replaced by modern medical examiner systems using 
certified practitioners in accredited offices. This could be 
accomplished, for example, by providing support for accreditation and 
certification or by encouraging regionalization in order to conserve 
scarce resources.
    A major focus of the Federal Government is currently in health 
care. The Affordable Care Act, or any subsequent modifications to 
improve health care in the country, does have an ultimate focus on 
quality and accountability. Although possibly not directly within the 
scope of this committee, I would like to note that the national autopsy 
rate is miserably low at about 8.5 percent of deaths. The gold standard 
for healthcare accountability is the autopsy. Unfortunately when the 
Joint Commission on Accreditation of Healthcare Organizations dropped 
its requirement for a minimum hospital autopsy rate of 20 percent in 
the mid-1970s, hospitals across the country stopped doing autopsies, 
which are uncompensated by Medicare or any insurance program and are 
thus a drain on the bottom line. Medical Examiners and Coroners around 
the country have become the de facto autopsy service for the country. 
But with manpower issues and funding deficiencies, many autopsies which 
could provide essential information are left undone. Many studies have 
shown that the autopsy provides quality control to the medical 
community, in addition to the contribution to public health. As an 
example, trauma systems around the country regularly audit their 
provision of care by means of peer review. When a death has resulted 
from trauma, the autopsy plays a vital role in detecting injuries which 
may have been missed. This helps to allow trauma systems to evaluate 
whether a death may have been preventable. An autopsy may not be 
performed if sufficient medical information is available from 
hospitalization, even though the death lies within medical examiner 
jurisdiction. Thus, even though the legal obligation of the medical 
examiner system is fulfilled, valuable additional information of value 
to the medical and legal communities may be lost, often for simply 
fiscal reasons.
    In conclusion, I would like to thank you for this opportunity to 
address the Committee today. I also thank you for what you have done 
thus far and we look forward to the continued discussion with you and 
your staff in order to achieve the much needed Federal leadership that 
we require in the field of forensics.
                               Resolution
               National Association of Medical Examiners
                          Executive Committee
                              July 2, 2009
Be it resolved:
    The National Association of Medical Examiners (NAME) strongly 
endorses all of the recommendations of the National Research Council 
(NRC) of the National Academies encompassed in the report 
``Strengthening Forensic Science in the United States: A Path 
Forward.''
    The NAME Executive Committee has the following specific comments on 
the recommendations:
Recommendation #1
    The first and most important NAS recommendation is that a new and 
independent National Institute of Forensic Sciences (NIFS) be 
established to promote the development of forensic science into a 
mature field of multidisciplinary research and practice founded on the 
systematic collection and analysis of data. NAME strongly supports this 
recommendation and sees it as the foundation for the remainder of the 
NRC recommendations. NAME also recognizes that there might be 
impediments to establishing a new institute at this time. If NIFS is 
unattainable at present, NAME believes that the duties of this agency 
should be placed as a bridging step into a new Office of Forensic 
Services (OFS) within an existing agency fulfilling the spirit of the 
NRC recommendations.
    The report outlines that one of the functions of NIFS is to 
establish and enforce best practices for forensic science 
professionals. In the arena of medico-legal death investigation, NAME 
has established forensic autopsy performance standards that can be used 
for this purpose.
    NAME believes that an essential function of NIFS would be to 
conduct periodic forensic science needs assessments at the federal, 
state, regional, and local levels in order to ensure optimal provision 
of resources to service providers. Such assessments should also 
consider research needs. The assessment results should be presented in 
a report.
Recommendation #4
    NAME supports the NRC recommendation that all public forensic 
science laboratories including medical examiner and coroner offices 
should be independent from or administratively autonomous within law 
enforcement agencies or prosecutor offices. Provisions should be made 
to assure the technical and professional autonomy of forensic service 
providers at all levels. The goal is to have unbiased professional 
testing and reporting and the absence of real and perceived conflicts 
of interest. We agree, that to achieve this end will require incentive 
funds as indicated in the report.
Recommendation #5
    NAME endorses the recommendation that research programs on human 
observer bias and sources of human error in forensic examinations 
including studies to determine contextual bias in forensic practice 
should be encouraged. However, NAME urges caution in the arena of 
contextual information and forensic pathology. Medical examiners are 
physicians who operate in the medical paradigm of using a clinical 
history and information about the circumstances surrounding a death to 
generate hypotheses about potential causative diseases and injuries. 
The autopsy and laboratory examination allows a forensic pathologist to 
confirm or refute these hypotheses and reach medical conclusions. 
Autopsy is the practice of medicine. The history and circumstances 
provide the context for the autopsy and laboratory findings. In 
addition to determining cause of death, medical examiners are directed 
to determine the manner of death, which is largely based on the 
circumstances surrounding death.
Recommendation #7
    NAME endorses the recommendation that laboratory accreditation and 
individual certification of forensic science professionals should be 
mandatory and all forensic science professionals should have access to 
a certification process. In the arena of medico-legal death 
investigation NAME believes that all death investigators should at 
least be certified by the American Board of Medicolegal Death 
Investigators at the registry (basic) level. All pathologists 
performing medico-legal autopsies should be certified by the American 
Board of Pathology in forensic pathology. All medico-legal death 
investigation offices and agencies should be accredited using 
professional consensus practice standards such as those developed by 
NAME. To achieve such ideals will require funding to improve the 
organization and operations of many medico-legal death investigation 
offices. Training programs and certifying and accrediting bodies will 
likely also need funding to process increasing numbers of applicants.
Recommendation #11
    NAME fully supports the recommendation ideal that incentive funds 
should be provided to states and jurisdictions with the goal of 
replacing coroner systems with medical examiner systems. These funds 
should be used to build facilities, purchase necessary equipment, 
improve administration, and ensure education, training and staffing of 
offices. To foster this transition, NAME supports the recommendation 
that NIFS should work with the National Conference of Commissioners on 
Uniform State Laws, the American Law Institute and NAME to draft 
legislation for a modern model death investigation code. NAME also 
supports the recommendation that all medico-legal autopsies should be 
performed or directly supervised by a board certified (American Board 
of Pathology) forensic pathologist and that this standard should be 
phased in over a defined period of time. As a more immediate step, NAME 
believes it essential that all medico-legal death investigative systems 
incorporate the leadership of a board certified forensic pathologist. 
Efforts to achieve more uniformity in medico-legal death investigation 
can be hindered by the severe lack of resources (financial, personnel, 
equipment, and training) on a national level. Each of these resources 
should be addressed in order to improve our national medico-legal death 
investigation infrastructure on a jurisdictional or state level.
    The report also recommends that NIFS and the National Institutes of 
Health (NIH) promote scholarly, competitive peer-reviewed research and 
technical development in forensic medicine and develop a strategy to 
improve forensic pathology research. This recommendation includes the 
provision of research funding and the development of a study section to 
establish research goals and evaluate research proposals. This goal is 
reinforced in recommendations #1 and 3. NAME enthusiastically supports 
these recommendations. Forensic pathology supports both public health 
and public safety but this combined role has often remained 
unrecognized. Historically, minimal research funds have been provided 
for forensic pathology research by the Centers for Disease Control and 
Prevention and the National Institute of Justice.
    NAME also supports the recommendation that NIFS/NIH in conjunction 
with NAME and the American Board of Medicolegal Death Investigators 
establish a Scientific Working Group (SWG) for forensic pathology and 
medico-legal death investigation. NAME agrees that this committee 
should develop and promote standards for best practices, 
administration, staffing, education, training, and continuing education 
for competent death scene investigation and postmortem examinations. 
NAME believes that this committee should be led by and have strong 
representation from board certified forensic pathologists.
    As also articulated in recommendation #7, NAME supports the concept 
that all medical examiner offices should be accredited pursuant to NIFS 
endorsed standards and believes that professional consensus 
accreditation standards such as those developed by NAME should become 
the NIFS standard. Restricting Federal funding to offices that are 
accredited or making measurable and significant progress towards 
accreditation is appropriate.
    As outlined in the report, recruitment of qualified practitioners 
into the forensic pathology should be enhanced. NAME supports the 
recommendation that funding in the form of medical student loan 
forgiveness and/or fellowship support should be made available to 
pathology residents who choose forensic pathology as their specialty. 
Increasing the numbers of forensic pathologists will facilitate the 
transition from coroner to medical examiner systems.
       Report of Forensic Pathology Fellows in the United States
                         2011-12 Academic Year

   Prepared by Randy Hanzlick, MD, Chair, NAME ad hoc Data Committee

    A few years back, here were about 40 ACGME-accredited forensic 
pathology training programs in the United States. In recent years, the 
number has been 37. IN the past year or so, two of those programs have 
become inactive (Newark NJ and Oklahoma City). Thus, there are 
technically 35 active forensic pathology fellowship training programs. 
Locations, number of ACGME-approved positions, number of funded 
positions, and number of filled positions is shown below.

------------------------------------------------------------------------
                                    Number of    Number of
      Name of the Sponsoring         approved      funded       Filled
           Institution              positions    positions    positions
------------------------------------------------------------------------
Allegheny County                             2            2            1
------------------------------------------------------------------------
Armed Forces Medical Examiner                4            0            0
------------------------------------------------------------------------
Bexar County Medical Examiner's              2            1            1
 Office
------------------------------------------------------------------------
Broward County Medical Examiner's            2            1            1
 Office
------------------------------------------------------------------------
Cook County Office of the Medical            2            1            1
 Examiner
------------------------------------------------------------------------
Cuyahoga County Medical                      3            1            1
 Examiner's Office
------------------------------------------------------------------------
Emory University School of                   2            1            1
 Medicine
------------------------------------------------------------------------
Harris County                                2            2            1
------------------------------------------------------------------------
Hennepin County Medical Examiner             1            1            1
------------------------------------------------------------------------
Indiana University                           1            1            1
------------------------------------------------------------------------
Jackson County Medical Examiner's            1            1            0
 Office
------------------------------------------------------------------------
Los Angeles County Coroner                   6            2            1
------------------------------------------------------------------------
Massachusetts                                4            2            0
------------------------------------------------------------------------
Medical College of Wisconsin/                2            1            1
 Milwaukee County MEO
------------------------------------------------------------------------
Medical University of South                  1            1            1
 Carolina
------------------------------------------------------------------------
Miami-Dade County Medical                    4            4            4
 Examiner Department
------------------------------------------------------------------------
Montgomery County Coroner's                  1            0            0
 Office (Ohio)
------------------------------------------------------------------------
New York City Office of Chief                4            4            4
 Medical Examiners
------------------------------------------------------------------------
Office of the Chief Medical                  4            3            3
 Examiner's--State of Maryland
------------------------------------------------------------------------
Office of the Medical Examiner               2            2            0
 Metro Nashville/Davidson County
------------------------------------------------------------------------
Puerto Rico                                  0            0            0
------------------------------------------------------------------------
Saint Louis University                       1            1            1
------------------------------------------------------------------------
San Diego County Medical Examiner            2            1            1
------------------------------------------------------------------------
Seattle-King County                          2            1            0
------------------------------------------------------------------------
Southwestern Institute of                    3            2            2
 Forensic Sciences
------------------------------------------------------------------------
Tarrant County Medical Examiner's            1            1            1
 District
------------------------------------------------------------------------
UNC Hospitals                                2            1            2
------------------------------------------------------------------------
University of Alabama at                     1            1            0
 Birmingham
------------------------------------------------------------------------
University of Colorado Denver                1            1            1
------------------------------------------------------------------------
University of Louisville                     1            1            1
------------------------------------------------------------------------
University of New Mexico                     4            4            4
------------------------------------------------------------------------
University of South Florida                  2            1            1
------------------------------------------------------------------------
VCU-Richmond                                 4            4            3
------------------------------------------------------------------------
Wake Forest University School of             1            1            1
 Medicine
------------------------------------------------------------------------
Wayne County Medical Examiner                2            1            1
 (Detroit)
------------------------------------------------------------------------
TOTAL                                       77           52           42
------------------------------------------------------------------------

    Thus, only 68 percent of approved positions are funded, and 81 
percent of the funded positions are filled with a total of 42 fellows 
this year. 8 of the 35 programs (23 percent) have no fellow this year.

    The Chairman. Thank you, sir, very much.
    Ms. Jill Spriggs, Secretary, Consortium of Forensic Science 
Organizations.

 STATEMENT OF JILL SPRIGGS, SECRETARY, CONSORTIUM OF FORENSIC 
                     SCIENCE ORGANIZATIONS

    Ms. Spriggs. Mr. Chairman, Ranking Member Thune, and 
members of the Committee, thank you for asking me to testify 
before this committee on matters of forensic science.
    My name is Jill Spriggs, and I am the Crime Laboratory 
Director for the Office of the District Attorney, Sacramento 
County Laboratory of Forensic Services. I am also the past 
President of the American Society of Crime Laboratory 
Directors. In my career, I have overseen the daily operations 
of both a state and local crime laboratory, so I come from that 
unique perspective.
    Today I am here representing the Consortium of Forensic 
Science Organizations, or CFSO, which represents over 12,000 
forensic service providers.
    As you know, the National Academies released in February 
2009 a report on the state of forensic science in this nation. 
This report distills down to two operational and scientific 
needs: one, standardization in education, training, and 
forensic science delivery; two, resources across the forensic 
science community.
    In fact, the forensic science provider community requested 
Federal legislation to provide guidance and leadership to our 
community in response to this report. And still, 4 years later, 
this has not happened. In the absence of legislation, the 
Executive Branch has taken numerous efforts to reshape forensic 
science, such as the creation of the National Commission on 
Forensic Science.
    I would like to take this opportunity to lay out for this 
committee what we believe to be the greatest challenges facing 
the forensic community and solutions to solve them.
    First, while we do believe the Federal Government should be 
involved in state and local forensic science to maintain 
consistency and guidance, we do not believe a Federal oversight 
organization should be created. While the work the crime 
laboratory performs is ultimately the same, differences among 
state jurisdictions need to be considered, and there is not a 
one-size-fits-all approach.
    We believe and strongly support the creation of an office 
of forensic science in the Department of Justice to coordinate 
and lead on matters of accreditation, training, education, 
certification, and resource allocation.
    Second, many seem to believe there currently exist no 
standards on training or education in forensic science. There 
are currently 22 scientific working groups, or SWGs, who build 
consensus standards in the specific forensic disciplines they 
represent, as well as training guidelines and improvement in 
practices in the disciplines themselves.
    Federal, state, and local forensic scientists and other 
experts are represented on these SWGs, as well as academia, 
attorneys, judges, private laboratory scientists, and 
independent consultants. Historically, these SWGs have operated 
on very slim budgets and have succeeded in bringing to the 
forensic disciplines the much-needed structure.
    Why is the administration budgeting a program to create 
working groups that many believe will undo the work of the 
SWGs? An inordinate amount of money to start over is being 
proposed in the 2014 Federal budget. CFSO supports NIST 
advising the SWG groups in order to give the SWGs the much-
needed support, but to start over and reinvent the wheel is not 
needed and costly. This will prove extremely disruptive to the 
scientific community, as it waits for years for new standards 
to be disseminated and vetted.
    Third, research is an absolutely critical part of how we 
advance our science, as forensic science is just that, a 
science. Research is critical, but it has to be in the context 
of the requirements of the forensic science community. What is 
needed in the forensic science community is applied science, 
and by that I mean science that is taken from basic research so 
it can be applied in the crime laboratory.
    Fourth, capacity-building funds. Crime laboratories use the 
availability of Coverdell funding to aid in funding the non-DNA 
disciplines in training, backlog reduction, and the purchase of 
equipment. While Coverdell has been authorized at $35 million, 
in the last few years crime laboratories have received less 
than half of this money. And, indeed, in the 2014 budget, 
Coverdell has zero allocation. We are frustrated by the lack of 
attention to our significant backlogs in non-DNA disciplines, 
such as drugs, toxicology, and latent prints.
    Fifth, while we support the role of NIST in advancing 
standards and the role of the NSF in research, we remain 
convinced that the Department of Justice must remain involved 
in this process and provide the leadership to ensure that the 
science, standards, training, and education are not only 
applicable to the mission of providing scientific analysis to 
the criminal justice system but able to ensure that the grants 
meet the needs of the community.
    We believe the argument that forensics should be removed 
from law enforcement gets confused with how the crime 
laboratories should be led. We also believe that forensics 
should not be removed from law enforcement in its entirety. The 
accreditation process protects the administrative independence 
of laboratories.
    Mr. Chairman, while we are optimistic about the creation of 
the National Commission on Forensic Science, we must admit that 
we have concerns after seeing the charter signed by the 
Attorney General.
    First, the Commission is bound by FACA rules. This would 
mean state and locals do not have a voice in regards to any 
outcomes from the Commission.
    Second, it will not be developing or recommending guidance 
regarding digital evidence. Is digital evidence not as 
important a forensic discipline as DNA analysis? Digital 
evidence includes the analysis of cell phones and computers. 
Most of these cases involve homicides, sexual assaults, and 
white-collar crime.
    Should digital evidence not be accredited, adhere to 
quality assurance systems, or receive training, and is research 
not important? Currently, digital evidence is seen as forensic 
in nature and includes its own Scientific Working Group on 
Digital Evidence. If it is not considered a forensic 
discipline, we will be sitting here 10 years from now 
discussing why it was not considered a forensic discipline.
    Last, voluntary accreditation for crime labs over the last 
several years has increased dramatically. Within the next 3 
years, all crime laboratories will fall under ISO 17025, which 
include 400 international standards.
    CFSO supports mandated accreditation for crime laboratories 
in order to ensure standards are adhered to and a quality 
product exists, but we are very opposed to starting over. Crime 
laboratories ultimately serve the criminal justice system and 
the public at large.
    Thank you for allowing me to testify today. And, Mr. 
Chairman, I will be submitting more detailed reporting for the 
record.
    [The prepared statement of Ms. Spriggs follows:]

 Prepared Statement of Jill Spriggs, Secretary, Consortium of Forensic 
                         Science Organizations
    Mr. Chairman, Ranking Member and Members of the Committee:

    Thank you for asking me to testify before this Committee on matters 
of forensic science. My name is Jill Spriggs and I am the Crime 
Laboratory Director for the Office of the District Attorney, Sacramento 
County, Laboratory of Forensic Services. I am also the Past President 
of the American Society of Crime Laboratory Directors. In my career, I 
have overseen the daily operations of both a state and local crime 
laboratory. Therefore, I come from a unique perspective where I can 
address forensic issues from both a state and local position. Today, I 
am here representing the Consortium of Forensic Science Organizations 
or CFSO which represents over 12,000 forensic science providers.
    As you know, the National Academies released in February 2009, a 
critique or report on the state of forensic science in this Nation. 
This report distills down into two operational and scientific needs:

  1.  Need for standardization in education, training and forensic 
        science delivery

  2.  Need for resources across the forensic science community.

    In fact, the forensic science provider community requested Federal 
legislation to provide guidance and leadership to our community in 
response to this report and still four years later this has not 
happened. In the absence of legislation, the Executive Branch has taken 
numerous efforts to reshape forensic science such as the creation of 
the National Commission on Forensic Science. I would like to take this 
opportunity to lay out for this Committee what we believe to be the 
greatest challenges facing the forensic community and solutions to 
solve them.
    First, while we do believe the Federal Government should be 
involved in state and local forensic science to maintain consistency 
and guidance, we do not believe a Federal oversight organization should 
be created. Any solution needs to understand the important role of 
state and local labs. While the work the crime laboratory performs is 
ultimately the same, differences among the state jurisdictions need to 
be considered and there is not a one size fits all approach that will 
work. We believe and strongly support the creation of an Office of 
Forensic Science in the Department of Justice to coordinate and lead on 
such matters of accreditation, training, education, certification and 
resource allocation.
    Second, many seem to believe there currently exist no standards or 
training or education in forensic science. This could not be further 
from the truth. There are currently 22 Scientific Working Groups or 
SWGs who build consensus standards in the specific forensic disciplines 
they represent, as well as training guidelines and improvement in 
practices in the disciplines themselves. Federal, state and local 
forensic scientists and other experts are represented on the SWGs, as 
well as academia, attorneys, judges, private laboratory scientists and 
independent consultants. Historically, these SWGs have operated on very 
slim budgets and have succeeded in bringing to the forensic disciplines 
the much needed structure. Why is the administration budgeting a 
program to create working groups that many believe will undo the work 
of the SWGs? An inordinate amount of money to start over is being 
proposed in the 2014 Federal budget. CFSO supports NIST advising the 
SWG groups in order to give the SWGs the much needed support but to 
start over and reinvent the wheel is not needed and costly. This will 
prove extremely disruptive to the scientific community as it waits 
years for new standards to be disseminated and vetted.
    Third, research is an absolutely critical part of how we advance 
our science as forensic science is just that--a science. Research is 
critical but it has to be in the context of all the requirements of the 
forensic science community. What is needed in the forensic community is 
applied science and by that I mean science that is taken from basic 
research so that it can be applied in a crime laboratory.
    Fourth, capacity building funds. Crime laboratories use the 
availability of Coverdell funding to aid in funding the non-DNA 
disciplines in training, backlog reduction and the purchase of 
equipment. While Coverdell has been authorized at $35 million, in the 
last few years crime laboratories have received less than half of this 
money. And indeed in the 2014 budget, Coverdell has a zero allocation. 
We applaud the efforts to provide us more resources but we are 
frustrated by the lack of attention to our significant backlogs in non-
DNA disciplines such as drugs, toxicology and latent prints.
    Fifth, while we support the role of NIST in advancing standards and 
the role of the NSF in research, we remain convinced that the 
Department of Justice must remain involved in this process and provide 
the leadership to ensure that the science, standards, training and 
education are not only applicable to the mission of providing 
scientific analysis to the criminal justice system but also to ensure 
that the grants meet the needs of the community. We believe the 
argument that forensics should be removed from law enforcement gets 
confused with how the crime laboratory should be led. We also believe 
that forensics should not be removed from law enforcement in its 
entirety. The accreditation process protects the administrative 
independence of laboratories.
    Mr. Chairman, while we are optimistic about the creation of a 
National Commission on Forensic Science we must admit that we have 
concerns after seeing the Charter signed by the Attorney General. 
First, the Commission is bound by FACA rules. This would mean State and 
Locals do not have a voice in regards to any outcomes from the 
Commission. Second, it will not be developing or recommending guidance 
regarding digital evidence. Is digital evidence not as important a 
forensic discipline as DNA analysis? Digital evidence includes the 
analysis of cell phones and computers. Most of these cases involve 
homicides, sexual assaults and white collar crime. Should digital 
evidence not be accredited, adhere to a quality assurance system or 
receive training and is research not important? Currently, digital 
evidence is seen as ``forensic'' in nature and includes its own 
Scientific Working Group on Digital Evidence (SWGDE). If it is not 
considered a forensic discipline, we will be sitting here ten years 
from now discussing why it was not considered a forensic discipline.
    Further, in the past year, several news articles have been written 
regarding the state of forensic science, including many this week. As 
we have stated earlier forensic science, like any science, evolves and 
advances. With the more widespread use of DNA analysis over the last 
15-20 years, the incidence of exonerations should decline over time. 
The advances in DNA are phenomenal as opposed to the old ABO Typing in 
which 45 percent of the population had Type O blood.
    Lastly, voluntary accreditation for crime labs over the last 
several years has increased dramatically. Within the next three years, 
all laboratories will fall under ISO 17025 which include over 400 
international standards. With ISO 17025 accreditation, cradle to grave 
documentation exists in crime laboratories where it did not before. 
CFSO supports mandated accreditation for crime laboratories in order to 
ensure standards are adhered to and a quality product exists but we are 
very opposed to starting all over. We should begin with what we have 
and advance it with the science.
    Crime laboratories ultimately serve the criminal justice system and 
the public at large. The public deserves the best a crime laboratory 
has to offer and assurance the work coming out of crime laboratories is 
of the highest quality. Thank you for allowing me to testify today.

    The Chairman. Thank you very much.
    Maybe I should just take from what Ms. Spriggs said and 
maybe get to the heart of the matter.
    There seems to be a general rejection by you of a national 
commission, a sense that you can't apply one standard to all 
situations and it is not a cookie-cutter business. That is the 
same argument they used in the health-care bill, and of course 
they are probably correct in that.
    But I had thought in my interest in forensics that--and our 
state university is working really, really hard on this--that 
there are some things which have to be deemed to be true or 
untrue, accurate or inaccurate, scientific or unscientific, no 
matter whether they are done in Charleston, West Virginia, or 
in Tuscaloosa, Alabama--in other words, that science is 
science.
    You would argue, perhaps, that a hair follicle is subject 
to local scientific analysis from the law enforcement folks and 
that there is not much that a national forensics commission--I 
just want to get into this subject, because there seems to be 
tension between the two. Not between the first three witnesses, 
but between you, ma'am, and the idea that the truth in 
forensics varies, can vary and should vary, according to where 
it is done, which was not my understanding of what at least I 
had to say and my understanding of what others had to say.
    Could any of you sort of discuss that?
    Mr. Bromwich. Well, let me start.
    I agree with you; there is only one set of scientific 
standards, validated by basic and applied research. And we 
shouldn't have a Federal system where you have different 
standards that are applied because of where a crime arises. I 
am not sure that is what Dr. Spriggs was saying, but if it was, 
I disagree with that.
    I do think that there is a crying need for Federal 
leadership and funding on these issues, particularly in the 
area of basic research, applied research, standards-setting, 
and so forth. And I do disagree with Dr. Spriggs that basic 
research needn't play a huge role in this. She stressed applied 
research. You need both.
    I think some of the disciplines that we all took for 
granted and that we viewed as telling the truth, like 
fingerprint analysis, have been under attack recently because 
they have been found not to be as foolproof as we thought. 
There was the highly publicized case about a decade ago 
involving Mr. Mayfield from Oregon, where the FBI misidentified 
Mr. Mayfield as the source of a print in a terrorism case.
    So I think there is an absolutely pressing need for both 
applied research but also basic research and standards-setting 
on a national level.
    The Chairman. Does one have to choose one mode or the 
other? Are they meldable, or are they not?
    Mr. Bromwich. Talking about basic research and applied 
research?
    The Chairman. Yes.
    Mr. Bromwich. You need both. You absolutely need both.
    The Chairman. Anybody else care to--you know what I am----
    Ms. Spriggs. I----
    The Chairman.--getting at. I have so many examples, as I am 
sure that the other Senators here do too, of where you have 
constituencies or organizations which traditionally --I mean, 
for example, I remember in West Virginia when I was Governor, 
one of the hardest things was to get counties to agree on basic 
practices of what sheriffs did. It was just really hard. 
Everybody had their own way of doing things, and they stuck 
with those things.
    And, I mean, we built an academy for training sheriffs and 
put up all 55 of their county badges and all kinds of things to 
try to create goodwill and cooperation. And now there is a lot 
less of that competition and an understanding that there are 
sort of common standards that need to be adhered to.
    I don't want to over-stress my point, and I am certainly 
using up my time. But I just felt in you, Ms. Spriggs, a sense 
that, well, our budget got cut here and our budget got cut 
there. And everybody is getting cut everywhere--everybody. And 
that you don't want to have a national commission.
    What is dangerous about a national commission to you?
    Ms. Spriggs. First, let me start with the standards. I am 
sorry if I have been confusing.
    If analysis is performed--let's take, for example, drug 
analysis. Whether it is performed in Sacramento County on a 
white powder such as cocaine versus the analysis performed in 
Florida, the basic analysis is still the same.
    What the one-size-does-not-fit-all goes to is the state 
jurisdictions and what they would see as a reasonable quantity 
of cocaine. So that is what I mean by a one-size-does-not-fit-
all.
    The Chairman. Yes, I don't know how that fits into 
forensics.
    But, in any event, my time is gone, and Senator Thune.
    Senator Thune. Thank you, Mr. Chairman.
    And I want to just kind of follow up on that. But, Ms. 
Spriggs, in your testimony you expressed concerns about the 
charter for the new national commission. And, again, I would 
just ask you if you could elaborate a little bit on those 
concerns, specifically with regard to the participation 
opportunities for state and local practitioners.
    Ms. Spriggs. We do applaud the Executive Branch for taking 
a leadership role in the National Commission on Forensic 
Science, although we feel that it would be best to have an 
office of forensic science under the Department of Justice, 
since that is a judicial system where we apply forensics.
    But with the issue of the National Commission, where we see 
two key, important things that concern us are: one, the imposed 
FACA rules.
    This means that state and locals will not have a way of 
vetting what comes out of that Commission. So when you talk 
about research and you talk about presenting research and you 
present it to different conferences, what you are doing is you 
are getting feedback from other parties so that you can have 
questions regarding the research. This is not going to happen 
on anything that comes out of those commissions because of the 
FACA rules imposed on that for state and local communities. We 
want to see what comes out of that Commission and vet it before 
it is imposed.
    Second, we feel strongly regarding digital evidence. 
Digital evidence, under that charter, will not be looked at as 
a forensic discipline.
    If you look at the crime laboratories across the country, 
digital evidence is one of the places where we have a backlog 
of cases. It is one of the booming things that we see in our 
forensic caseload. I believe the Netherlands paper also talked 
about that. So not to include that as far as research, 
training, standards-setting, to us, brings harm to the 
discipline of digital evidence.
    Senator Thune. To your knowledge, how much does it cost to 
operate the scientific working groups at DOJ?
    Ms. Spriggs. Approximately $150,000 was the cost to operate 
the Scientific Working Group on the DNA Analysis Methods.
    Senator Thune. And how does that compare to the funding the 
administration has proposed for NIST to do its own standards-
related work?
    Ms. Spriggs. As opposed to funding for NIST, NIST has been 
allocated at $3 million, looking at the new budget, if that 
were to go through.
    Senator Thune. Are those duplicative efforts? I mean, do 
they actually serve different or do they serve complementary 
purposes?
    Ms. Spriggs. They serve differently in that NIST will be 
starting scientific guidance groups, which will actually 
reinvent and take over those SWGs and redo the standards. And 
we feel that while NIST should play a part in SWGs, it should 
not take those standards and redo them.
    Senator Thune. The National Academies report recommended, 
and I quote, that ``forensic science laboratories should be 
independent of or autonomous within law enforcement agencies.'' 
end quote.
    How do you foster that sort of administrative independence 
at your lab?
    Ms. Spriggs. We foster that by ISO accreditation, 
accreditation to the ISO 17025 standards. Within those 
standards are--and Standard 4.0.
    When an assessment or an audit is done, the laboratory will 
be looked at in regards to those particular standards. One is, 
does everybody understand their role, the parent organization 
as well as the crime laboratory? Two, is it an autonomous 
relationship? Three, is there undue influence? And four is 
policies and procedures, do they identify bias?
    We also do this by, every case that goes out the door is 
technically reviewed and administratively really reviewed. Do 
the results in the case notes support the conclusions?
    Also, remember, the notes are also discoverable, as well as 
we encourage prosecutors and defense attorneys to sit down with 
the crime labs and go through the case before they even go to 
court.
    Also, one of the other ways that we do it is through, 
again, discovery.
    So these are just some of the things that we look at so 
that there isn't undue influence and bias. We also train our 
crime labs in bias. We train them in ethics. That is part of 
our accreditation also.
    Senator Thune. Mr. Tsin-A-Tsoi, the fragmentation that you 
refer to in your testimony seems to be inherent and fundamental 
to our country's system of state and local jurisdictions. How 
does the criminal justice system and forensic science 
infrastructure in the Netherlands differ from that here in the 
United States?
    Mr. Tsin-A-Tsoi. Well, it is a small country, Senator.
    [Laughter.]
    Mr. Tsin-A-Tsoi. That helps.
    But also we do have other organizations within the 
Netherlands that do forensic investigations. The NFI, though, 
is the prime service provider, so to speak, for law enforcement 
agencies. We are, however, independent of them. And we also do 
cases for other countries, and we also do cases for other 
government agencies than just the law enforcement agencies.
    Senator Thune. Can you describe what you have done with 
NIST on behalf of the NFI?
    Mr. Tsin-A-Tsoi. Well, actually, that is just starting up 
right now. And, actually, later this week or next week, we will 
have discussions with them.
    Senator Thune. OK.
    Mr. Tsin-A-Tsoi. Yes.
    Senator Thune. But there is a Memorandum of Understanding 
on that effort?
    Mr. Tsin-A-Tsoi. Yes.
    Senator Thune. So that hasn't really gotten under way yet 
or commenced.
    Mr. Tsin-A-Tsoi. Well, we have to define what exactly we 
are going to do about standards-setting. From our point of 
view, as a forensic community, we have a standards problem. And 
we want to solve that and want to work on that very hard. And 
we know that NIST is an absolutely top-notch organization, the 
state-of-the-art worldwide, and this is why we tried to get in 
contact with them. And they were interested, as well.
    Senator Thune. OK. Thank you.
    Mr. Chairman, my time has expired. Thank you.
    The Chairman. Thank you, Senator Thune.
    Senator Chiesa?

                STATEMENT OF HON. JEFF CHIESA, 
                  U.S. SENATOR FROM NEW JERSEY

    Senator Chiesa. Thank you, Mr. Chairman.
    And thank all of you for your testimony.
    I know in my own experience of the great pains that the law 
enforcement community takes to make sure that they get it 
right. The law enforcement community is there to keep us safe. 
And I know that anytime you bring a charge against anybody, you 
really need to have all of your evidence in order and you have 
to have drawn a conclusion that the case should be brought, 
because whether or not the case is proven, you have altered 
that person's life for good.
    And I know there is no suggestion here that there is not 
excellent work being done, but that work, in my experience, has 
been of the highest quality. I have been extremely proud, 
whether it was with the FBI or with the state police in New 
Jersey, extremely proud to work with those law enforcement 
communities.
    But I know that we can always try to strive for a better 
result and a more complete result and one that reminds the 
public and ensures the public's trust in the kinds of results 
that we are getting.
    I think Senator Thune made an excellent point earlier, too. 
And that is, to some extent, scientific evidence, when you call 
it scientific, can overwhelm the case from the start. Because 
if a scientist gets up and takes the witness stand, there is a 
status that that witness has that is different than a lay 
witness who says, I saw somebody do something.
    And I think there is an expectation now, because of the way 
the cases are portrayed on TV, that if you have three witnesses 
that saw a crime committed, where is your fingerprint expert, 
where is your DNA expert? As you know, those are costly things 
that you can't do in every case. So I understand the balance 
and the things that have to go into these issues as we develop 
them.
    So let's start with Mr. Bromwich. You talked about 
investigations that you were involved in. I know you spent part 
of your life in the world of a prosecutor. What is your sense 
of the strides that have been made since the investigation in 
Houston in 1994 to the present? Are we making the kinds of 
strides you think that are making a difference?
    And is the level of commitment here what it should be so 
that when we bring scientific evidence into a case, with the 
kind of weight that it carries, that it is being brought in an 
appropriate and a complete way?
    Mr. Bromwich. Senator, has progress been made in the last 
20 years? Undoubtedly, I think in part through the awareness of 
the way things can go wrong if they are not done right.
    But are we where we need to be? No. All you have to do is 
pick up the newspaper to see about crime lab problems that have 
arisen just recently in Texas, in Minnesota, in Massachusetts, 
in New York. They just happen too frequently.
    And as you know because you were a prosecutor, if an 
examiner has been found to do bad work in one case or engaged 
in intentional misconduct in one case, that imperils scores of 
cases. They are going through that right now in Massachusetts, 
where they had a drug examiner, and they are having to 
reexamine literally thousands of cases.
    When I was a prosecutor a long time ago, even before you 
were, putting in scientific evidence was viewed as routine, 
almost automatic. We viewed the expert witnesses as our coaches 
and tutors, and they told us what to ask them and they gave us 
what their answers would be.
    We are removed from that but not far enough removed from 
that. And by that I mean there is a tremendous amount of 
additional education that needs to go on to train prosecutors, 
to train defense counsel, to train judges in some of the basics 
of forensics.
    In our Houston investigation, 2005 to 2007, we found that 
defense counsel almost never challenged forensic experts, even 
when there was a lot of information in the public sector 
suggesting that they were doing----
    Senator Chiesa. That is a little bit of a separate issue, 
though, right? I mean, that is on the obligation of the defense 
counsel. And I appreciate everything you are saying. I am going 
to run out of time in a minute.
    When we view these cases retrospectively and you talk about 
the things that you are talking about, someone acting for the 
wrong, fraudulent motive, whatever it is, someone acting 
incompetently, I think those are different things, right? 
Someone is motivated by, I want to--there is a horrific crime 
that occurs; there is enormous pressure on the prosecutor to 
stay the fears in that community.
    When you talk about these national standards, are they 
getting at the training that these folks are going to get?
    Because I know--and maybe Ms. Spriggs can talk to this, as 
well--what you worry about when you are bringing cases is, is 
my evidence going to get to me when I get to trial, whether it 
is a speedy trial issue so your case has to be brought in a 
certain amount of time.
    So are there any concerns that these national standards are 
going to create delays that the defense counsel may use then to 
put further pressure on prosecutors that they are not bringing 
their cases fast enough?
    Mr. Bromwich. I don't have that concern, Senator. I think 
the work is going to continue to be done at the local level, 
and the speed will be the same.
    Senator Chiesa. Thank you, Mr. Chairman. My time is up.
    The Chairman. You are welcome. And you are new, so you get 
a couple of minutes extra.
    [Laughter.]
    Senator Chiesa. Well, thank you.
    Ms. Spriggs, one of the things I have thought about when 
you are saying one size doesn't fit all, if you have a state 
like New Jersey, we can centralize a crime lab in one location 
and multiple areas of the state can have access to that 
location. If I was in a state like Montana, where it is 
geographically enormous, they may not have the ability to have 
one location to do all of those things.
    Is there any concern on your part, in terms of your one 
size doesn't fit all, that if we create these national 
standards we are going to have problems standing up enough 
locations to serve different size communities with different 
kinds of needs?
    Ms. Spriggs. I think with the national standards what we 
are talking about is having an underlying national standard. 
So, like, right now we have what is called the DNA Advisory 
Board standards that every laboratory that is doing DNA in this 
country must follow. So those are the standards that we are 
talking about, not so much the legal standards as to what is a 
usable quantity or things like that.
    I can tell you, I oversaw 13 laboratories in California and 
I oversaw over 40 counties within California. Each county had 
their own jurisdiction with a little bit of how they wanted to 
report out results as far as drugs go. Some people thought this 
amount was a usable quantity, and some didn't. But the 
underlying science of how we got to what that drug was was the 
same.
    Now, you asked Mr. Bromwich about, is the defense using 
these standards to swap out speedy trials and because of the 
standards it is taking longer. That is true in some cases. With 
the ISO accreditation, we do have cradle-to-grave documentation 
now. And a lot of the cases that Mr. Bromwich talked about in 
Massachusetts and Minnesota, they are not accredited. They are 
not accredited to these international standards, ISO 17025.
    Another issue that really needs to be brought up, and it is 
one that Dr. Tsoi brought up, is management of a crime 
laboratory. While you see a lot of these issues, a lot of these 
issues are not so much quality issues, like in Massachusetts 
and Minnesota; it is a management issue. It is lack of 
management--management looking at backlogs, management in 
looking at what are the differences between people who are out 
putting cases.
    So if I have someone in a drug section who is putting out 
50 cases a month but I have someone else putting out 300 cases 
a month, that to me is going to query something in my head 
that, okay, there is something going on.
    So there is another issue here that needs to be brought up, 
and that is a lack of management of crime laboratories. And for 
that, remember, we are taking a lot of bench scientists and 
putting them in as managers who sometimes don't have the 
qualifications to be a manager or to look at backlogs, look at 
statistics, how much is a case costing per case, things like 
that.
    Senator Chiesa. Thank you.
    Thank you, Mr. Chairman.
    The Chairman. Thank you very much.
    Senator Warner?

                STATEMENT OF HON. MARK WARNER, 
                   U.S. SENATOR FROM VIRGINIA

    Senator Warner. Thank you, Mr. Chairman. Appreciate you 
holding this hearing. I don't know a lot about this subject. I 
know you have had a great deal of interest.
    But I am actually asking for an update, because when I was 
Governor, I had two remarkable circumstances. One that I think 
has actually become somewhat known in the science, the one with 
Mary Jane Burton, a woman in our lab who had literally attached 
DNA swabs to thousands of cases that she had worked on before 
DNA evidence had moved ahead. And suddenly we discovered this, 
and, you know, what do you do with it?
    We went out and finally went back and checked all those 
cases, exonerated a number of people. We found, actually, that 
there were then--and I would be curious for your commentary on 
this--people had been exonerated, but there was no procedure in 
place to make sure that information, if it got to the 
prosecution, actually got relayed then back to the person who 
potentially was exonerated.
    We had a similar case that was even higher-profile where, 
actually, somebody had been executed. The cover of Time 
magazine said, this man is innocent. People had spent years 
trying to prove his innocence.
    And as a supporter of the death penalty, and any Governor 
who has gone through that most ultimate decision, there was DNA 
evidence that retained, there was question about chain of 
custody, and the question of, do you go back and retest years 
later after the execution and reopen that? I thought, as 
someone who had made that ultimate decision, not on this 
individual, but you had to retest. It ended up proving the 
guilt of the individual.
    But I just wonder whether these procedures--this was 7, 8, 
9 years ago on these cases--you still read about this stuff, 
Senator, as you mentioned. But have the procedures moved 
forward where there are kind of accepted codes of conduct?
    And I heard from my staff that there was some question 
about national versus local standards. I would hope that would 
be about procedural standards, not about national versus local 
science. The science ought to be science, and we should not be 
afraid of where that evidence leads us.
    So I hope somebody can clear up my staff's comments to me, 
one, about the distinction, that if there is a debate between a 
national standard versus a local standard, that that is about 
procedures. I actually believe that this should be looked at on 
a national basis and science ought to trump all. But there is 
not a question about the underlying science in terms of 
different standards, are there?
    And then, second, have some of these, you know---- because 
these incidents are kind of a little bit worn off, I think you 
would need to have some level of national procedures because 
you would want to have that guidance if it becomes a case of 
first instance.
    A bit of a rambling question, I know.
    Mr. Bromwich. Let me answer the second part of your 
question first. And you are really alluding to situations where 
problems are discovered, either with the work of a particular 
analyst or a particular type of analysis, what kind of system 
is in place to inform the relevant people, namely defendants 
and defense counsel, that they might have an issue that they 
need to do something about.
    I think it is getting better in some respects, but there 
are still noteworthy instances where things don't work the way 
they should. So, for example, I mentioned at the outset the 
investigation my agency did of the FBI Lab back in the period 
of 1995 to 1997. The Justice Department set up a task force 
within the department whose task was to review cases worked by 
the examiners whose competence and conduct we are reviewed 
during our investigation.
    In a series of articles in The Washington Post within the 
last 6 months or so, it was disclosed that, in fact, that work 
didn't get pushed forward, that defense counsel were not 
notified in a systematic way. And, in fact, that process is now 
the subject of a follow up inspector general review.
    I like to think that is not typical, but it happens. And I 
think one of the things that every jurisdiction, national, 
state, and local, needs to do is when examples of this come to 
light, there has to be a sustained, coherent process to make 
sure that the relevant people are notified. That doesn't happen 
enough.
    Senator Warner. Are you saying there is not even kind of 
the protocol standards, even if they are not legally 
enforceable, that are kind of viewed as traditional or accepted 
rules of the road, in effect, in terms of process or protocol?
    Mr. Bromwich. There are post-conviction processes in all 50 
states, and they differ. But I think the kind of situation you 
faced when you were Governor of Virginia, how do you deal with 
a particular examiner who did something they shouldn't have 
done, how do you followup, what kinds of testing do you do, 
what kind of notification process, that is not at all 
standardized.
    And I think in each instance when it comes up it is treated 
as a one-off by whatever jurisdiction is dealing with it. It is 
unfortunate, but I think it is true.
    Ms. Spriggs. May I add a comment?
    Senator Warner. Please.
    Ms. Spriggs. As far as the case where the swabs were in the 
case file, I don't think that would happen today. We have 
policies and procedures in place that are part of our 
accreditation that talks about what we are to do with evidence, 
make sure there is a chain of custody, all of that. As well as, 
when an assessor or an auditor comes through, they actually 
take case files and take a sampling to make sure that you are 
following your policies.
    The underlying science that you were talking about is the 
same throughout the crime laboratory systems throughout the 
nation. The underlying science is the same. So if I have been 
confusing in that message, I am sorry.
    Senator Warner. But I guess what I would just say, Ms. 
Spriggs, is that, you know, in the case of Mary Jane Burton it 
was swabs that were discovered in 2003-2004. I, again, caught a 
bit of your testimony just as I walked in. You know, that was 
then. Today it may not be swabs; today it may be digital. Or 
there may be a host of residual information that we are not 
fully aware of as the science moves forward.
    It would seem to me, even if it was not legally 
enforceable, the notion that there ought to be some level of 
protocols so that policymakers, prosecutors, others, you know, 
don't all kind of see these as cases of first impression. Even 
if you don't have to follow the rules, it just seems to me 
would make some sense, and it would make some sense if you had 
some national effort to try to at least inform those 
policymakers.
    So I sure as heck would love to have had in both cases, 
both in the reexamining of the already-executed individual and 
the case of Mary Jane Burton, someplace to look. I think I got 
to the right decision point, but I would have liked to have had 
some guidance. I could have gotten through a lot less sleepless 
nights, particularly on the reopening of the case of the 
executed individual.
    Ms. Spriggs. One other item that was brought up, I think by 
Mr. Bromwich, was, when there is an issue in a crime 
laboratory, you do have an obligation to notify not only the 
prosecutor but you do have an obligation to notify the defense.
    So when there is an issue in a crime laboratory--let's say 
there is a mix-up of samples. Because of our ISO accreditation, 
we do what is called a CAR, a corrective action request, where 
we follow through. We go back and we look at prior cases; we 
notify the prosecutor on those cases. Part of that corrective 
action is notification to the defense community that you have 
this issue in your laboratory.
    And all of that is looked at when an auditor comes in or 
assessor comes in to do your accreditation.
    Senator Warner. Thank you.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Warner.
    There is not much that Senator Warner doesn't know a lot 
about.
    [Laughter.]
    The Chairman. I say that sincerely and with respect, as I 
hope you know.
    I am going to do something I have never done before. It is 
like we are stuck on a record here; it keeps playing the same 
music.
    And to be honest with you, Ms. Spriggs, I have the feeling 
that you--see, on the one hand, you just in the last answer to 
Senator Warner, you said science has to be science all over the 
country. And when I heard that, I had a good feeling.
    More or less everything else you have said, it sounds to me 
like you are trying to protect a group which you represent as a 
lobbyist, so to speak, from having to change. Because people 
genuinely don't like change. That is true in the human race.
    And you are talking about budget cuts and process and 
management and backlogs, all of which are very important. But, 
to me, the basic question of this hearing, is that science has 
to be agreed on and that has to be acceptable in every county 
in every state all over the country, not because there is a law 
that says there has to be, but it doesn't make any sense for it 
not to be that way. As Senator Warner said, science is science.
    And I think what the question is--I mean, this fellow, 
Harry Edwards--you claim that the FBI, Ms. Spriggs, that the 
FBI's SWGs, as you said--actually, it is more helpful to us if 
you say ``scientific working groups''----effectively develop 
standards and guidelines for the forensic science disciplines, 
and there are experts who disagree with you.
    Judge Harry Edwards, who was one of the leading authors of 
the report which I held up, has stated that SWGs are of 
questionable value. He says that, among other problems, SWGs do 
not meet regularly, their standards are too vague, and they 
don't try to determine if anybody is actually implementing 
their recommendations. Now, I have no idea whether that is true 
or not, but he is a leading Federal judge and he is a leading 
expert on forensic evidence.
    So I am a little bit in a state of confusion. Because when 
you say science has to be science everywhere, my head would 
nod. And, to me, that is what this hearing is about. But I may 
be missing something.
    You, sir, are not saying much.
    [Laughter.]
    The Chairman. So what I would like to have during my time, 
and I may add on it a couple minutes--that is really the reason 
I gave him 2 extra minutes.
    [Laughter.]
    The Chairman. Kind of duke it out amongst you. What is the 
problem here? What is the basic disagreement?
    Dr. Schmunk. Senator, since you did look at me, I will 
respond from the medical examiner community.
    Our issue is not so much that--I think many of the crime 
labs have wonderful accreditation standards. Our problem 
throughout the country is there are no standards and there are 
no accreditations for the vast majority of offices in this 
country.
    So keep in mind that the medical examiner, in at least a 
death case, is going to be the one that collects the specimens 
that we send to the crime lab. If there is no coherent policy 
to collect DNA, if there is no coherent policy to collect 
fingernail scrapings, for example, then the crime labs will 
have nothing to work with.
    So my problem with the medical examiner situation is that 
we have most of the offices in the country that are working 
under policies that have been developed in their own offices, 
but there are no accreditation standards that they follow.
    The Chairman. And you are not saying that just from an 
academic point of view. You are saying it from an accuracy-
times-accuracy point of view.
    Dr. Schmunk. Correct.
    The Chairman. Yes.
    Our Netherlands expert?
    I am just trying to find out what I thought this was going 
to be about as a hearing and what it turns out it may be about 
as a hearing. I need to get that settled. I have all these 
questions I want to ask, but I can't get past this. Maybe it is 
my limitation.
    Please, sir.
    Mr. Tsin-A-Tsoi. I am not a forensic scientist by 
background, by training. I do have a physics Ph.D., but I 
joined this sector just 6 years ago when I became CEO.
    What I noticed was that, really, it is a rather closed 
field, a rather protective-of-itself field. And I think that is 
probably one of the reasons that these discussions lead to some 
resistance within the field. And I had this resistance within 
our own organization as well, in the beginning especially.
    Also, yes, some forensic disciplines are really 
fundamentally subjective right at the moment. They depend very 
much on the judgment of individual professionals. And, in the 
past and maybe still, that is something that is tacitly 
welcomed by some of these professionals, because, you know, it 
places a very large premium on their personal opinion on the 
case.
    And saying that their work is not scientific--because that 
is, then, what you are saying, isn't it? What we are saying 
here, almost all of us, is that, well, you know, maybe some of 
the work you have done in the past presenting yourself as a 
scientist is maybe not so scientific after all. And that is a 
big thing to say. That might also play a role in this. And, 
actually, let me put it like this. In the Netherlands, in my 
institute, yes, this has played a big role, in the beginning 
especially.
    And also, a final point: The way forensic science came 
about was not really as a science maybe from the beginning. It 
started out as something extra on top of normal, traditional 
investigative methods, and it grew out from that kind of 
position. This is the reason probably why many forensic 
institutes or forensic laboratories are still part of the 
police.
    I certainly agree with the statement in the National 
Academy of Sciences' report that it is better to have forensic 
institutes to be independent of the customers that they serve. 
And from the Government's point of view--I don't believe that 
people are biased, but, you know, if you are a part of a 
specific organization and you work always only for that 
organization which has specific tasks in society, that tends to 
have a certain influence. It doesn't have to be obvious but it 
can be very tacit.
    So what I am trying to say here is that forensic science 
has not evolved in science, it has evolved in police. And that 
has had a very dramatic influence on what we call forensic 
science.
    Thank you.
    The Chairman. So, in a sense, you would say that--oh, 
Senator Blumenthal has come in. And he knows everything about 
everything.
    [Laughter.]
    The Chairman. You do. I am glad you came.
    I am struggling here as best as I can. I am neither a 
lawyer nor a scientist, and I didn't get very good algebra 
marks. But I care about this subject immensely.
    And, in a sense, then, you are saying that there is a 
science, there is an answer. And in a DNA case, maybe that is 
true, but in some other--you are not saying that?
    OK. Well, whatever.
    [Laughter.]
    The Chairman. But that it has evolved on a local basis, 
therefore in variation.
    And as you watch--granted, these are some of the episodes 
on television, but as you watch some of these programs, all 
kinds of things enter in. I mean, there are political 
pressures. Is somebody going to pursue this or pursue that? 
Would that mean they would lose their standing? What about a 
judge?
    You know, I mean, there are a lot of moving parts in a 
highly tense world of, if you go to prison, you don't go to 
prison, what it is that is used as evidence has to be 
absolutely right. And to the extent that science is involved in 
that evidence, it has to be absolutely right.
    Have I said nothing, or have I said something?
    Mr. Bromwich. I think you have said something.
    [Laughter.]
    Mr. Bromwich. I agree with almost everything that Mr. Tsoi 
said. And I am not a forensic scientist, and I am not even a 
scientist. But I have learned a lot about the way forensic 
science is applied in our forensic labs through the 
investigations I talked about at the outset. And I learned it 
from forensic scientists who were part of our investigative 
teams and who provided me with a lot of insight into the way 
forensic science is currently practiced and the way it should 
be practiced.
    I think there is resistance in the existing forensic 
science community because, up until very recently, it was a bit 
of a closed guild and it was not subjected to a lot of external 
scrutiny. That has changed very substantially with the 
development of DNA and the exposure through DNA analysis of 
some of the flaws and mistakes that the other forensic sciences 
and analysts in those forensic sciences have committed.
    So I very much agree with Mr. Tsoi that there is an 
insularity to the forensic science community. But that is not 
to devalue the hard and good work that many of the people in 
the community do. And it is not to suggest, as I think Ms. 
Spriggs was doing, that anybody is suggesting that you burn the 
current system to the ground.
    You are really talking about a house, if you will, whose 
foundations are sagging and there are problems with it, and you 
want to bolster it, you want to support it, you want to build 
firmer foundations for it based on science. Everyone is the 
winner if you do that.
    Ms. Spriggs. I believe we are pretty much on target, all of 
us. And let me explain what I mean.
    When you are building a house and it is falling down and 
you want to bolster it, what do you do first? You want to check 
with the person who owns the house and help them develop the 
plans for the new house in case you want to change a room or 
you want to do something.
    We support the commission. We support national standards. 
What we want to do is be a part of those. Right now FACA----
    The Chairman. Who says you are not?
    Ms. Spriggs. Because rules are imposed on the----
    The Chairman. The commission isn't even fully appointed 
yet.
    Ms. Spriggs. But it is going to be imposed. If you read the 
charter, FACA rules are imposed.
    We want to be part of the solution. We want to have a place 
at the table to give our community a chance to vet. State and 
locals need a chance to help develop these standards.
    The Chairman. I don't disagree with you. And I have no idea 
what a FACA thing is. I hope it is not a dirty word. But I have 
no idea what it is, but I----
    Mr. Bromwich. Senator, it is----
    The Chairman.--don't want you to hide behind it.
    Mr. Bromwich. I maybe know too much about FACAs because I 
set one up recently at the Department of the Interior. I am not 
aware of any limitation on the involvement of state and local 
personnel.
    The Chairman. Nor am I.
    Ms. Spriggs. Well, I can only tell you that when----
    The Chairman. Let me just read from--excuse me--from the 
Commission charter.
    We have gotten way off here, Senator Blumenthal.
    He was an attorney general for 29 years, so don't discount 
him, all right?
    [Laughter.]
    The Chairman. This is ``Membership and Designation'': The 
Commission will be co-chaired by a senior DOJ official and a 
senior NIST official.'' That is both sides. You are with DOJ, 
and then others might be with NIST, including me.
    ``The Commission shall recommend whether the Attorney 
General shall endorse guidance and practice guidelines for DOJ 
laboratories and forensic-science-related policy initiatives.''
    And then, to the point: ``The Commission will consist of 
approximately 30 members appointed by the Attorney General in 
consultation''--in consultation--``with the Director of 
NIST''--OK?--``and co-chairs of the Commission. The Commission 
members will be selected to achieve a balance of backgrounds, 
experience, viewpoints, expertise, and scientific, legal, law 
enforcement, academic, and advocacy professions.''
    It is hard to argue that the state and local reps won't be 
included in this list. And it is not even done yet.
    Ms. Spriggs. If you look at number two under 
``authority''----
    The Chairman. I am going to call on Senator Blumenthal----
    Ms. Spriggs. Oh, I am sorry.
    The Chairman.--because I am at 9 minutes, which is a 
criminal act.
    [Laughter.]

             STATEMENT OF HON. RICHARD BLUMENTHAL, 
                 U.S. SENATOR FROM CONNECTICUT

    Mr. Blumenthal. Mr. Chairman, I would be happy to yield to 
you to continue----
    The Chairman. You can go ahead.
    Senator Blumenthal.--your questioning. Thank you.
    First of all, let me thank you for having this hearing and 
for your dedication to this cause, which, as you have very, 
very accurately stated, is really profoundly important to the 
quality of justice in our country but also in many, many other 
ways.
    We had a hearing just days ago on the derailment and 
collision of two trains in the Bridgeport area of Connecticut 
involving the application of forensic science to determine and 
investigate what was the cause, what should be the consequences 
in terms of holding either companies or individuals 
accountable. So forensic science has far-reaching and profound 
effects in our justice system and in many other areas of our 
life.
    And I want to thank the Chairman for his bill, the Forensic 
Science and Standards Act of 2012, which I think advanced this 
debate very substantially and, in fact, I think, led to the 
creation of the Commission, which was one of the provisions of 
the bill, and other progress that I think has flowed from his 
focus on this area.
    And thank each of you for your dedication to raising the 
bar, raising the standard, and assuring that there is more 
professionalism.
    My view, as a former United States attorney, a prosecutor 
for 4\1/2\ years in the Federal courts, and then as Attorney 
General of our state of Connecticut, is that the science is, in 
fact, progressing. And the best evidence of it is the new 
institute at the University of New Haven, which has been headed 
by Dr. Henry Lee of New Haven. And I was pleased to recommend 
him for the Commission, as a matter of fact.
    The Commission and Dr. Lee have been tireless advocates for 
making sure that we have proper accreditation and that there 
are proficiency tests and certifications created and 
standardized in this area. And he was one of the first to 
implement laboratory standards so that we avoid some of the 
pitfalls that the 2009 report of the National Academy of 
Sciences brought to light.
    So my question, first of all for Dr. Schmunk, is, how can 
we increase the number of trained pathologists devoted to 
forensic science? Or, really, to the entire panel if you have 
views on this subject, the number of pathologists.
    Do we need more residency slots? What can be done to spur 
all of the professions involved--it is really 
multidisciplinary--to not only recognize but incentivize people 
to specialize in this area?
    Dr. Schmunk. I will touch on your last point first, and 
that is incentivization. And one of the incentives that can be 
given--a medical examiner is basically a public servant, and 
loan forgiveness for the enormous amount that each of these 
students have for their medical education would go a long way 
to convince them to go into medical examiner, forensic 
pathology, rather than diagnostic radiology, where they could 
make a lot more money but might not have their student loans 
forgiven.
    We are approaching this, along with the College of American 
Pathologists and other professional organizations, from the 
ground up. We are encouraging medical students to have 
rotations in forensic sciences, all the way up through students 
that are currently in pathology residency programs. And so 
there are many things that can be done.
    One of the problems with the training programs in forensic 
pathology, unlike with most graduate medical education, which 
has been a problem with funding throughout the past several 
years in general but especially with regard to forensic 
pathology, many of our training programs do not exist in 
institutions where there is Federal money pumped in for 
graduate medical education. We are at the county and state 
level, and so the money that comes for training has to come 
from the local taxpayers.
    Senator Blumenthal. Do you think that HHS, the Department 
of Health and Human Services, can and should be supporting more 
programming that provides those incentives for medical students 
to choose forensic pathology at a higher rate?
    Dr. Schmunk. Yes. And one of the things that is in my 
prepared statement that I think the chair will have a strong 
interest in, being on Finance, is that there is an issue with 
payment for death investigations and autopsies. Many years ago, 
the accreditation council removed the requirement of 20 percent 
autopsies. So, basically, we are now down to less than 10 
percent of deaths in the country are autopsied, and most of 
those are done by forensic pathologists in medical examiner and 
coroner systems.
    If the autopsy was a compensable expense to these 
hospitals, which it is not currently--one of the very few 
things that Medicare will not pay for is an autopsy. Once you 
are dead, the Federal Government pretty much does not care 
about you.
    If we would put money into Medicare and convince private 
insurance to pay for autopsies as a quality assurance measure, 
which we know it is, that would go a long way to funding many 
of these programs, including the education of our physicians 
into forensic pathology.
    Senator Blumenthal. Very interesting point.
    Any other observations on that question?
    Mr. Bromwich. I think it is a broader problem than just 
pathologists. I think there is a pressing need to provide 
various kinds of incentives, financial incentives, student loan 
forgiveness, for the full range of forensic scientists. We need 
to attract the best and the brightest into these fields, and 
although things have gotten better, it is not happening enough.
    Senator Blumenthal. Well, my time has expired. I will be 
submitting a number of questions for the record and hope that 
perhaps you can answer them in writing.
    But I really do appreciate your being here. This area is 
enormously important.
    And one of the questions I am going to be submitting is 
whether there ought to be a Federal agency--and I know that the 
chairman has asked this question--a Federal agency that 
oversees the creation of standards and application of 
forensics. And what drives innovation? A separate question, 
what drives innovation in this field of forensics? And whether 
there is a need for public funding in this area.
    So thank you very much.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Blumenthal.
    Senator Ayotte, can I make one little peep----
    Senator Ayotte. Of course.
    The Chairman.--and then call right on you?
    Senator Ayotte. You can peep.
    [Laughter.]
    The Chairman. All right, here is my little peep.
    This sort of reminds me of our 4-year, totally unsuccessful 
to this point, but ultimately it will be, trying to sort out 
cybersecurity. And cybersecurity has long since displaced al 
Qaeda as our number one national security threat, et cetera, et 
cetera, et cetera. It is overwhelming. As the FBI director 
said, it is the greatest transfer of wealth in the history of 
the world, as people clean out all of our bank files and 
information files.
    Anyway, one of the things that is agreed on, although the 
approach to it is not yet agreed on, is that there has to be a 
private-public partnership in which NIST encourages and is the 
enabler, not the decider, but enables, encourages people to 
come together.
    Because, as it turns out, a lot of the major companies that 
are getting clobbered by hacking don't do anything about it 
because they don't want it known because it might, you know, 
affect their stock position or whatever. And it is terribly 
serious. And we go back and forth, and it becomes almost a 
little bit, you know, ideology. And it shouldn't be.
    I do think there is generally agreement that NIST, which as 
you say, Doctor, is this extraordinarily brilliant and 
misunderstood Federal agency, that there is a feeling that they 
should be the ones who convene, enable the public and the 
private to get together to figure out what are the best ways to 
put up walls of protection to secure their patents and 
everything else. And as they put up walls, others will put up 
higher walls, and then higher and higher you go.
    But there has to be a system for that, and somebody has to 
decide what is a proper standard that somebody needs to meet to 
say that--and this gets into liability and all kinds of other 
questions. But it is tricky stuff, but it is desperately 
important, and we are not grappling with it. And that is 
frustrating to me, and I am sure it is to my two colleagues 
here also.
    So, I mean, there is a lot of stuff here where you get down 
to, what is a basic standard, what constitutes a basic 
standard? How much does one adhere to something called science?
    And, with that, I will be quiet and turn to Senator Ayotte.

                STATEMENT OF HON. KELLY AYOTTE, 
                U.S. SENATOR FROM NEW HAMPSHIRE

    Senator Ayotte. Thank you, Mr. Chairman.
    I want to thank the witnesses for being here.
    I was a murder prosecutor. And, Mr. Bromwich, I know you 
are a former prosecutor. The issue of forensics is very 
important to the strength of any case, and the validity of 
forensics is incredibly important to the integrity of the 
justice system in terms of determining whether a charge will be 
brought and for providing information to juries so they can 
decide on the guilt or innocence of individuals.
    I certainly, having been a prosecutor, want the juries to 
focus on the facts of the case. And there is always a lot of 
time, there can be a lot of time spent, obviously, on cross-
examination on issues like certification.
    I had a case where it was a very high profile murder case, 
and I had to defend our lab because they were in certification 
process but they hadn't completed it. They were going through 
the ASCLD certification but just hadn't completed it. And they 
now have completed it, and I am very proud of our laboratory.
    So I fully appreciate the importance of certification in 
the context of even why good laboratories want to voluntarily 
undertake it.
    In the context of thinking about developing national 
standards, you know, help me understand, do you think that 
mandatory certification would be more effective? Is there now 
also an incentive for voluntary certification?
    And the one thing that I am hearing, that, you know, we 
talked to my laboratory director about it, and I am very 
conscious about this, is that if we impose unfunded mandates on 
the states on this issue, that we could actually diminish 
resources that they need in other capacities in the criminal 
justice system. And I think that is a big challenge.
    So I wanted to get your thoughts on those issues, and 
anyone else who would like to comment. Because this idea of 
hurting the justice system by imposing requirements that we are 
not going to back up here, where we are saying it is the 
national standard and you have to do it, and then they don't 
have the resources allocated and we don't give them resources.
    So resources are always an issue in all of these cases, as 
you know. They temper what we are able to prosecute. They 
temper what cases we are able to investigate and the choices 
that we have to make in cases.
    So I will leave that to you, Mr. Bromwich.
    Mr. Bromwich. Senator, it is a big problem, and it is a 
fair question. I think unfunded mandates in this area are 
particularly tricky and dangerous given the chronic 
underfunding of crime labs generally. So I think that is 
something we need to worry about.
    I am in favor of building up the standards through, among 
other things, the creation of a National Forensic Science 
Commission that we have been discussing a little bit here 
today. I do think there is a problem, and we discussed this 
back and forth before you got here, about the risk of having 
different standards and, in effect, different science applied 
in different jurisdictions. I don't think anybody wants that. 
That is not a desirable thing to have.
    And I think it is in everyone's interest to have 
certification, to have proficiency training, to have 
accreditation. I think voluntary accreditation has improved 
things. No one should view a lab that is accredited as one that 
is going to be guaranteed to be free of problems. That is not 
what anybody who is part of the lab accreditation process will 
ever argue.
    But I think it is in everyone's interest to continue to 
build up the scientific basis of the disciplines that forensic 
scientists use in a laboratory and testify about in court. That 
is what I understand the chairman has been trying to do through 
his legislation introduced last session and that he is going to 
introduce again.
    It is harder for forensic scientists than it used to be, 
but that is not a bad thing. When I was a prosecutor a very 
long time ago, we received the information the forensic 
scientists gave us as words from God. And the information that 
was conveyed in reports and testimony was never challenged, 
ever, even when it should have been. And I did some 
investigations, including one in Houston, where the entire 
criminal defense bar admitted that it just collectively lay 
down and never challenged unfounded, unscientific testimony 
that forensic experts were giving.
    So there are additional hardships now. The world of 
practicing criminal defense law is different because people 
realize that some of these techniques can and should be 
challenged. But I would argue that is a good thing, not a bad 
thing.
    Senator Ayotte. I agree with that. I mean, I think that is 
why we have the Daubert standard, that is why we have vigorous 
cross-examination.
    It is just trying to figure out where--when I served as 
Attorney General, and then before that being a murder 
prosecutor, I mean, I was constantly dealing with my lab on the 
issues of resources as a policymaker, not as a prosecutor but 
as a policymaker, of how do I get the resources that this lab 
really needs?
    I am a strong fan of my lab. They voluntary undertook 
ASCLD. They have very high standards. I think that they have 
integrity, and that is important to the lab. But, that said, it 
is always a resource challenge. And so what worries me a little 
bit is that we will do all these things in Washington, and then 
we will make that challenge even greater. So that is what 
concerns me.
    And so, I know my time is up, but if I could have just one 
minute?
    The Chairman. Sure.
    Senator Ayotte I just wanted to get your thoughts on this 
resource challenge and how it does impact the justice system 
and, really, how do we address it?
    Ms. Spriggs. I can speak to the resource challenge.
    One of the things we do agree on is mandatory 
accreditation. In the last probably 4 to 5 years, there is a 
new accreditation. It is called ISO 17025. They are 
international standards, the same standards that the automobile 
industry might use. They are not set by the crime laboratories. 
They are international standards.
    A lot of the laboratories have----
    Senator Ayotte. Yes, I am dating myself. I haven't been in 
the courtroom in a while, so----
    Ms. Spriggs. That is OK.
    A lot of the laboratories have volunteered to get 
accredited without the additional resources. So in order for a 
laboratory to be accredited, it is a few hundred thousand 
dollars per year.
    One of the things that helps us in accreditation and helps 
us is called Coverdell funding, which there is--it is 
authorized for $35 million. In the last few years, we have not 
even seen half of that money.
    Senator Ayotte. This funding was very important in my 
laboratory.
    Ms. Spriggs. Very important.
    Now, I can tell you from a state perspective, I can tell 
you from a local perspective. I came from a state agency that 
might get about--I had 450 employees and an $80 million budget 
that got about $400,000, $500,000 of that Coverdell funding. I 
am now at a local laboratory, where I only get $20,000 of that 
funding.
    But that $20,000 lets me send people so they can learn 
about new research, learn about and do training, go to 
conferences, helps with backlogs, helps with all of that. So 
even though it is a small amount for my local laboratory now, 
it really helps out.
    So when you look at the funding, we do need funding because 
we took existing funding so that we can get accredited with the 
ISO 17025 standards, which are the gold standard, if you want 
to call them, of accreditation. So, again, that Coverdell 
funding does help us.
    Mr. Tsin-A-Tsoi. Can I make a brief remark?
    The Chairman. Please.
    Mr. Tsin-A-Tsoi. Two brief remarks.
    First of all, I would like to say that certification, 
especially by ISO rules, is not the same as the scientific 
development that we are talking about. Many labs around the 
world are ISO-certified, but that has nothing to do with the 
fact that the science of forensics is not developed as it 
should be.
    The second remark I would like to make is that 
underfunding, ``underfunding,'' it is just a matter of 
perspective. The problem is that there is a supply and demand 
problem here. You have enormous demand, an increasing demand 
because of technological possibilities of forensic science at 
laboratories, and the supply, so the funds that are available 
for these labs, are not commensurate to the demand.
    And that is because of the way they are funded, not 
necessarily because of the size of the funding. What happens 
usually is that a lab gets a certain amount of money per year, 
for example, and is then supposed to do all the work that is 
sent to them for that amount, and that is not possible. Because 
for the person asking for the investigation of the lab, it is 
for free. Because the lab is there, so you just send in the 
DNA, and if you send in twice the total capacity of the lab, 
that is it. So then the lab is underfunded.
    So this is exactly the situation that we had at the NFI in 
the Netherlands. Our caseload grew in 10 years' time six-fold, 
but the funding didn't grow six-fold. At a certain point, we 
had to--well, this is what I meant in my speech, with a more 
businesslike approach to our customer relations. We made a 
service-level agreement with our customers which stipulates how 
much work we can do in what types of areas. And that helped a 
lot.
    And, of course, at the beginning this was difficult for the 
system as a whole, but in the end everybody is much happier 
now.
    Mr. Bromwich. This is not really an answer to your 
question, Senator, but I--I am sorry.
    Senator Ayotte. I just want to make sure it is OK----
    The Chairman. Oh, of course it is.
    Senator Ayotte. OK.
    Mr. Bromwich. I think it is both an amount of resources and 
also a predictability of resources.
    As you probably know from working with your lab, top lab 
managers spend way too much time trying to get grants to keep 
their labs going. And that time is taken away from actually 
managing their people in the lab.
    So I don't have an instant solution to the problem, but I 
just want to identify the problem, that it is both a volume of 
resources and it is a sustainability and predictability of 
resources so that the lab knows what it is going to have to 
allocate.
    Senator Ayotte. Thank you all. You are right.
    And thank you, Mr. Chairman.
    I think that is the challenge. They spend a lot of time 
trying to figure out where the next funding source, Federal or 
otherwise, is going to come from.
    Thank you.
    The Chairman. Senator Blumenthal?
    Senator Blumenthal. I thank Senator Ayotte for her 
questions, also as a former prosecutor.
    Are there particular areas of forensic science that most 
trouble you, in terms of the reliability of testimony--
fingerprinting, obviously bullet analysis has proven 
problematic.
    If you could identify one, two, three areas that most 
trouble you in their use in the courtroom, what would they be?
    Mr. Bromwich. For me, hair.
    Senator Blumenthal. Hair.
    Mr. Bromwich. Paints and polymers. Other kinds of trace 
evidence.
    Dr. Schmunk. For the medical examiner community, I think it 
is clear that it is child abuse prosecutions, head injury and 
the science behind that diagnosis.
    Senator Blumenthal. Bruises and other physical evidence of 
head injury or other child abuse.
    Dr. Schmunk. And the hemorrhages in the eyes, the 
hemorrhages on the brain, and the tearing of the axons, which 
can be problematic, especially if the child survives in the 
hospital for some time.
    Ms. Spriggs. For me, it would be forensic digital evidence. 
And for that reason, because there are a lot of --in 
laboratories it is accredited, but outside of laboratories it 
is not accredited. There is no chain of custody, there are no 
policy and procedures, there are no technical review and 
administrative review of reports. So, for me, it would be 
digital evidence.
    Mr. Tsin-A-Tsoi. I concur with my colleagues.
    In general, perhaps, it is the areas in which the human 
being becomes the measuring instrument himself, operating from 
the database from in his brain that has not been published 
publicly, which means that every human being might have a 
different opinion.
    Senator Blumenthal. Well, again, I want to thank you all. 
Obviously, there is a lot of work to be done in this area.
    Again, my thanks to the Chairman.
    And thank you also to the excellent staff work that was 
done for this committee hearing. And I know that we received an 
excellent memo from the staff in preparation for it, so I want 
to thank them as well.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator.
    It has been a very interesting hearing. I am going to close 
with something from the book. And I didn't get to ask any of 
the questions that I wanted to ask.
    [Laughter.]
    The Chairman. But that is OK, because, I mean, this is a 
hard subject. And I will send those questions.
    But it is a hard subject, and it has to be broached, and it 
is not one which is easily discussed.
    But from page 23 of this book, that is, the ``Strengthening 
Forensic Science in the United States: A Path Forward,'' which 
was put out, the following is said. And this obviously I agree 
with, so understand that.
    ``Scientific and medical assessment conducted in forensic 
investigation should be independent of law enforcement efforts 
either to prosecute criminal suspects or even to determine 
whether a criminal act has indeed been committed. The best 
science is conducted in a scientific setting as opposed to a 
law enforcement setting. Because forensic scientists often are 
driven in their work by a need to answer a particular question 
related to the issues of a particular case, they sometimes feel 
pressure to sacrifice appropriate methodology for the sake of 
expediency.''
    That comports with some stuff that I have watched and 
looked at. It doesn't necessarily tell the story of anything in 
particular.
    I think this has been a very, very good hearing even though 
you are probably all somewhat aghast.
    [Laughter.]
    The Chairman. But so be it. It is an important subject. If 
it is hard to approach, then so be that. We have to continue at 
this, and we will.
    So I very much appreciate all of you being here.
    And this hearing is adjourned.
    [Whereupon, at 4:25 p.m., the hearing was adjourned.]
                            A P P E N D I X

Response to Written Questions Submitted by Hon. John D. Rockefeller IV 
                     to Dr. T. (Tjark) Tjin-A-Tsoi
    Question 1. The Netherlands Forensic Institute (NFI) not only 
serves law enforcement needs but also acts as a ``high-tech knowledge 
hub.'' Research and development are an integral part of its mission. 
How has NFI integrated research and development into its work?
    Answer. The essence of the business model of NFI, is that it 
considers itself to be an independent provider of forensic products and 
services to law enforcement (police, prosecution, magristrates) and all 
other relevant governmental and intergovernmental customers.
    In this approach innovation of products and services through 
research and development (R&D) is an integral part of the business 
model of the NFI. This is similar to the way private technology firms 
operate when they conduct R&D and innovate in order to create unique 
value for their customers.
    In other words, even though NFI is government owned and not-for-
profit, it has adopted some of the basic concepts and organizational 
structures from the private sector aiming at becoming a highly 
innovative and efficient provider of forensic products and services.
    Consequently, R&D within the NFI is managed in more or less the 
same way as it is in the private sector. R&D costs are part of the 
integral cost base of the product (groups).
    In some departments, there are dedicated R&D units. In other 
departments R&D is conducted part time by scientists that also do 
casework.
    Whenever possible, R&D projects are structured as ``co-creation'' 
projects, which means in essence that the customers are highly involved 
in order to make sure highly valuable innovations are created and 
wasteful expenditures are avoided.
    In the context of R&D the NFI has adopted an open innovation 
approach in which public private partnerships and consortia with 
academia have been developed.

    Question 2. The National Forensics Institute has been able to get 
rid of backlogs and even shorten the time needed to analyze evidence. 
Five years ago, its average delivery time was 140 days, while today it 
is about 13 days. What reforms were implemented to eliminate backlogs 
and long turnaround times?
    Answer. The measures that the Netherlands Forensic Institute (NFI) 
took to eliminate its backlog and reduce delivery times are described 
in detail in the whitepaper ``Trends, challenges and strategy in the 
forensic science sector'' by the NFI CEO Dr. T. Tjin-A-Tsoi.
    In essence there were three main developments:

   implementing a new business model which involved a more 
        businesslike approach towards are customers and ``negotiating'' 
        a Service Level Agreement with them;

   redesigning operational (production) processes in order to 
        make them more efficient and less time consuming;

   redirecting the R&D effort towards innovative technical 
        methods for faster delivery.

    To a certain extent all three developments involved changing the 
organizational culture. As this is always the most difficult thing to 
achieve, especially when the culture has been around for quite a 
while--like in the forensic community--strong commitment and strong 
leadership by senior management was essential.
    No additional funds were made available to the NFI in order to 
combat the backlogs.
    As experiences around the world--and economic theory--have shown, 
backlogs are an inevitable consequence of the technology driven growth 
in the demand for forensic services, combined with the way crime labs 
are usually funded. Most crime labs receive a fixed annual budget, 
without having agreements with its customers on the amount of forensic 
investigations that can be delivered, given those resources. The 
officers actually commissioning the forensic investigations are not 
aware of the costs of these investigations and have no idea which part 
of total capacity their investigation will consume. This problem can be 
solved in several ways, but a relatively low-impact method is to get 
all parties to agree to a service level agreement (SLA) and to put in 
place mechanisms to make sure supply and demand are not completely out 
of balance.

    Question 3. Thanks to the National Academies report on forensic 
science, we know that many forensic methods lack scientific reliability 
and may have unacceptably high error rates. To what extent can we trust 
the results of forensic tests that have not yet been rigorously and 
independently tested?
    Answer. It is difficult to make a general statement on this 
subject. When a solid scientific basis is lacking, quality and 
reliability may vary from one lab to another, and even from one 
practitioner to another. Subjective personal opinions of forensic 
examiners become a substitute for objective scientific knowledge based 
on empirical research. For decades these opinions went unquestioned. 
The supposed scientific authority of forensic practitioners became a 
source of pride for practitioners and a convenient instrument for law 
enforcement and courts.
    Police officers, prosecutors and even judges tend to push forensic 
practitioners to give clear ``yes or no'' answers, even when this is 
impossible. There are clear examples of cases and even whole forensic 
disciplines in which this tendency was accommodated, even though it 
cannot be justified scientifically.
    What is needed is empirical scientific research in order to create 
a solid scientific basis and scientific standards. However, this will 
require a different culture and structure in the forensic community. At 
the moment the forensic sector is highly fragmented and crime labs are 
often relatively small production units that do not have the resources 
to conduct R&D. Furthermore, crime labs are often part of police 
organisations and become infused with police culture, with its specific 
operational pressures. This is not necessarily conducive to independent 
scientific development.
    With this in mind, the NFI has developed a dedicated empirical 
science program with respect to `objective interpretation' within all 
its forensic disciplines.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Mark Warner to 
                       Dr. T. (Tjark) Tjin-A-Tsoi
    Question 1. Currently, public labs must re-check any forensic 
testing and results that are outsourced to private labs. However, the 
cost of analyzing DNA samples in private laboratories can be up to 50 
percent less than the cost of comparable analyses conducted by public 
laboratories, due to private investments in R&D to lower costs and 
remain competitive.
    Do you think that a partnership between public and private labs 
would be beneficial? Could it help to reduce pressure on public labs in 
instances when there is a higher demand for analysis? If you disagree, 
please explain why.
    Answer. It is questionable whether handling only the overflow of 
public labs is a viable business model for private labs, because the 
overflow is highly volatile. Private companies would probably require a 
more steady contractual relationship, which leads to the fundamental 
question whether forensic examinations are intrinsically a government 
activity. This is a political question. Nevertheless, it is possible to 
outsource some of the work to private labs and I see no reason why this 
should lead to poor quality, given the experience in other sectors in 
which quality control is essential. However, outsourcing to the private 
sector is not for free. An obvious alternative is to spend the same 
funds to increase the capacity of existing public labs, giving them 
more mass and thus capturing economies of scale. It is in that sense 
interesting that there is reluctance to work with demand driven funding 
structures (``pay for service'') in case of public labs, whereas there 
seems to be no problem when the same customer (law enforcement agency) 
works with private labs. In both cases public money is being spent.

    Question 2. If there is a partnership, should private labs have 
direct access to the Combined DNA Index System (CODIS)? If not, please 
explain why.
    Answer. Witness chose not to respond.

    Question 3. No data currently exists on private vs. public lab 
rates of error in analysis. Do you believe it would be beneficial to 
have an independent evaluation of this data? If not, please explain 
why.
    Answer. Witness chose not to respond.

    Question 4. All CODIS labs must be accredited and audited annually, 
and analysts are required to undergo semiannual professional testing--
However, this only applies to DNA analyses, not any other types of 
forensic analyses (ballistics testing, fingerprint testing, toxicology, 
etc.)
    One of the possible solutions would be to require accreditation and 
other types of quality control, such as proficiency testing of analysts 
and blind review or auditing of actual casework to be sure it satisfies 
defined standards.
    What is the best way to establish a consistent accreditation and 
quality control process? Should a Federal entity handle this work, 
rather than private entities? If not, please explain why.
    Answer. Witness chose not to respond.

    Question 5. Why hasn't voluntary accreditation by private entities 
involved proficiency testing of analysts or routine auditing of 
casework?
    Answer. Witness chose not to respond.

    Question 6. Should recipients of Federal funding be required to 
maintain quality controls, such as routine proficiency testing, blind 
review of casework, and certification that an independent entity will 
perform external investigations into possible misconduct? If not, 
please explain why not.
    Answer. Witness chose not to respond.

    Question 7. One of the key findings in the 2009 National Academies 
report--Strengthening Forensic Science in the U.S.: A Path Forward--
concluded that the forensic science community is hampered ``in the 
sense that it has only thin ties to an academic research base that 
could support the forensic science disciplines and fill knowledge 
gaps.'' The report also noted that ``adding more dollars and people to 
the enterprise might reduce case backlogs, but it will not address 
fundamental limitations in the capabilities of forensic science 
disciplines to discern valued information from crime scene evidence.''
    Further, the report concluded that ``funding for academic research 
is limited and requires law enforcement collaboration, which can 
inhibit the pursuit of more fundamental scientific questions essential 
to establishing the foundation of forensic science.'' Does the current 
Congressional approach address this problem sufficiently? Is there 
anything else we can do to reduce barriers and further forensic 
research?
    Answer. I agree with the statement that the forensic community is 
hampered in the sense that there is not enough scientific research and 
innovation, and that the community has only thin ties to an academic 
research base. However, before additional money is spent, I believe it 
is important to be clear about the root causes of the present 
situation.
    One root cause is the lack of supply and demand coordination, which 
has led to persistent backlog problems. Backlogs tend to drown out 
other activities, like R&D. All additional funds tend to be used to 
combat the backlog problem. Solving this problem is, therefore, a 
critical step towards solving other problems in the forensic community.
    Another root cause is the fragmentation of the forensic sector, in 
the sense that it consists of many, relatively small, and separate 
production units that operate for the benefit (and inside) of local 
police organizations and jurisdictions. These units lack the critical 
mass that is needed to conduct expensive R&D programs. Furthermore, the 
culture and specific operational pressures of police organizations are 
not necessarily the ideal organizational context for scientific 
development and innovation. Most government crime labs in the US, or 
indeed around the world, are relatively small and not independent 
organizations. This is certainly one of the root causes of the problem. 
(The Netherlands Forensic Institute is an independent government 
agency, which is definitely one of the main reasons why it has 
consistently been able to allocate substantial resources to R&D and 
innovation.)
    A third root cause is that crime labs that do want to use 
proprietary funds to invest in R&D often have to do this without 
financial contributions of other labs. The reason for this is that in 
the forensic sector it is more or less common practice, that scientific 
and technological results of proprietary R&D efforts are given away to 
other government labs free of charge. Although this may look like 
beneficial fraternal behavior between government entities, it actually 
leads to a dearth of R&D. There is no financial incentive to invest in 
R&D if all the financial risks are to be borne by the lab carrying out 
the R&D, while all the outcomes are shared free of charge. This type of 
free rider behavior is detrimental to R&D in the long run. R&D programs 
thus tend to become completely dependent on individual grants, which 
lack the continuity for persistent scientific development over a number 
of years or even decades.
    It is sometimes argued that the lack of R&D could be solved by 
creating a centralized system of R&D-oriented institutes, possibly 
universities or other research institutions. These would then perform 
most of the research, while the casework would be done by the existing 
system of local crime labs. The theory is that this research would 
subsequently 'diffuse' into the forensic system. There are reasons to 
be highly skeptical about this approach, as it would not address the 
aforementioned root causes. It would be similar to a world in which 
companies do not carry out R&D, but only use what universities and 
other research institutions come up with. Experience has shown that a 
severe disconnect is likely to arise between the central research 
institutes and the hundreds of separately managed production units 
doing all the case work. After all, even integrated technology 
companies often struggle to keep their R&D programs in line with the 
needs of the customers, or to implement innovations throughout the 
organization. If casework and R&D are separated, the probable outcome 
will be research that is very clever, but that not necessarily reflects 
what the customers want or need. In other words, there is a need for 
basic research that could partially be carried out by R&D-centers, but 
this cannot replace the need for customer oriented R&D by forensic 
service providers (crime labs) themselves. This means that the 
aforementioned root causes should be addressed.

    Question 8. When I was governor of Virginia, I ordered DNA testing 
on all cases in 2004 in which biological evidence was preserved, but no 
DNA testing was done because the technique was not available at the 
time. This review resulted in a number of exonerations and I am very 
proud of VA's role in securing the freedom of these innocent people. 
When the testing process was done, I was made aware of delays by the 
Virginia Department of Forensic Science in notifying individuals in 
whose cases the DNA did not match the evidence in their case file.
    What processes are in place to notify people when there is evidence 
of innocence? As we fund research on forensic science, if a technique 
like bite mark identification is found to be unreliable or if firearms 
identification testimony is found to be beyond the limits of science, 
what processes are in place in crime labs or elsewhere in the criminal 
justice system to make sure that people with relevant cases aren't kept 
in the dark?
    Answer. Witness chose not to respond.

    Question 9. Should Congress require states to submit data on crime 
lab backlogs as a requisite for receiving Federal grant funding? If 
not, please explain why.
    Answer. Witness chose not to respond.

    Question 10. Does the Bureau of Justice Statistics (BJS) survey of 
public crime labs require states to assess their backlogs? If not, 
would this be an appropriate requirement?
    Answer. Witness chose not to respond.
                                 ______
                                 
Response to Written Questions Submitted by Hon. John D. Rockefeller IV 
                         to Michael R. Bromwich
    Question 1. The National Academy of Sciences recommended that 
Congress create a new Federal agency to conduct rigorous, independent 
research and testing in the forensic sciences. If that isn't possible 
in the current budget climate, what other steps can Congress take to 
improve the science underpinning forensic techniques?
    Answer. If creating a new Federal agency is not possible, Congress 
can take other steps to ensure that the major steps identified by the 
National Academy of Sciences to improve the delivery of forensic 
science services are assigned to Federal agencies that have the 
relevant expertise. Basic and applied scientific research grants for 
forensic disciplines should be funded by the National Science 
Foundation (NSF), and measurement standards and other best practices 
and standards should be developed and established by the National 
Institute of Standards and Technology (NIST). The Department of Justice 
(DOJ) can and should play an important role in ensuring implementation 
of those best practices and standards, accreditation of laboratories, 
and certification of forensic practitioners. Adherence to established 
standards, practices, and quality measures can be tied to Federal 
grants supporting forensic science such as the Coverdell and DNA 
Backlog Reduction grants.

    Question 2. As a former Federal prosecutor, what advice and 
precautions would you give prosecutors who are using forensic evidence 
in trying cases?
    Answer. Prosecutors who makes use of forensic evidence in their 
cases should realize that such evidence can be a powerful tool to 
convict the guilty and exonerate the innocent. Because of its great 
power, forensic evidence should be analyzed critically by prosecutors 
and not accepted as revealed truth simply because an expert witness 
provides it. Too often, that has been the case in the past. We have 
seen too many cases in which passive prosecutors failed to make any 
inquiry at all into the factual and scientific bases of an expert's 
findings, which has led in many cases to flawed analysis, misleading 
testimony, and erroneous convictions. At a very basic level, 
prosecutors should make themselves aware of the very real issues 
associated with certain forensic disciplines, which have thus far not 
shown themselves able to conclusively link evidence to specific 
individuals, and which therefore limits the probative value of expert 
scientific testimony. Prosecutors should be wary about expert forensic 
testimony that relies on anecdotal experience to imply uniqueness--that 
is what many of the examiners did in the cases we reviewed in the 
Department of Justice Office of the Inspector General's investigation 
of the FBI Laboratory. http://www.justice.gov/oig/special/9704a/
index.htm. Furthermore, not only is it the duty of prosecutors to 
ensure that the experts they are proffering testify in ways that are 
fully scientifically defensible, but the prosecutor must also take care 
not to overstate the strength of forensic findings in arguments to the 
jury.
                                 ______
                                 
    Response to Written Question Submitted by Hon. Amy Klobuchar to 
                          Michael R. Bromwich
    Question. Whether it's the popularity of TV shows such as CSI or 
simply young people's interest in science and desire for public 
service, there has been an increasing awareness of Forensic Science as 
a career path. I've worked to encourage efforts to link employers with 
two and four year colleges to increase practical STEM training for 
workers. How would developing standards of accreditation for forensic 
training programs and degrees help make it easier for students to find 
work in the field and to improve the quality of our forensic labs?
    Answer. National standards would help ensure that forensic training 
programs and academic degree programs provide the education, training, 
experience, and technical skills to give forensic labs the personnel 
they need. Such standards would promote confidence that the personnel 
being hired are qualified to perform the work performed in those labs. 
Incoming employees who are the products of accredited forensic training 
programs would require less time to be spent at the outset of their 
employment on basic training. Graduates of such programs would offer 
improved technical skills for professional forensic practice, and would 
deepen the scientific resources of the laboratory. All that being said, 
the biggest problem facing aspiring forensic scientists is the budget 
crunch faced by virtually all public forensic labs.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Mark Warner to 
                          Michael R. Bromwich
    Question 1. Currently, public labs must re-check any forensic 
testing and results that are outsourced to private labs. However, the 
cost of analyzing DNA samples in private laboratories can be up to 50 
percent less than the cost of comparable analyses conducted by public 
laboratories, due to private investments in R&D to lower costs and 
remain competitive.
    Do you think that a partnership between public and private labs 
would be beneficial? Could it help to reduce pressure on public labs in 
instances when there is a higher demand for analysis? If you disagree, 
please explain why.
    Answer. Partnerships between public and private labs could result 
in an improvement in service to the criminal justice system. Private 
labs could help alleviate backlogs for public laboratories, and well-
funded private labs may have more sophisticated equipment and deeper 
scientific resources. A public-private partnership could allow the 
public labs to take advantage of equipment, training, and other 
intellectual resources the private laboratory can offer. I should add 
that I view such a partnership as a necessary evil rather than a 
desirable state of affairs. I think forensic analysis conducted in 
local, state and Federal criminal justice systems is an inherently 
governmental function--indeed a core function of government. It is 
shameful that our criminal justice system should have to rely on 
private resources of any kind to support inherent governmental 
functions, but unfortunately this has become a necessity in some 
jurisdictions.

    Question 2. If there is a partnership, should private labs have 
direct access to the Combined DNA Index System (CODIS)? If not, please 
explain why.
    Answer. I do not know enough about the merits of the issue to offer 
an informed opinion.

    Question 3. No data currently exists on private vs. public lab 
rates of error in analysis. Do you believe it would be beneficial to 
have an independent evaluation of this data? If not, please explain 
why.
    Answer. I am not sure what purpose would be served by collecting 
such data. I assume it would show that better funded private 
laboratories, with more skilled, more highly compensated personnel, 
better equipment, and better training, make fewer errors. Those would 
be a wholly unsurprising result. It would simply underscore the need to 
provide better funding for public laboratories, not that we would be 
better off offloading more forensic analysis to private labs.

    Question 4. All CODIS labs must be accredited and audited annually, 
and analysts are required to undergo semiannual professional testing--
However, this only applies to DNA analyses, not any other types of 
forensic analyses (ballistics testing, fingerprint testing, toxicology, 
etc.)
    One of the possible solutions would be to require accreditation and 
other types of quality control, such as proficiency testing of analysts 
and blind review or auditing of actual casework to be sure it satisfies 
defined standards.
    What is the best way to establish a consistent accreditation and 
quality control process? Should a Federal entity handle this work, 
rather than private entities? If not, please explain why.
    Answer. The National Institute of Standards and Technology (NIST) 
is a Federal agency that can play an important role in establishing a 
consistent accreditation and quality control process that harmonizes 
the practice of laboratories across the country. To promote uniformity 
and adherence to the highest standards, NIST should play a coordinating 
and standards development role.

    Question 5. Why hasn't voluntary accreditation by private entities 
involved proficiency testing of analysts or routine auditing of 
casework?
    Answer. Voluntary accreditation of forensic laboratories by private 
entities does involve requirements for the administration of 
proficiency testing and auditing of casework, but there is much room 
for improvement. Most forensic practitioners do not need to complete an 
external proficiency test on an annual basis. Forensic proficiency 
tests can be improved by double-blind administration and should be 
designed to mirror casework as much as possible. Casework is audited 
during accreditation on-site surveillance visits, but analysts are 
allowed in many cases to select files for the auditors to review. To 
improve audits of casework, casework should be selected by the auditor 
at random and at least some surveillance visits should take place 
unannounced.

    Question 6. Should recipients of Federal funding be required to 
maintain quality controls, such as routine proficiency testing, blind 
review of casework, and certification that an independent entity will 
perform external investigations into possible misconduct? If not, 
please explain why not.
    Answer. Maintaining quality controls, including those described in 
the question, should be a minimum standard for all forensic 
laboratories. Recipients of Federal funding should be required to meet 
these criteria, because the Federal Government should not aid and abet 
inferior and flawed forensic analysis. Currently, the Paul Coverdell 
Forensic Science Improvement Grants Program awards grants to states and 
units of local government to help improve the quality and timeliness of 
forensic science and medical examiner services. The Coverdell Grant 
program requires that a grant applicant certify that an external, 
independent entity is available to conduct investigations into 
allegations of serious negligence or misconduct.

    Question 7. One of the key findings in the 2009 National Academies 
report--Strengthening Forensic Science in the U.S.: A Path Forward--
concluded that the forensic science community is hampered ``in the 
sense that it has only thin ties to an academic research base that 
could support the forensic science disciplines and fill knowledge 
gaps.'' The report also noted that ``adding more dollars and people to 
the enterprise might reduce case backlogs, but it will not address 
fundamental limitations in the capabilities of forensic science 
disciplines to discern valued information from crime scene evidence.''
    Further, the report concluded that ``funding for academic research 
is limited and requires law enforcement collaboration, which can 
inhibit the pursuit of more fundamental scientific questions essential 
to establishing the foundation of forensic science.'' Does the current 
Congressional approach address this problem sufficiently? Is there 
anything else we can do to reduce barriers and further forensic 
research?
    Answer. Congress has an opportunity to expand academic research in 
forensic science and to raise the level of research in this field. To 
date, it has not done so. In the past, law enforcement entities, 
primarily the Department of Justice, have been the only agencies 
funding forensic science research. The interests of law enforcement may 
not always align with the most pressing research needs, including those 
that might call into question or undermine categories of forensic 
analysis widely used by prosecutors. By funding forensic science 
research through grants to science agencies such as the National 
Science Foundation (NSF), Congress can ensure that the highest 
scientific standards are met and that the research will be conducted 
independently.
    The concern that law enforcement backing could create barriers to 
conducting basic scientific research in the forensic sciences is real 
and is based on the history of forensic science funding. Congress could 
improve that system by ensuring that law enforcement agencies are not 
the sole arbiters of worthy forensic science research.

    Question 8. When I was governor of Virginia, I ordered DNA testing 
on all cases in 2004 in which biological evidence was preserved, but no 
DNA testing was done because the technique was not available at the 
time. This review resulted in a number of exonerations and I am very 
proud of VA's role in securing the freedom of these innocent people. 
When the testing process was done, I was made aware of delays by the 
Virginia Department of Forensic Science in notifying individuals in 
whose cases the DNA did not match the evidence in their case file.
    What processes are in place to notify people when there is evidence 
of innocence? As we fund research on forensic science, if a technique 
like bite mark identification is found to be unreliable or if firearms 
identification testimony is found to be beyond the limits of science, 
what processes are in place in crime labs or elsewhere in the criminal 
justice system to make sure that people with relevant cases aren't kept 
in the dark?
    Answer. At present, there are no model systems in place to notify 
defendants in those instances when negligence, misconduct, or flawed 
science is found to have affected criminal cases. The problem of 
defendant notification has multiple challenges: (1) Identification of 
defendants in whose cases the faulty evidence was involved, (2) 
Notification of affected defendants, who may or may not be in prison, 
and (3) Legal representation for those defendants, many of whom are 
indigent. The current FBI Hair Review has created an opportunity to 
address these fundamental and important issues and create processes for 
defendant notification. All states and localities should create a 
defendant notification system that clearly assigns participants in the 
criminal justice system appropriate roles and responsibilities. The 
lessons learned from the current FBI hair review and the many other 
state-level attempts to right the wrongs of faulty forensic analysis 
should provide a foundation for developing a coherent and effective 
defendant notification policy.

    Question 9. Should Congress require states to submit data on crime 
lab backlogs as a requisite for receiving Federal grant funding? If 
not, please explain why.
    Answer. Yes. Such data would be worthwhile, but for the data to be 
meaningful, a uniform definition of backlog would need to be employed. 
Without more, mere backlog numbers would not be particularly 
informative.
    Even more important than the backlog numbers themselves is an 
analysis of why some states experience substantial backlogs and others 
do not. By learning why backlogs occur in some jurisdictions but not in 
others, guidance could be provided to help state criminal justice 
systems manage their demand v. resource challenges.

    Question 10. Does the Bureau of Justice Statistics (BJS) survey of 
public crime labs require states to assess their backlogs? If not, 
would this be an appropriate requirement?
    Answer. In the 2009 Census of Publicly Funded Forensic Crime 
Laboratories,\1\ the BJS reports the numbers of backlogs, but not 
backlog numbers by state. Reporting the numbers of backlogged cases by 
state would provide members of Congress and state legislatures with 
important data that would be useful in making funding and policy 
decisions.
---------------------------------------------------------------------------
    \1\ See: http://www.bjs.gov/content/pub/pdf/cpffcl09.pdf (last 
accessed August 28, 2013)
---------------------------------------------------------------------------
                                 ______
                                 
Response to Written Questions Submitted by Hon. John D. Rockefeller IV 
                       to Dr. Gregory A. Schmunk
    Question 1. The National Academy of Sciences recommended that 
Congress create a new Federal agency to conduct rigorous, independent 
research and testing in the forensic sciences. If that isn't possible 
in the current budget climate, what other steps can Congress take to 
improve the science underpinning forensic techniques?
    Answer. The National Association of Medical Examiners (NAME) 
strongly supports the NAS recommendation for a new Federal agency 
(National Institute of Forensic Science-NIFS) to achieve these goals 
and sees it as the foundation for the remainder of the NRC 
recommendations. But NAME also recognizes that there might be 
impediments to establishing such a new agency at this time. If a new 
and independent agency is unattainable at present, NAME believes that 
the duties of such an agency should be placed, as a bridging step, into 
a new Office of Forensic Services (OFS) within an existing agency 
fulfilling the spirit of the NRC recommendations.
    An OFS could be established with relative structural independence 
from its parent agency. This is primarily achieved by placing the 
decision-making power in a committee of experts from the community, 
rather than the bureaucracy of the parent agency. Thus, if an OFS is 
placed within DOJ, the final decision-making should not be by the 
Attorney General. One strategy to accomplish this separation of power 
is to have advisory committees develop recommendations and an oversight 
committee accept or reject the recommendations--sending forward 
accepted recommendations, but sending rejected recommendations back to 
the advisory committee for revision. Although stakeholders such as 
prosecutors and law enforcement officials should have input into the 
process, the decision-making should be primarily from researchers and 
practitioners. NAME believes that NIST and the CDC have scientific 
expertise that would make their participation useful. NAME also 
believes that transparency and community input must be part of the 
regulatory oversight.
    Independence of research and testing is best accomplished through 
grants to independent academic institutions, rather than by Federal 
institutions themselves which might have conflicts of interest. Some 
grants could build ``Center'' type capacity in a few institutions in 
order to achieve a critical mass of investigators capable of 
multidisciplinary studies. However, other grants should go to academic 
institutions with an interest in building forensic science and forensic 
medicine research in collaboration with forensic practitioners.
    The NAS report outlines that one of the functions of NIFS is to 
establish and enforce best practices for forensic science 
professionals. In the arena of medico-legal death investigation, NAME 
has established Forensic Autopsy Performance Standards as well as an 
Inspection and Accreditation program that can be used for this purpose.
    NAME believes that an essential function of NIFS or an OFS would be 
to conduct periodic forensic science needs assessments at the federal, 
state, regional, and local levels in order to ensure optimal provision 
of resources to service providers. Such assessments should also 
consider research needs. The assessment results should be presented in 
a report.

    Question 2. According to a recent poll of National Association of 
Medical Examiners (NAME) members, 70 percent of medical examiners have 
been pressured to reach a particular conclusion. Is it this kind of 
political pressure that has prompted NAME to call for greater 
independence from law enforcement?
    Answer. NAME is strongly supportive of the independence of the 
Medicolegal Death Investigation system from the influence of law 
enforcement and other criminal justice agencies as was recommended by 
the NAS report. Pressures on forensic pathologists in the course of 
their duties can come from many other sources. Pressures may come from 
families who are upset that a ruling on manner of death is suicide. 
Pressures may come from government officials who may disagree with the 
medico-legal conclusions that are contrary to their interests. 
Prosecutorial bias is among the more important and pernicious concerns, 
and NAME believes that medico-legal death investigation offices should 
not be under law enforcement agencies, but rather should appear 
independent and be independent. NAME is, at the most basic level, 
supportive of a system which considers neutral, objective, and evidence 
based scientific data in reaching conclusions on cause and manner of 
death. As the popular television programs state, we simply need to 
``follow the evidence'' in reaching our conclusions. The public needs 
to be confident that our conclusions are based upon such evidence and 
are free of any conflict of interest. This may be most apparent in 
reaching conclusions in law enforcement-related or in-custody deaths, 
but a similar need to be free of conflict exists where the family may 
suffer distress or financial hardship (such as denial of insurance 
benefits) with determinations such as suicide. It should be kept in 
mind that all professional groups, including NAME, the American Medical 
Association, the College of American Pathologists, and the American 
Society of Clinical Pathologists to name a few, strongly consider that 
the determination of cause and manner of death is a medical decision, 
to be decided by medical professionals. In the medico-legal environment 
these determinations should be the realm of Forensic Pathologists and 
Medical Examiners. In the same way that no person would ever conceive 
of delegating their clinical diagnosis and medical care to someone 
other than a professional specifically trained in the medical field 
that was relevant to their illness or injury, so should political 
entities and the public demand and be assured that a medical 
professional specifically trained in forensic medicine and the 
determination of cause and manner of death is making the medico-legal 
diagnoses and determinations of cause and manner of death. NAME 
believes that all medico-legal death investigative offices should be 
headed by a forensic pathologist, rather than by coroners or 
administrators which have a greater propensity to politicization and 
significantly lesser backgrounds in science and forensic medicine.

    Question 3. Thanks to the National Academies report on forensic 
science, we know that many forensic methods lack scientific reliability 
and may have unacceptably high error rates. To what extent can we trust 
the results of forensic tests that have not yet been rigorously and 
independently tested?
    Answer. Research is the platform upon which all of forensic science 
stands. NAME strongly supports increased basic science and applied 
research. Research provides the answer to the question of error rates. 
Additional research must be undertaken to refine the practice of 
forensic pathology, including better understanding of the error rates 
applicable to this discipline. With this goal in mind, it is important 
to foster and support increased collaboration between the many 
practitioners of forensic pathology, largely based in states and 
counties, with researchers based in academic programs. Academic centers 
have research assets including trained investigators, laboratories, and 
administrative and compliance support for sponsored projects. However, 
these academic institutions oftentimes need practicing forensic 
scientists and pathologists who can ensure that research projects are 
focused on relevant questions and participate in multidisciplinary 
approaches to complex forensic issues.
                                 ______
                                 
    Response to Written Question Submitted by Hon. Amy Klobuchar to 
                         Dr. Gregory A. Schmunk
    Question. Whether it's the popularity of TV shows such as CSI or 
simply young people's interest in science and desire for public 
service, there has been an increasing awareness of Forensic Science as 
a career path. I've worked to encourage efforts to link employers with 
two and four year colleges to increase practical STEM training for 
workers. How would developing standards of accreditation for forensic 
training programs and degrees help make it easier for students to find 
work in the field and to improve the quality of our forensic labs?
    Answer. There is currently a national shortage of forensic 
pathologists as identified in the recent report, ``Increasing the 
Supply of Forensic Pathologists in the United States: A Report and 
Recommendations'', from the National Institute of Justice sponsored 
Scientific Working Group for Medicolegal Death Investigation (SWGMDI). 
We are simply not graduating enough forensic pathologists to meet the 
needs of the country, especially if it is the desire of the Federal 
Government to improve the overall quality of forensic pathology 
services in the nation, and not just accept excellence in only some 
states and counties, leaving other elements of the population 
(frequently rural or sparsely populated areas) to endure substandard 
services. This shortage mirrors the more global issue of shortage in 
Graduate Medical Education positions as a whole in the country. Over 
500 medical school graduates were unable to find any residency program 
in the past year. Despite the existence of 113 medical schools in the 
U.S. there are only 37 accredited forensic pathology programs. Salaries 
for forensic pathologists and trainees are lower than for other 
disciplines in pathology, discouraging medical students from becoming 
forensic pathologists. Forensic pathology residency programs are the 
only subspecialty of medicine not subsidized by the Federal Government, 
as they are not hospital based. Increased funding of academic pathology 
residency programs could create partnerships with medical examiner 
offices to provide enhanced training and research opportunities for 
forensic pathology residents and address our national manpower shortage 
in this discipline. Training programs in forensic pathology need 
increased funding to supply the pathologists necessary for the Nation's 
work to be done.
    Forensic pathology has a long established program for certification 
and accreditation. The Accreditation Council for Graduate Medical 
Education (ACGME) has accredited forensic pathology training programs 
since 1982. This process replaced a previous accreditation program 
administered by the American Medical Association (AMA) Council on 
Medical Education in conjunction with the American Board of Pathology 
(ABP) which had been in place since 1961.
    The ABP has certified individual forensic pathologists since 1959. 
As physicians, all forensic pathologists are licensed and required to 
complete regular continuing education requirements to maintain their 
license. Additional requirements for Maintenance of Certification (MOC) 
have been instituted by the ABP in order to maintain subspecialty 
certifications.
    NAME has accredited Medicolegal Death Investigation offices since 
1974 and has had professional standards for autopsy performance since 
2005.
    The American Board of Medicolegal Death Investigation (ABMDI) has 
certified Medicolegal Death Investigators since 1998.
    These clear and well established paths to accreditation and 
certification exist in all aspects of Medicolegal Death Investigation 
and have been accepted for many years by the Federal Government. This 
represents an excellent model for what the Federal Government might 
wish to achieve with regard to accreditation and certification in other 
forensic science disciplines.
    However, major areas which still need to be addressed are 
developing a qualified pool of practitioners to enter the field 
including creating incentives for individuals to choose death 
investigation as a career, and creating incentives for state and county 
governments to ensure that their death investigation offices are 
accredited. Federal support as outlined in my presentation will assist 
in all of these areas.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Mark Warner to 
                         Dr. Gregory A. Schmunk
    Question 1. Currently, public labs must re-check any forensic 
testing and results that are outsourced to private labs. However, the 
cost of analyzing DNA samples in private laboratories can be up to 50 
percent less than the cost of comparable analyses conducted by public 
laboratories, due to private investments in R&D to lower costs and 
remain competitive.
    Do you think that a partnership between public and private labs 
would be beneficial? Could it help to reduce pressure on public labs in 
instances when there is a higher demand for analysis? If you disagree, 
please explain why.
    Answer. NAME feels that these questions are applicable to crime 
labs and therefore would defer remarks to experts in that field.

    Question 2. If there is a partnership, should private labs have 
direct access to the Combined DNA Index System (CODIS)? If not, please 
explain why.
    Answer. NAME feels that these questions are applicable to crime 
labs and therefore would defer remarks to experts in that field.

    Question 3. No data currently exists on private vs. public lab 
rates of error in analysis. Do you believe it would be beneficial to 
have an independent evaluation of this data? If not, please explain 
why.
    Answer. NAME feels that these questions are applicable to crime 
labs and therefore would defer remarks to experts in that field.

    Question 4. All CODIS labs must be accredited and audited annually, 
and analysts are required to undergo semiannual professional testing--
However, this only applies to DNA analyses, not any other types of 
forensic analyses (ballistics testing, fingerprint testing, toxicology, 
etc.)
    One of the possible solutions would be to require accreditation and 
other types of quality control, such as proficiency testing of analysts 
and blind review or auditing of actual casework to be sure it satisfies 
defined standards.
    What is the best way to establish a consistent accreditation and 
quality control process? Should a Federal entity handle this work, 
rather than private entities? If not, please explain why.
    Answer. NAME agrees that proper quality assurance (QA) programs are 
essential to ensuring that the product of laboratories is of the 
highest quality. NAME has incorporated multiple QA requirements into 
our Inspection and Accreditation process. The American Board of 
Pathology, state medical licensure boards and the American Board of 
Medicolegal Death Investigation all require documentation of continuing 
education on a regular basis. Proficiency testing is one component of 
quality assurance. The NAME Inspection and Accreditation standards 
require regular participation in established QA programs such as the 
American Society of Clinical Pathology (ASCP) Case Reports (formerly 
Check Sample) program. We also require review of casework via a defined 
process. NAME favors Federal funding being tied to documentation of 
ongoing QA programs.
    NAME also recognizes that oversight is essential within the medico-
legal death investigative system. A citizen must have a proper avenue 
by which to address complaints. Several states, such as Maryland, have 
procedures for appeal defined in state statute. This answer was more 
fully explored in the answer to Chairman Rockefeller's second question.

    Question 5. Why hasn't voluntary accreditation by private entities 
involved proficiency testing of analysts or routine auditing of 
casework?
    Answer. NAME agrees that proper quality assurance (QA) programs are 
essential to ensuring that the product of laboratories is of the 
highest quality. NAME has incorporated multiple QA requirements into 
our Inspection and Accreditation process. The American Board of 
Pathology, state medical licensure boards and the American Board of 
Medicolegal Death Investigation all require documentation of continuing 
education on a regular basis. Proficiency testing is one component of 
quality assurance. The NAME Inspection and Accreditation standards 
require regular participation in established QA programs such as the 
American Society of Clinical Pathology (ASCP) Case Reports (formerly 
Check Sample) program. We also require review of casework via a defined 
process. NAME favors Federal funding being tied to documentation of 
ongoing QA programs. NAME also recognizes that oversight is essential 
within the medico-legal death investigative system. A citizen must have 
a proper avenue by which to address complaints. Several states, such as 
Maryland, have procedures for appeal defined in state statute. This 
answer was more fully explored in the answer to Chairman Rockefeller's 
second question.

    Question 6. Should recipients of Federal funding be required to 
maintain quality controls, such as routine proficiency testing, blind 
review of casework, and certification that an independent entity will 
perform external investigations into possible misconduct? If not, 
please explain why not.
    Answer. NAME agrees that proper quality assurance (QA) programs are 
essential to ensuring that the product of laboratories is of the 
highest quality. NAME has incorporated multiple QA requirements into 
our Inspection and Accreditation process. The American Board of 
Pathology, state medical licensure boards and the American Board of 
Medicolegal Death Investigation all require documentation of continuing 
education on a regular basis. Proficiency testing is one component of 
quality assurance. The NAME Inspection and Accreditation standards 
require regular participation in established QA programs such as the 
American Society of Clinical Pathology (ASCP) Case Reports (formerly 
Check Sample) program. We also require review of casework via a defined 
process. NAME favors Federal funding being tied to documentation of 
ongoing QA programs. NAME also recognizes that oversight is essential 
within the medico-legal death investigative system. A citizen must have 
a proper avenue by which to address complaints. Several states, such as 
Maryland, have procedures for appeal defined in state statute. This 
answer was more fully explored in the answer to Chairman Rockefeller's 
second question.

    Question 7. One of the key findings in the 2009 National Academies 
report--Strengthening Forensic Science in the U.S.: A Path Forward--
concluded that the forensic science community is hampered ``in the 
sense that it has only thin ties to an academic research base that 
could support the forensic science disciplines and fill knowledge 
gaps.'' The report also noted that ``adding more dollars and people to 
the enterprise might reduce case backlogs, but it will not address 
fundamental limitations in the capabilities of forensic science 
disciplines to discern valued information from crime scene evidence.''
    Further, the report concluded that ``funding for academic research 
is limited and requires law enforcement collaboration, which can 
inhibit the pursuit of more fundamental scientific questions essential 
to establishing the foundation of forensic science.'' Does the current 
Congressional approach address this problem sufficiently? Is there 
anything else we can do to reduce barriers and further forensic 
research?
    Answer. NAME strongly advocates both basic and applied grant 
supported research in the forensic sciences. It is our impression that 
the CDC and NIJ do not adequately see forensic pathology as a 
discipline deserving basic research support. Furthermore, forensic 
pathology practitioners are not usually housed in academic 
institutions, and academic centers usually do not interact with their 
local forensic pathologists. It is important to bring these two groups 
together to foster research. Another logistical problem is that most 
forensic pathologists are fully occupied with their daily workload and 
do not have time for research projects. State and county agencies 
providing funding to medico-legal death investigation offices rarely 
perceive the value of research by forensic pathologists. CDC, NIJ, NIH 
and other Federal agencies should create mentoring, pilot and career 
development awards and grants to foster practitioner-based research.

    Question 8. When I was governor of Virginia, I ordered DNA testing 
on all cases in 2004 in which biological evidence was preserved, but no 
DNA testing was done because the technique was not available at the 
time. This review resulted in a number of exonerations and I am very 
proud of VA's role in securing the freedom of these innocent people. 
When the testing process was done, I was made aware of delays by the 
Virginia Department of Forensic Science in notifying individuals in 
whose cases the DNA did not match the evidence in their case file.
    What processes are in place to notify people when there is evidence 
of innocence? As we fund research on forensic science, if a technique 
like bite mark identification is found to be unreliable or if firearms 
identification testimony is found to be beyond the limits of science, 
what processes are in place in crime labs or elsewhere in the criminal 
justice system to make sure that people with relevant cases aren't kept 
in the dark?
    Answer. NAME agrees that procedures need to be in place to notify 
the proper individuals when new evidence arises in a case. Legislation 
should exist which would make it easier for practitioners to bring new 
information to the attention of the legal system and for the legal 
system to consider this new evidence. In the field of forensic 
pathology there can occasionally be a change in a case which could 
affect our interpretation and certification. The determination of 
manner of death may be based on the investigation and ancillary 
information gained by laboratory testing. The circumstances of a case 
are very important to our certification. If our knowledge of the 
circumstances change, such that the evidence no longer supports the 
manner of death as originally certified, a reconsideration of the 
manner may be required. Similarly, the practice of forensic pathology 
is based partly upon medical knowledge, which is constantly being 
reevaluated as medical science advances. New conditions may be 
discovered, or new clinical information may be disclosed at a later 
date which may influence the diagnosis, and thus the certification of 
cause or manner of death. It is important to accept that in light of 
new information reasonable people may appropriately change their mind 
and this process needs to be recognized by the legal system and courts 
to best serve the cause of justice.

    Question 9. Should Congress require states to submit data on crime 
lab backlogs as a requisite for receiving Federal grant funding? If 
not, please explain why.
    Answer. NAME supports requirements to address backlogs. Our current 
inspection and accreditation standards require that 90 percent of 
homicide cases are completed within 90 calendar days and 90 percent of 
all other cases be completed within 60 calendar days to be granted full 
NAME accreditation of an office or system. Our work to improve case 
turn-around-time would be aided by the establishment of similar 
standards for the toxicology labs which support our work. In many parts 
of the country families are unable to get autopsy reports death 
certificates in a timely manner due to months-years long delays in the 
receipt of toxicology testing.

    Question 10. Does the Bureau of Justice Statistics (BJS) survey of 
public crime labs require states to assess their backlogs? If not, 
would this be an appropriate requirement?
    Answer. This question is essentially directed at crime labs so NAME 
will not respond directly. The last BJS survey of medico-legal death 
investigation systems was conducted in 2002. A new and updated survey 
is long overdue and would be welcomed by the medico-legal death 
investigation community.
                                 ______
                                 
Response to Written Questions Submitted by Hon. John D. Rockefeller IV 
                            to Jill Spriggs
    Question 1. The National Academy of Sciences recommended that 
Congress create a new Federal agency to conduct rigorous, independent 
research and testing in the forensic sciences. If that isn't possible 
in the current budget climate, what other steps can Congress take to 
improve the science underpinning forensic techniques?
    Answer. (A) Make funding specific toward a need and the application 
of the science--The National Academy of Forensic Sciences report 
demonstrated a need for and the development of a practical approach to 
research in regards to forensic science but first a specific roadmap or 
needs assessment must be created from the perspective of the end-user 
so as to ensure that funding can be directed to specific needs. 
Research would be most effective by enhancing ongoing efforts with 
established partners, such as colleges, universities, the national 
laboratory system, Scientific Working Groups, etc. and other Federal 
agencies. In the past, laboratories had the luxury of performing their 
own research, publishing the research and/or presenting the research. 
No longer do most crime labs have the option of performing research, 
since most are focused on rising backlogs in such disciplines as 
controlled substances, toxicology and latent prints. Who better to take 
the research created by universities and apply it to forensic 
disciplines than the scientists already working in the crime labs? 
Unfortunately, until backlogs are reduced, this will not happen.
    (B) A Federal Repository is needed--Scientific Working Groups are 
an effective way of coordinating, managing and cataloging research 
efforts and a website should be created to perform as a repository of 
all research so that it is available for all to build on and utilize. 
This approach would help ensure research efforts are current and 
timely. We have already seen this call to action with Scientific 
Working Group for Firearms and Tool Marks (SWGGUN) and Scientific 
Working Group on Friction Ridge Analysis (SWGFAST). SWGFAST has always 
maintained that a significant body of constructive scientific research 
has already been conducted that addresses some of the concerns 
expressed in the National Academy of Sciences report.
    (C) A review of existing research must be conducted--Since the 
release of the National Academy of Sciences report, additional research 
has been ongoing throughout the world which addresses the science of 
friction ridge identification. Some of that research has been published 
and/or reported on to the community, while some remains in progress. In 
November 2011, SWGFAST provided a 64 page response to a request from 
the Research, Development, Testing & Evaluation Inter-Agency Working 
Group of the National Science and Technology Council, Committee on 
Science, Subcommittee on Forensic Science asking for an annotated 
bibliography of the literature supporting the friction ridge sciences. 
This report available at http://www.pdfdownload.org/pdf2html/
pdf2html.php?url=http%3A%2F%2Fswgfast.org%2
FResources%2F111117-ReplytoRDT%26E-FINAL.pdf&images=yes was prepared on 
behalf of SWGFAST by a dedicated task force established at the 
University of Lausanne (Forensic Science Department of the Faculty of 
Law and Criminal Justice) under the direction of SWGFAST member Dr. 
Christophe Champod. Included within the report are publications 
covering the areas of: underlying fingerprint characteristics, minutiae 
sample sufficiency, fingerprint quality, fingerprint matching, type I 
and type II error, probability, analyst consideration, and end to end 
process reliability.
    SWGGUN in their own regard compiled as part of the SWGGUN 
Admissibility Resource Kit (www.swggun.org) any research that has been 
performed to establish the validity of the forensic firearm and tool 
mark discipline. Numerous research projects have tested the fundamental 
propositions of the forensic firearm and tool mark discipline, 
resulting in the establishment and continued support of the AFTE Theory 
of Identification.
    In response to questions posed by the Subcommittee on Forensic 
Science's Research, Development, Testing & Evaluation Interagency 
Working Group (RDT&E IWG), the SWGGUN compiled a list of annotated 
bibliographies of the foundational research performed in the forensic 
firearms and tool marks discipline. The list is 47 pages in length, and 
can be found on the SWGGUN website. http://www
.swggun.org/swg/index.php?option=com_content&view=article&id=51:swggun-
responds-to-sofs-request&catid=13:other&Itemid=43
    The SWG groups could help facilitate the gathering, cataloging, 
storing, and disseminating existing research data, as well as research 
previously conducted and help in providing these materials to the 
community upon request and/or posting it on their specific website.

    Question 2. In your testimony, you raised a concern that applying 
Federal Advisory Committee Act (FACA) regulations to the National 
Commission on Forensic Science will ensure that representatives from 
state and local forensic science organizations ``do not have a voice in 
regards to any outcomes from the Commission.'' Given the Commission 
charter and the FACA provisions repeated below, can you further detail 
the reasoning behind this concern?
    Answer. Excerpt from the Charter of the DOJ National Commission on 
Forensic Justice

        12. Membership and Designation: . . . The Commission members 
        will be selected to achieve a balance of backgrounds, 
        experiences, viewpoints, and expertise in scientific, legal, 
        law enforcement, academic, and advocacy professions. Candidates 
        for membership from non-federal entities will be solicited 
        through the Federal Register and outreach to relevant 
        professional societies.

        Excerpt from the Federal Advisory Committee Act (5 U.S.C. App. 
        2.), as amended

        Sec. 10. Advisory committee procedures; meetings; notice, 
        publication in Federal Register; regulations; minutes; 
        certification; annual report; Federal officer or employee, 
        attendance

        (a)(1) Each advisory committee meeting shall be open to the 
        public.
        (2) Except when the President determines otherwise for reasons 
        of national security, timely notice of each such meeting shall 
        be published in the Federal Register, and the Administrator 
        shall prescribe regulations to provide for other types of 
        public notice to insure that all interested persons are 
        notified of such meeting prior thereto.
        (3) Interested persons shall be permitted to attend, appear 
        before, or file statements with any advisory committee, subject 
        to such reasonable rules or regulations as the Administrator 
        may prescribe.

    A few years ago, the National Science and Technology Council, 
Committee on Science conducted Interagency Working Groups (IWGs) via 
the Subcommittee on Forensic Science. The Subcommittee on Forensic 
Science was charged with the following tasks:

  1.  Develop a White Paper summarizing the Subcommittee on Forensic 
        Science's recommendation to achieve the goals of the NRC 
        report.

  2.  Create a prioritized national forensic science research agenda.

  3.  Draft a detailed strategy for developing and implementing common 
        interoperability standards to facilitate the appropriate 
        sharing of fingerprint data across technologies.

    The IWGs were composed of federal, state and local forensic 
scientists, researchers and attorneys. At the end of 2012, the National 
Science and Technology Council was supposed to release a list of 
recommendations aimed at the forensic science community regarding five 
categories:

   Accreditation and Certification

   Education, Ethics and Terminology

   Standards, Practices and Protocols

   Outreach and Communications

   Research, Development, Testing and Evaluation

    The forensic community has yet to see the release of these 
recommendations. Furthermore, the FACA provision was used as reasoning 
for the lack of communication throughout the forensic community in 
regards to the Interagency Working Groups (IWGs) and their development 
of these recommendations. Still to this day, the forensic community 
does not know the outcome of the information discussed or recommended 
as we near the completion of 2013.
    Since the hearing, the forensic community has been assured by 
National Institute of Science and Technology (NIST) that state and 
local crime labs will have a voice in regards to the outcome of 
standards set by the Commission and FACA rules will reply. One 
distinction should be pointed out. While state and local crime 
laboratory directors on the Commission will have a voice, they will not 
be able to vote on any of the recommendations of the Commission. In 
addition, any standards handed down by the Commission will apply only 
to the Federal crime laboratories we have been told. State and local 
crime laboratories can adhere to these standards as they see fit. But 
one must remember, DNA CODIS and latent fingerprint databases are 
overseen by Federal agencies and because of this--a trickle-down effect 
of the standards voted on by the Commission must be adhered to by state 
and local crime laboratories in order to receive Federal grants and 
effectively participate in using these databases to solve crime in 
their geographical backyards.

    Question 3. In raising concerns about new forensic science 
standards, your testimony seemed to express support for the ongoing 
Scientific Working Group (SWG) standard development process. However, 
as I mentioned during the hearing, Judge Harry Edwards, who co-chaired 
the panel responsible for the Strengthening Forensic Sciences report, 
has criticized the SWGs for being of questionable value in that they 
meet irregularly, lack membership standards, and generate vague, 
unenforceable guidelines without measuring progress against them. How 
would your organization respond to these criticisms? What elements of 
the SWGs is your organization most supportive of?
    Answer. On February 15, 2013 an announcement was made by the 
Department of Justice (DOJ) and National Institute of Standards and 
Technology (NIST) establishing a National Commission on Forensic 
Science that will consist of a thirty member ``commission'' as well as 
discipline specific ``guidance groups''. The guidance groups will 
develop and propose discipline specific recommendations, and the 
Commission will consider whether to endorse and recommend those 
guidelines and if they are to be implemented for use.
    The precursor groups to these ``guidance groups'' are twenty-one 
existing Scientific Working Groups (SWGs). SWGs (originally ``TWGs'') 
have been representing the rich and diverse array of the forensic 
sciences since TWGDAM (now SWGDAM) was formed in 1988. Since that time, 
the number of SWGS has grown in order to remain current with emerging 
disciplines and the constant evolution of forensic science. These SWGs 
have worked to standardize and advance the practices of their 
disciplines for more than twenty years; producing concrete results 
through the publication of hundreds of documents that provide clear 
recommendations and guidance in forensic science. The success of the 
SWGS' work is evident by citations in countless judicial proceedings. 
The SWGs are recognized by their international counterparts as leaders 
in the global forensic community as well as leaders in research and 
development.
    The criticisms of Judge Harry Edwards, who co-chaired the panel 
responsible for the Strengthening Forensic Sciences report, reflect 
information that was not complete and needs further discussion. The 
lack of information stems from the fact that the NAS Committee did not 
engage with ALL of the SWGs. Had they done so, they would have learned 
that the criticisms reflected in the report, while potentially valid 
for some SWGs, are not valid for the majority.
    Irregular meetings: It is a valid criticism that many SWGs meet 
irregularly. But SWGs that have had consistent funding do meet 
regularly and produce more standards and guideline documents than those 
who do not. It is clear that constant and consistent funding for each 
SWG is critical for their success. With the onset of sequestration, 
most SWGs have been adversely affected, having meetings reduced or 
cancelled. An oversight organization which operates all of the SWGs, 
and provides sufficient funding to support regular meetings by all 
SWGs, would adequately address this criticism.
    Membership standards: Well-run SWGs have clear bylaws which 
delineate such areas as membership requirements. The majority of the 
SWGs do have clearly delineated bylaws and membership standards. The 
creation of an oversight organization which operates all of the SWGs 
and could ensure that membership guidelines are established for all 
SWGs, would adequately address this criticism. Note, however, that the 
membership standards which may be appropriate for one SWG may not be so 
for all; therefore flexibility in developing these standards must exist 
to address the needs of each SWG.
    Unenforceable guidelines--The SWGs as currently formed exist within 
the forensic community and are well known by their practitioners. There 
is no regulatory force that is associated with them (including their 
creation). They were created by members of the forensic community to 
address recognized needs within their disciplines for best practices 
and guidelines. The SWGs have never been ``granted'' any authority to 
create or enforce these guidelines or standards by any official 
regulatory body. The guidelines produced are distributed to members of 
their respective forensic community to solicit feedback to make sure 
the guidelines are useful by all and appropriate for the discipline. It 
is the members of the forensic community that have supported and 
endorsed these guidelines.
    SWG documents have been cited in court proceedings and many SWGs 
keep track of how often their documents have been cited in court 
proceedings. The courts have been responsible in many cases of 
``enforcing'' the standards by recognizing the validity of individual 
SWG documents when accepting testimony. In addition, some SWGs have 
gone through the process of having their documents published under 
standards organizations such as ASTM. In the event that an oversight 
organization is created which operates all of the SWGs, and this 
organization be given some authority over implementation of those 
standards, then this criticism would also be addressed.
    The SWGs have long provided the necessary scientific guidance 
needed by the forensic community. If the needs of the SWG groups are 
met with consistent funding and administrative support, we are 
convinced that the concerns of the NAS report will be addressed. With 
the advent of a single funding and organizational body, all twenty-one 
current Scientific Working Groups--representing the breadth of forensic 
science--will be able to come together under one organization to 
continue their work advancing the forensic sciences. By uniting, there 
is clearly an opportunity for the SWGs to become even more successful 
and to continue to provide their community the necessary guidance for 
years to come.
```