U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

54–720 PDF 2010

S. HRG. 111–554 

STRENGTHENING FORENSIC SCIENCE IN THE 

UNITED STATES 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 9, 2009 

Serial No. J–111–43 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MATT MINER, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ................................................................................................... 80 

Franken, Hon. Al, A U.S. Senator from the State of Minnesota ......................... 4 

prepared statement .......................................................................................... 86 

Leahy, Hon. Patrick J., A U.S. Senator from the State of Vermont ................... 1 

prepared statement .......................................................................................... 120 

Sessions, Hon. Jeff, A U.S. Senator from the State of Alabama ......................... 3 

WITNESSES 

Buel, Eric, Laboratory Director, Vermont Forensic Laboratory, State of 

Vermont Department of Public Safety, Waterbury, Vermont .......................... 6 

Giannelli, Paul, Professor, Case Western Reserve University, Cleveland, Ohio 12 

Hurtt, Harold, Chief of Police, Huston Police Department, Houston, Texas ...... 10 

Matson, Barry, Deputy Director, Alabama District Attorneys Association, 

Chief Prosecutor, Alabama Computer Forensics Laboratories, Montgomery, 

Alabama ................................................................................................................ 14 

Neufeld, Peter, Co-Director, The Innocence Project, New York, New York ........ 8 

Redle, Matthew F., County and Prosecuting Attorney, Sheridan County, 

Sheridan, Wyoming .............................................................................................. 17 

QUESTIONS AND ANSWERS 

Responses of Eric Buel to questions submitted by Senator Specter .................... 34 

Responses of Paul Giannell to questions submitted by Senator Specter ............ 40 

Responses of Harold Hurtt to questions submitted by Senator Specter ............. 41 

Responses of Barry Matsor to questions submitted by Senator Specter ............. 43 

Responses of Peter Neufeld to questions submitted by Senator Specter ............ 44 

Responses of Matthew F. Redle to questions submitted by Senator Specter ..... 48 

SUBMISSIONS FOR THE RECORD 

Bohan, Thomas L., Peaks Island, Maine, statement ............................................ 54 

Buel, Eric, Laboratory Director, Vermont Forensic Laboratory, State of 

Vermont Department of Public Safety, Waterbury, Vermont, statement ....... 60 

Castelle, George, Chief Public Defender, Kanowha County, West Virginia, 

statement .............................................................................................................. 67 

Cole, Simon A, Associate Professor & Chair, Department of Criminology, 

University of California, Santa Barbara, California, statement ...................... 74 

Donohoe, Colonel W.F., Superintendent, West Virginia State Police, statement ...................................................................................................................... 77 

Findley, Keith A., President, University of Wisconsin, Madison Law School, 

Madison, Wisconsin, statement ........................................................................... 82 

Garrett, Brandon L., Associate Professor of Law, University of Virginia School 

of Law, Charlottesville, Virginia, statement ...................................................... 88 

Giannelli, Paul, Professor, Case Western Reserve University, Cleveland, Ohio, 

statement .............................................................................................................. 95 

Human Factors Consultants, Ralph Norman Haber, PH.D., and Lyn Haber, 

Ph.D., Partners Swall Meadows, California, statement ................................... 101 

Hurtt, Harold, Chief of Police, Huston Police Department, Houston, Texas, 

statement .............................................................................................................. 113 

Page

IV 

Matson, Barry, Deputy Director, Alabama District Attorneys Association, 

Chief Prosecutor, Alabama Computer Forensics Laboratories, Montgomery, 

Alabama, statement ............................................................................................. 122 

National Association of Criminal Defense Lawyers, Washington, DC, statement ...................................................................................................................... 141 

Neufeld, Peter, Co-Director, The Innocence Project, New York, New York, 

statement .............................................................................................................. 153 

Redle, Matthew F., County and Prosecuting Attorney, Sheridan County, 

Sheridan, Wyoming, statement ........................................................................... 166 

Rudin, Norah, Forensic Consultant, and Keith Inman, M. Crime, Senior 

Ferensic Scientist, Forensic Analytical Sciences, Inc and Assistant Professor, California State University, East Bay, Hayward, California, statement ...................................................................................................................... 177 

Saks, Michael J., Regents Professor, Sandra Day O’Connor College of Law, 

Arizona State University, Tempe, Arizona, statement ..................................... 183 

Shelton, Hilary, Director, NAACP Washington Bureau & Senior Vice President for Advocacy and Policy, Washington, DC, statement .............................. 195 

Sloan, Virginia E., President, Constitution Project, Washington, DC, statement ...................................................................................................................... 198 

ADDITIONAL SUBMISSIONS FOR THE RECORD 

Submissions for the record not printed due to voluminous nature, previously 

printed by an agency of the Federal Government, or other criteria determined by the Committee, list: 

Virginia Law Review, Volume 95, March 2009, Number 1 

(1) 

STRENGTHENING FORENSIC SCIENCE IN THE 

UNITED STATES 

WEDNESDAY, SEPTEMBER 9, 2009 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC 

The Committee met, pursuant to notice, at 10:10 a.m., Room 226, 

Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman 

of the Committee, presiding. 

Present: Senators Durbin, Whitehouse, Klobuchar, Franken, and 

Sessions. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning everybody. Please sit down. 

Please, I’m sorry. I was somewhat plagued getting in. I was just 

whispering to Senator Sessions that it can take well over an hour 

to go 10 miles, it seems like. A bit excessive, around here. 

Dr. Buel and I both live on dirt roads in the little town of Middlesex, and we measure our travel in minutes, even during rush 

hour. Rush hour means you sometimes have 5 to 10 cars every 10 

minutes or so. 

But on a more serious matter, in March this Committee began 

our examination of the serious problems in forensic science that go 

to the very heart of our criminal justice system. Both Senator Sessions and I used forensic science in our past lives as prosecutors. 

But today we’re going to hear from representatives of the professional communities that are going to have to work together to 

make advances to solve the problems. We know a lot of important 

work is done through forensics, and those who are with us should 

be proud of their good work. 

Scientific advancements can help prove that you have the guilty 

person. At the same time, it is equally important, it can help exonerate the innocent. We have to ensure that the forensic science 

rises to the highest scientific standards, has the maximum possible 

reliability. Unfortunately, since the report and testimony from the 

National Academy of Sciences earlier this year, we’ve heard more 

about the severity of the problem. 

The current issue of The New Yorker includes an article that 

presents strong evidence that in 2004, what we would all consider 

the unthinkable happened: an innocent man may have been executed for a crime he did not commit, based in large part on forensic 

testimony and evidence. 

2 

The Committee will soon turn to reauthorizing and strengthening the Innocence Protection Act, and that provides very important tools, passed by bipartisan majorities in the Congress, to prevent that kind of tragedy. 

The key point for today’s hearing is that the prosecution of Cameron Todd Willingham, discussed in The New Yorker article, rested 

largely on forensic evidence—in that case, burn analysis—that may 

not have had any scientific basis. Our criminal justice system, particularly the most serious cases, have to be based on facts. 

Also, the Supreme Court held in the case of Melendez-Diaz v. 

Massachusetts that forensic examiners must present evidence in 

court, be subject to cross-examination, rather than simply submitting reports of their findings. Again, that’s something I did as a 

routine matter as a prosecutor 35 years ago. The Supreme Court 

holding stems from a recognition that forensic findings may not always be as reliable as we would hope or as they might appear. 

You know, many have the image from the television shows like 

‘‘CSI’’ that forensic scientists get to review crime scene evidence in 

sleek, ultra-modern, state-of-the-art laboratories. Well, those of you 

who are experts know that is not always the case, by any means. 

In fact, the so-called ‘‘CSI effect’’ may be doing harm by suggesting 

that forensic science is well-funded, and that their results are almost always infallible. 

As it turns out, that’s not the reality examined by the National 

Academy of Sciences. According to the latest available statistics 

from the Justice Department in 2005, the backlog of forensic exams 

was more than 350,000—the backlog—nationwide, up 24 percent 

from 3 years ago. 

One out of every five labs does not meet the standards for accreditation set by the American Society of Crime Lab Directors. As the 

National Academy of Sciences report makes clear, we can’t allow 

such nationwide deficiencies in forensic sciences to continue. I 

think it’s critically important to our criminal justice system that we 

have accurate, timely forensic science so we can find and punish 

the guilty, but also exonerate the innocent. 

What helps is when we take perpetrators of serious crimes off 

the streets. It doesn’t help if we took the wrong person off the 

street because the criminal is still out there. We can’t wait for the 

backlogs to get worse or the next scandal to take place. I’m looking 

forward to working with Senator Sessions, Senator Klobuchar, and 

other interested members of this Committee to find solutions to 

this. 

Now, we’re going to hear testimony from Dr. Eric Buel, as I mentioned. He is the respected director of the Vermont Forensic Laboratory, someone who has the respect of both the prosecution and 

defense. Vermont’s lab has done consistently excellent work and it’s 

helped to solve many important cases. Dr. Buel nonetheless, recognizes the need for more standards, more research, more funding. 

I’m glad to welcome back to the Committee Peter Neufeld. Mr. 

Neufeld has worked with us. He’s the co-director of The Innocence 

Project, and he’s worked with us for years in this Committee. His 

work on individual cases and bringing important changes to the 

law has been very, very helpful. 

3 

I look forward to the insights of fellow prosecutors and law enforcement officers who are on the front line every day. The report 

issued by the National Academy of Sciences is detailed and farreaching and can provide a foundation for broad consensus for 

change. It calls for mandating national standards for enforcing best 

practices and points to a need for standards for the certification of 

individual examiners, accreditation of their laboratories, and the 

assets to invest in the research underlying modern forensic 

sciences. 

Now, there are areas of significant controversy, including the report’s recommendation of another major new government agency 

and for the total separation of forensics and law enforcement. 

There will be disagreement on that, but I hope we can find the 

areas that we all agree on. So, I hope we can work together toward 

strengthening our forensic system, rooted in science. 

With that, I’ll put the rest of my statement in the record. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Chairman LEAHY. Senator Sessions. 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Thank you, Mr. Chairman. Forensic sciences 

in America does present a challenge, in my view. It’s something 

that I have felt strongly about for many, many years. If you look 

at the criminal justice system as a comprehensive whole and you 

ask yourself, are there bottlenecks in this system that are causing 

difficulties, I think you would say that the forensic sciences are 

being shortchanged financially and we can do better. 

I have believed that for some time. You consider huge sheriffs’ 

departments, huge police departments, probation departments, judicial centers, prison systems, the amount of money going to that 

decisive entity, the forensic scientist who can make the difference 

in a case being ready to go to trial and being tried fairly and objectively and can be really adverse to the whole criminal justice system. So, I worry about that. 

As a prosecutor and one who felt that trials were too much delayed, I conducted research of it as Attorney General of Alabama 

and concluded one of the biggest things that was delaying justice 

in America is getting your forensic sciences reports completed in an 

effectively and timely way. Prosecutors have a slam-dunk cocaine 

case, the person is tape recorded, but months go by before somebody comes back and says the powder is cocaine. 

Now, maybe there are more complicated drugs, pills and that 

kind of thing that need to be analyzed before the case can go forward. Some prosecutors will use testimony to go forward with an 

indictment. Some will not return an indictment until they’ve received that information. Some cases cannot go forward based on 

fingerprints, based on lack of fingerprints or lack of ballistics or 

DNA evidence that needs to be promptly produced. 

So if you look at the entire criminal justice system, I think you 

could say that more innocent people could have a cloud removed 

from them and not be charged. More guilty people could be charged 

4 

and proceed forward to justice and get their just desserts with a 

more effective forensic system in America. 

The Commission report has some good recommendations. I don’t 

accept the idea that they seem to suggest that fingerprints is not 

a proven technology. I don’t accept some of the other forensics that 

are not scientific well-based. For example, the Commission strongly 

praises the scientific analysis that has gone behind DNA and suggests that should be done more comprehensively in other areas, 

and perhaps it should. 

Perhaps it should, Mr. Chairman. Maybe we can tighten that up 

and have some sort of better scientific basis for fingerprints and 

other analysis. But I don’t think we should suggest that those proven scientific principles that we’ve been using for decades are somehow uncertain and leaving prosecutors having to fend off challenges on the most basic issues in a trial. 

So, tens of thousands of people, I suggest, are not being promptly 

tried. While they’re out on bail or un-indicted, they’re committing 

crimes this very moment. A lot of that is because we’ve not invested enough in our forensic sciences so that we can get accurate 

and prompt reports. I believe it’s a very important issue, Mr. 

Chairman. Thank you for having this hearing. I believe the Commission kicked off a national discussion, and maybe we can make 

some progress. I certainly hope so. 

Chairman LEAHY. Well, thank you, Senator Sessions. You and I 

have worked on these issues for years, and I think this is an important thing. 

Senator Feingold has a statement to place in the record. 

[The prepared statement of Senator Feingold appears as a submission for the record.] 

Chairman LEAHY. Did you want to—— 

Senator FRANKEN. Yes. I have a statement, Mr. Chairman. 

Chairman LEAHY. Go ahead. 

STATEMENT OF HON. AL FRANKEN, A U.S. SENATOR FROM 

THE STATE OF MINNESOTA 

Senator FRANKEN. Okay. Thank you. Thank you, Mr. Chairman, 

for holding this incredibly important hearing. 

We incarcerate more people than any other industrialized nation—in fact, we incarcerate more people than any nation, period. 

We have 2.3 million prisoners behind bars. Compare that to China, 

which has four times our population but only—only 1.6 million 

prisoners. We also have the world’s highest incarceration rate, 

more than five times higher than the world’s median rate; even 

though we have 5 percent of the world’s population, we have 25 

percent of its inmates. 

These are worrying figures for any country, let alone the world’s 

leading democracy. But they are especially troubling when we consider that the forensic techniques used to prosecute and convict 

many of these individuals have come under serious question. Earlier this year, pursuant to a congressional mandate, the National 

Academy of Sciences released a report evaluating the scientific integrity of the forensic techniques used daily in thousands of crime 

labs around the country, including DNA analysis, fingerprinting, 

firearms identification, and hair/fiber analysis. 

5 

The report which was published after 2 years of research and review had a damning conclusion, which I will restate here. It concluded that, ‘‘With the exception of nuclear DNA analysis, no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source. The 

fact is that many forensic tests have never been exposed to stringent scientific scrutiny.’’ 

For example, the National Academy’s report revealed that there 

is currently no objective uniform method of fingerprint analysis or 

standard for fingerprint identification. In fact, in the United States 

the standard for identification, how many points match between 

two prints, ‘‘has been deliberatively kept subjective’’ to allow for 

maximum flexibility by the examiner. This means that one examiner can require just 6 points for comparison before declaring a 

match, while another can require 14 points. 

Bad forensic techniques result in false convictions. That’s obvious. In a review of 242 DNA exonerations, The Innocence Project 

found that a large number of the cases involved invalidated or improper forensic science. The number of false convictions is surely 

higher, however, since 90 percent of criminal cases actually do not 

involve biological evidence that can irrefutably exonerate someone 

through DNA testing. 

What is less obvious is that bad forensics keeps the real criminals on the streets. Of the 242 DNA post-conviction exonerations 

nationwide, the real perpetrators were identified in 105 cases. In 

those 105 cases, while innocent people were in jail, the real perpetrators committed, and were convicted of, 90 serious violent offenses, including 56 rapes and 19 murders. False convictions are a 

threat and tragedy, both for the innocent and for every law-abiding 

citizen in the Nation. 

In 2006, Supreme Court Justice Antonin Scalia declared that 

‘‘there has not been a single case, not one, in which it is clear that 

a person was executed for a crime he did not commit. If such an 

event had occurred in recent years, we would not have to hunt for 

it. The innocent’s name would be shouted from the rooftops.’’ Sadly, 

that day has come after the execution of Cameron Todd 

Willingham. It’s being shouted from the rooftops today, this week, 

by The New Yorker. 

The Fifth and Fourteenth Amendments guarantee that all Americans will not be deprived of life, liberty or property without due 

process of law. This due process right applies to States and it applies to the Federal Government. If it means anything, it means 

that the tools we use to determine innocence or guilt must be based 

on sound, rigorous science. Until we can be confident of that, I 

think we should ask ourselves whether it would be appropriate to 

impose a nationwide moratorium on the death penalty. Can we, as 

a law-abiding Nation, execute anyone without being 100 percent 

certain that they are guilty? Can we risk another Cameron Todd 

Willingham? 

I look forward to hearing from all the witnesses today. Thank 

you, Mr. Chairman. 

Chairman LEAHY. Thank you, Senator Franken. 

6 

The first witness is Dr. Eric Buel, current director of the 

Vermont Forensics Laboratory, a position he’s held for the last 11 

years. He has 30 years of experience analyzing forensic evidence for 

the State of Vermont and he is widely recognized for his expertise 

on forensic DNA analysis. In 1990, Dr. Buel established the 

Vermont DNA Analysis Program. 

He is a past board member of the American Society of Crime 

Laboratory Directors. He serves on the editorial review board of 

The Journal of Forensic Sciences and has published articles on forensic drug and DNA analysis. He received his bachelor’s degree 

from the University of Delaware and his Ph.D. in biochemistry 

from the University of Missouri at Kansas City. As I mentioned 

earlier, he lives in one of the prettiest towns of Vermont. 

Dr. Buel. Is your microphone on? 

STATEMENT OF DR. ERIC BUEL, LABORATORY DIRECTOR, 

VERMONT FORENSIC LABORATORY, STATE OF VERMONT 

DEPARTMENT OF PUBLIC SAFETY, WATERBURY, VT 

Dr. BUEL. I haven’t been here for a while, sir. 

Chairman LEAHY. We have changed a bit. 

Dr. BUEL. Yes. Technology. 

Good morning, Mr. Chairman, members of the Senate Judiciary. 

Thank you for the invitation to speak with you about how best to 

provide forensic science to the citizens of our great country. 

I have been in the field of forensic science for almost 30 years, 

the last 11 as a laboratory director. I am privileged and honored 

to speak with you about forensic science and how best to implement the recommendations in the National Academy of Sciences report. 

With your permission, Mr. Chairman, I’d like to read a statement 

into the record. 

Chairman LEAHY. Please. 

Dr. BUEL. Okay. Several years ago, I served as a board member 

for the American Society of Crime Lab Directors. A theme that I 

brought forward for consideration was a long-term goal for us and 

for society. That goal was for every crime victim to expect the highest level of forensic science services regardless of where in the 

United States he/she was victimized. Her case would not lie for 

months in a freezer awaiting examination, resources would be 

available to perform DNA profiling, and the DNA database would 

be current. Fingerprints recovered would not fade with time awaiting analysis, and the AFIS database would be fully supported and 

recently updated. 

The laboratory would have the resources to provide the type of 

services our citizens should have in their time of need. The resources necessary to make that desired reality have not been provided to the State and local crime labs. The Federal funds have 

flowed toward the reduction of backlogs in DNA, and although this 

assistance is appreciated and has done much good, crimes continue 

to go unsolved, citizens continue to be victimized as the backlogs 

in other forensic disciplines grow and leave cases unresolved. 

Mr. Chairman, we need to address the capacity in our crime lab 

system. We need to provide resolution to these cases. We need secure and stable funding. We need comprehensive forensic reform. 

7 

As you know, the National Academy of Sciences clearly recognized 

this and it provided numerous recommendations to reform and 

modernize our system. 

Let me briefly highlight just a couple of points detailed in the 

NAS report. Quality assurance is a critical component to ensure 

quality work. The forensic community has made great strides in 

this regard through the accreditation process. I agree with the findings of the NAS report that all laboratories performing forensic 

science must be accredited with certified staff. Accreditation and 

certification of both laboratories and individuals should be 

prioritized and funded to allow these activities to occur as soon as 

possible. 

There has been much discussion about forensic services that may 

require further research to address accuracy and reliability. Let me 

briefly describe a process that may assist us to find a path forward 

in that regard. 

During the early days of DNA analysis, there were many questions concerning how to apply this new science appropriately to forensic case work. Studies by the National Research Council culminated in two reports that offered recommendations and suggestions for DNA testing by the forensic community based on adherence to high-quality standards and uniform procedures. 

Through the work of the council and working groups, a pathway 

was created for the forensic DNA community to follow. The Federal 

Government recognized the need to fund this emerging science, and 

did so. This provided laboratories with the resources to properly 

train their scientists and purchase state-of-the-art instrumentation. 

These funds permitted laboratories to initiate programs, submit expectations, and has resulted in the implementation of what has become a very successful forensic program. 

This model could be replicated for the other disciplines with the 

proper resources from the Federal Government. Through a full vetting of the data, methods and procedures currently used by a discipline, appropriate procedures could be modified or additional 

standards applied if the research indicates the need for change. If 

further research is needed, Congress must fund this research to resolve unanswered questions. The committee members reviewing 

the science must include experts from both academia and the forensic community to allow a mutual exchange of ideas and understanding of the work that is performed. 

Through this collaborative effort, the success recognized by the 

DNA program could be realized by each forensic discipline. The National Academy of Sciences has identified the needs of the forensic 

community and we have an opportunity to make use of the report 

to make the necessary improvements in our science. I would recommend that Congress take appropriate steps to meet these challenges discussed in the report and to promote and provide the best 

possible science for our people. Thank you very much. 

Chairman LEAHY. Thank you very much, Doctor. Thank you for 

being here, as always. 

Peter Neufeld co-founded and co-directs The Innocence Project, 

an independent, nonprofit organization affiliated with the Benjamin N. Cardozo School of Law. He is also a partner in the civil 

rights law firm, Cochran, Neufeld and Scheck. For the last 12 

8 

years, he’s served on the New York State Commission on Forensic 

Science, which has responsibility for regulating all State and local 

crime laboratories in New York. He has co-authored several influential books on the use of forensic evidence in criminal cases and 

post-conviction review. 

Prior to his work with The Innocence Project, Mr. Neufeld taught 

trial advocacy at Fordham University Law School and was a staff 

attorney for the Legal Aid Society of New York. He received his law 

degree from New York University School of Law, his bachelor’s 

from University of Wisconsin. He’s no stranger to this Committee, 

and it’s nice to have you back here with us. 

Go ahead, please. 

STATEMENT OF PETER NEUFELD, CO-DIRECTOR, THE 

INNOCENCE PROJECT NEW YORK, NEW YORK 

Mr. NEUFELD. Thank you, Chairman Leahy, Ranking Member 

Sessions, and of course, Senator Franken. Thank you all for being 

here. 

I am the co-founder of The Innocence Project and it is a special 

occasion for me to be back here. I have an incredible respect for 

this Committee. After all, it was this Committee that played such 

a pivotal role in the passage of the Innocence Protection Act in 

2004, which gave people who have been imprisoned access to DNA 

testing to prove their innocence. 

It was also this Committee that played a critical role in passage 

of the Coverdell amendment in 2004 which required State and local 

crime laboratories that receive Federal funding to conduct independent audits whenever there were serious questions about negligence or misconduct that would call into question the reliability 

of their forensic results. 

In that regard, I’d like to congratulate the speaker to the left of 

me here, Harold Hurtt, who is the police chief of Houston who, 

frankly, embarked on probably the most comprehensive forensic 

science audit in the country of a laboratory, and did it before the 

Coverdell amendment went into effect, just simply did it 

proactively on his own, and it should be an extraordinary role 

model for other crime laboratories in the country. So, thank you, 

Chief Hurtt. 

But what I’m here to talk about today is the real-life cost of what 

happens when forensic science is either misapplied or invalidated 

forensic science is relied upon to secure a conviction. 

On May 23, 1991 in upstate New York, a young social services 

worker was found dead outside of the farmhouse where she lived. 

She had been strangled, she had been stabbed. Her assailant had 

bitten her in half a dozen places, right through her nightgown into 

her skin. Roy Brown, who is sitting here behind me today, became 

a suspect in that case, primarily because he had a beef with the 

social service agency where this victim had worked. 

The centerpiece of the police case and the prosecution’s case to 

convict Roy was testimony from a forensic dentist. The forensic 

dentist used what was then the prevailing methods of comparing 

bite marks found on a body with the dentures of a suspect. He examined them and he decided that he had a match with Roy’s bite. 

He so testified in court and Roy was convicted. Fortunately for Roy, 

9 

it happened just before, a year before the New York State legislature brought back the death penalty, and so Roy received a life sentence. While in prison, he got very ill. He contracted hepatitis and 

almost died. 

But Roy never gave up fighting. He actually, through the FOIA 

request, got some police reports which identified a person who he 

believed had actually committed the crime. Roy wrote to him and 

said, ‘‘One day they’ll do DNA testing on those saliva stains left by 

the biter and it will demonstrate that you’re the real perpetrator: 

repent now! ’’ 

The letter was sent, and 3 days later that man threw himself in 

front of an Amtrak train in upstate New York and killed himself. 

We got involved in the case, and of course we couldn’t do DNA testing on the deceased because of the way he died, but we were able 

to eventually get DNA testing on the saliva stains all over the 

woman’s back and compare them with DNA from the daughter of 

this man who threw himself in front of the train. Lo and behold, 

it was a perfect paternity. Again, the remnants of this man were 

exhumed, DNA testing was done, and everybody agreed, the prosecutor and the judge, that Roy Brown was completely innocent, 

having spent 15 years of a life sentence in prison for a crime he 

did not commit. 

You’ve already heard from both Chairman Leahy and also Mr. 

Franken the story of Todd Cameron Willingham, who very well 

may have been executed, albeit completely innocent, simply because a State arson investigator used what were then prevailing, 

generally accepted means to determine when a fire was deliberately set as opposed to an accident. It just so happened that 

those means that he relied upon had never been scientifically validated and turned out to be unscientific, at least so say the five national experts who have reviewed the data in that case since. 

These are only two of the examples of the 242 people that we 

worked with at The Innocence Project who have been subsequently 

exonerated through DNA. Although Mr. Willingham was not exonerated through DNA, I think it’s pretty clear he was innocent 

based on the other evidence. 

What folks have to realize about these cases, as Senator Franken 

pointed out, is it’s not just about exonerating innocent people because in each of these cases the real perpetrator was out there 

committing other heinous crimes. In fact, in the 105 cases where 

we at The Innocence Project worked with police and prosecutors to 

identify the real perpetrator, it turns out that those real perpetrators committed a minimum of dozens of other vicious rapes and 

murders, rapes and murders that could be avoided if something 

had been done about that early on with better science. 

The real question here as we go forward is, are we going to try 

and have an independent scientific entity that can rigorously scrutinize the forensic disciplines and make sure that we have the best, 

robust methods possible, or are we going to allow the same old system to be perpetuated and allow innocent people to be wrongly convicted and the guilty to go free? I am confident that this Committee 

will not let that happen and will do the right thing. 

10 

Chairman LEAHY. Thank you very much. Again, thank you for 

your help in the past, especially the original Innocence Protection 

Act. 

Chief Harold Hurtt is the chief of police in Houston, Texas, a position he’s held since 2004, am I correct, Chief? 

Chief HURTT. Yes, sir. 

Chairman LEAHY. Chief Hurtt began his career in 1968 with the 

Phoenix, Arizona police department. He rose to the post of executive assistant chief of police. After serving as chief of police for 

Oxnard, California, he returned to Phoenix in 1998 and served as 

chief of police there. Chief Hurtt has been selected twice by his 

peers as president of the Major Cities Chiefs Association. Chief 

Hurtt received his undergraduate degree in sociology from Arizona 

State University, and later received his master’s in organizational 

management from the University of Phoenix. He and his associate 

are well known to this Committee, of course. 

It was about 38 years ago when the District Attorney of Harris 

County, a man named Carol Vance, was also the president of the 

National District Attorneys Association. I know that only because 

I was one of the officers of the National DAs at the time and went 

to Harris County and went to Houston a couple of times for meetings and one time for an extradition. Houston has changed a great 

deal since then. 

Chief HURTT. Yes, it has. 

Chairman LEAHY. Chief, it’s good to have you here. Please go 

ahead, sir. 

STATEMENT OF HAROLD HURTT, CHIEF OF POLICE, HOUSTON 

POLICE DEPARTMENT, HOUSTON, TEXAS 

Chief HURTT. Mr. Chair and members of the Committee, good 

morning, and thank you for inviting me to testify today. It is, indeed, an honor. 

Today I will give you an historical account of the Houston Police 

Department’s crime lab, talk about reforms implemented, and potential solutions for addressing challenges in forensics. 

In November of 2002, the Houston Police Department requested 

an independent audit of the DNA Section of the Houston Police Department by the Texas Department of Public Safety. Deficiencies 

were found that resulted in the suspension of DNA testing. An Internal Affairs investigation was conducted and discovered criminal 

and administrative violations. Two grand juries reviewed the evidence and no indictments were returned. Results of that investigation led to reprimands, suspensions, and separation of management 

and employees of the crime lab. 

In 2003, a review of cases in which DNA testing was performed 

began, in consultation with the Harris County District Attorney’s 

Office. Three outside DNA laboratories were employed to conduct 

DNA re-testing. The police department hired the National Forensic 

Science Technology Center to assist in the evaluation of the crime 

lab’s operation and to assess its employees. 

In September of 2004, I sought an independent review of the 

crime lab and property room. A stakeholders’ committee was put 

together to oversee the selection and progress of an independent investigator. Mr. Michael Brumwich, a former Inspector General with 

11 

the U.S. Justice Department, was selected. The stakeholder committee included various community leaders, civil rights advocates, 

prosecutors and defense attorneys, forensic scientists, and members 

of the academic community. 

The primary elements addressed by this study or investigation 

consisted of reviewing the past and present operation of the crime 

lab and property room. Serology incarceration cases from 1980 to 

1992 were reviewed. The final report was issued in the summer of 

2007. 

The investigation revealed the following: for the previous 15 

years prior to the 2002 closing of the HPD DNA crime lab, or the 

DNA lab, there was a lack of support and resources for the crime 

lab. Ineffective management was in place. There was a lack of adequate quality control and quality assurance. 

There have been many reforms implemented in the Houston Police Department crime lab. We have implemented new crime lab 

testing procedures, practices, and policies. In 2005, the Texas State 

legislature mandated accreditation for all crime labs in the State. 

During that year, the crime lab received national accreditation 

from the American Society of Crime Lab Directors’ Laboratory Accreditation Board. It was accredited in the following areas: controlled substances, firearms, toxicology, question documents, and 

biology. In 2006, the crime lab received accreditation in DNA and 

trace analysis. 

Our hiring criteria has been upgraded, with emphasis on experience, certifications, and educational credentials. We have also imposed rigorous training requirements, including yearly ethics training. We have instituted a comprehensive quality assurance program and we have continued our cooperation with The Innocence 

Project. We have started case assessment strategies based on the 

United Kingdom model. A new property room has been built and 

robots are being evaluated for DNA testing. 

Now we’d like to make some recommendations in reference to addressing the challenges in forensic science. First of all, proper funding for crime labs must occur. We need to take advantage of the 

new technology, especially robotics. The hiring of competent staff 

and training will be critical. Case assessment strategy that was implemented by and used in the United Kingdom must be used here. 

Also critically important is the educating of judges, prosecutors, 

and defense attorneys of the basic principles of scientific evidence. 

Thank you. 

Chairman LEAHY. Chief Hurtt, thank you very, very much. We 

appreciate the help you and your colleagues have given to this 

Committee over the years. I appreciate it very much. 

Chief HURTT. Thank you, sir. 

Chairman LEAHY. Paul Giannelli is the Albert J. Weatherhead, 

III and Richard W. Weatherhead Professor of Law at Case Western 

Reserve University. He began his career as a military prosecutor 

and defense counsel, where he became an academic expert in the 

field of evidence and criminal procedure. 

Mr. Giannelli has authored numerous articles and books on the 

use of scientific evidence. He received his J.D. and Master of Laws 

from the University of Virginia, and he has a Master of Science degree in forensic science from George Washington University. 

12 

Mr. Giannelli, welcome. Please go ahead, sir. 

STATEMENT OF PAUL GIANNELLI, PROFESSOR, CASE 

WESTERN RESERVE UNIVERSITY, CLEVELAND, OHIO 

Mr. GIANNELLI. Thank you, Mr. Chairman, Senator Sessions, 

Senator Franken. 

While serving in the Army during the Vietnam War, I was assigned to the forensic medicine program at the Armed Forces Institute of Pathology at Walter Reed. At the same time, I earned a 

Master’s degree at George Washington University and I then 

taught a course on scientific evidence at the Army JAG school in 

Charlottesville for 2 years. I’ve been at Case Western Reserve University for going on 35 years, and scientific evidence has been my 

area of research interest for that time. 

The publication of the National Academy of Sciences report is 

one of the most important developments in forensic science since 

the creation of the first crime laboratory in this country in the 

1920s. The report is both comprehensive and insightful. Its findings are well-documented, and the need for a new approach, one 

rooted in science, as outlined in the report, is critical. 

In sum, I believe this is an exceptional report. Its recommendations, if adopted, would benefit law enforcement and prosecutors in 

the long run. It would allow forensic science to develop a strong scientific basis and limit evidentiary challenges regarding the reliability of scientific evidence. 

First, I want to stress the importance of scientific evidence in the 

criminal process. It is often superior to other forms of proof. Forty 

years ago, the Supreme Court noted that ‘‘fingerprinting is an inherently more reliable and effective crime-solving tool than eyewitness identifications or confessions and is not subject to such 

abuses as an improper line-up or the ‘third degree.’ ’’ 

More recently, the DNA exoneration cases have highlighted the 

problems with eyewitness identifications, jail informant testify, and 

false confessions. According to The Innocence Project, there are 

now over 240 exonerations. However, the exoneration cases have 

also exposed problems with scientific evidence, and I want to focus 

my remarks on what I believe is the crucial issue: the lack of empirical research in some forensic identification disciplines and how 

to address that. 

The lack of empirical research is noted in the report over and 

over again. ‘‘Among existing forensic methods, only nuclear DNA 

has been rigorously shown to have the capacity to consistently, and 

with a high degree of certainty, to demonstrate a connection between an evidentiary sample and a specific individual source.’’ 

Another passage states, ‘‘Some forensic science disciplines are 

supported by little rigorous, systematic research to validate the discipline’s basic premises and techniques. There is no evident reason 

why such research cannot be conducted.’’ Common identification 

techniques, those that rely on an examiner’s subjective judgment, 

lack sufficient empirical support. 

For example, the report wrote, first, ‘‘sufficient studies on firearms identification have not been done to understand reliability 

and repeatability of the methods’’; two, ‘‘the scientific basis for 

handwriting comparisons needs to be strengthened’’; three, ‘‘reVerDate Nov 24 2008 11:20 Aug 04, 2010 Jkt 054720 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54720.TXT SJUD1 PsN: CMORC
13 

search is needed to properly underpin the process of fingerprint 

identification’’; four, ‘‘testimony linking microscopic hair analysis 

with particular defendants is highly unreliable’’; five, ‘‘there is no 

science on reproducibility of the different methods of bite-mark 

analysis.’’ Chapter five of the report documents these conclusions 

in detail and my research is in accord. 

Similar concerns can be found in court decisions for more than 

a decade. After the Supreme Court’s decision in Daubert v. Merrill 

Dow Pharmaceuticals, some lower courts began to question how expert testimony was being presented at trial. 

In the Mitchell case, Judge Becker wrote, ‘‘The testimony at the 

Daubert hearing indicated that some latent fingerprint examiners 

insist that there is no error rate associated with their activities. 

This would be out of place under Rule 702,’’ which is the governing 

standard on expert testimony. In United States v. Green, the judge 

wrote, ‘‘the more courts admit this type of tool mark evidence without requiring documentation, proficiency testing, or evidence of reliability, the more sloppy practices will endure; we should require 

more.’’ 

In United States v. Crisp, the judge wrote that ‘‘the government 

has had ten years to comply with Daubert. It should not be given 

a pass in this case.’’ The case dealt with fingerprint and handwriting evidence, and this was six years ago. 

Firearms identification. Examiners testified in another case to 

the effect that they were 100 percent sure of their match. The 

judge wrote, ‘‘Because an examiner’s bottom-line opinion as to identification is largely a subjective one, there is no reliable statistical 

or scientific methodology’’ to support that conclusion. 

In United States v. Glynn, the court wrote that the ‘‘Government 

did not seriously contest the Court’s conclusion that ballistics 

lacked the rigor of science, and that whatever else it might be, its 

methodology was too subjective to permit opinions to be stated to 

a ‘reasonable degree of ballistic certainty.’ ’’ 

In Williamson v. Reynolds the court wrote: ‘‘this court has been 

unsuccessful in its attempts to locate any indication that hair comparison testimony meets any requirements of Daubert.’’ This decision was handed down in a habeas case five days before the scheduled execution date. 

A New York case in 1995 concluded that, ‘‘forensic document examination, despite the existence of a certification program, professional journals, and other trappings of science, cannot, after 

Daubert, be regarded as scientific knowledge.’’ 

Independent scientific research is critical and the most thorough 

and well-reasoned reports in the field have come from independent 

scientific investigation: the National Academy’s voice print report 

in 1979, its DNA reports in 1992 and 1996, its polygraph report in 

2002, the bullet lead report in 2004. 

The creation of a National Institute of Forensic Sciences, recommendation one in the report, is essential. An independent agency, steeped in the traditions of science, is required. In addition to 

independence and strong scientific credentials, a new entity should 

be dedicated solely to forensic science. It should not be encumbered 

with multiple missions. 

14 

Once in place, it could focus quickly on the agenda outlined in 

the report. Moreover, a national institute would have the prestige 

to attract top scientists to the field and to influence universities to 

conduct peer-reviewed research and to establish rigorous educational programs. In contrast, an entity that is part of an agency 

in another department will not attract the same level of talent. 

Finally, there are many talented, conscientious examiners working in crime laboratories throughout this country. These examiners 

need to be supported, they need funds for better equipment and advanced schooling, and continuing education. 

Thank you. 

Chairman LEAHY. Thank you very much, Mr. Giannelli. 

Mr. Matson is from Alabama, and I’d ask if Senator Sessions 

would like to introduce him. And we thank you for being here, Mr. 

Matson. 

Senator SESSIONS. Thank you, Mr. Chairman. It’s a delight to introduce Barry Matson to the Committee. He is an experienced prosecutor who has personally tried many serious major felonies, including capital cases. He’s conducted grand jury investigations and 

personally worked with a lot of complex cases. He now is the chief 

prosecutor for the Alabama Computer Forensic Laboratories and is 

deputy director of the Alabama District Attorneys Association. He 

is founder of the National Computer Forensic Institute in Hoover, 

Alabama. 

I think he’ll provide some valuable information to us from a practical perspective, Mr. Chairman. Thank you for inviting him. 

Chairman LEAHY. Thank you, Senator Sessions. 

Please go ahead. 

Senator SESSIONS. I would note, his degree is from Jacksonville 

State University in criminal justice, undergraduate, which has got 

an excellent criminal justice program, and his law degree at Birmingham School of Law. 

STATEMENT OF BARRY MATSON, DEPUTY DIRECTOR, ALABAMA DISTRICT ATTORNEYS ASSOCIATION; CHIEF PROSECUTOR, ALABAMA COMPUTER FORENSICS LABORATORIES 

MONTGOMERY, ALABAMA 

Mr. MATSON. Thank you, Your Honor. 

Mr. Chairman and members of the Committee, I want to thank 

you for the honor of appearing before you to discuss the National 

Academy of Sciences’ report. It is especially significant that we appear before you on a subject so vital to the future of law enforcement, prosecution, and the administration of justice everywhere. 

I’m a career prosecutor. Prior to my current position, I was Chief 

Deputy District Attorney in Talledega County, Alabama for 16 

years. In that county, in Talledega County, it’s not unlike most jurisdictions across this country. We were faced, and are faced every 

day, with challenges facing the criminal justice system while our 

dockets were exploding. We faced those challenges with a strong 

work ethic, a deep passion to protect the public, and to do justice. 

Mr. Chairman and members of the Committee, please know, a 

prosecutor is held to a higher standard than that imposed on other 

attorneys because of the unique function we perform in representing the interests and exercising the sovereign power of the 

15 

State. In my testimony today I will endeavor to give a voice to the 

everyday prosecutor, struggling with too few resources, expanding 

caseloads, as well as agenda-driven criminal defense lobbies. 

We applaud Congress for directing the National Academy of 

Sciences to undertake the study that led to this report. It is not in 

spite of the fact that we are prosecutors that we welcome a serious 

critique of the forensic science process, it is because we are prosecutors. 

But like many endeavors, those with agendas have made an impact, not only on this report, but now in the courtrooms across this 

country. The absence of prosecutors on the National Academy of 

Sciences Committee on Forensic Sciences has not been lost on those 

of us serving every day in the trenches of America’s courtrooms. 

The failure of the Committee to seek the consultation of State or 

local prosecutors in its eight separate meetings is glaring and overlooks one of the criminal justice system’s most vital components. 

Mr. Chairman and members, you well know the role of the prosecutor in the American system. A prosecutor is to judge between 

the people and the government. He is to be the safeguard of one 

and the advocate of the rights of the other. 

Make no mistake about it: I and my colleagues—I’m a tough 

prosecutor and I vigorously seek justice for the victims in the community. However, that toughness is tempered with a simple desire 

to do what is right. One thing that has been grossly overlooked in 

all the process that has gone on in this report is that prosecutors 

and forensic science professionals do more every day to free the innocent and safeguard the liberties of our citizens than any defense 

project or academician will ever do in their career. Those entities 

have no burden or have taken no oath to seek the truth. Conversely, they are required to suppress the truth when it serves the 

best interests of their needs and of their client. 

Have regrettable instances occurred in the forensic setting? Yes. 

Is it to the level that some entities and special projects would have 

us to believe? Absolutely not. As long as human beings are involved, we will endeavor to do the very best we can, but no system 

we ever have will ever be perfect. 

However, the NAS report before you seems to erroneously focus 

on perceived biases in the forensic law enforcement communities. 

Forensic technicians and scientists are said to be rife with cognitive 

bias. This report says they demonstrate bias by seeking to play supervisors or by basing results on suggested data. Some passages 

suggest that forensic scientists simply might see things that don’t 

exist or skew their outcome by intentionally presenting their findings in an unfair way to produce a particular result. 

If we follow that logic, we must ask this question: when a fingerprint examiner in some jurisdiction tells us that a suspect is excluded as a source of the latent print, meaning that person didn’t 

do it, should we now charge him anyway because the examiner’s 

cognitive bias may affect the examination? Obviously the answer is 

a resounding no. That’s a silly question. But it makes a point that 

this report overlooks. In other words, this report suggests that the 

only time forensic sciences is wrong or inaccurate is when the conclusion by the scientist or technician points to the guilt of the accused. If the evidence does not, then everything is okay. 

16 

As we speak in courtrooms all across this country and in jurisdictions of yours and your States, a prosecutor is trying to do the right 

thing. As a seeker of truth, that prosecutor must be able to do everything possible and take every tool into the courtroom that they 

can to seek justice. If she does not have the forensic evidence juries 

have come to demand from a satiation of crime scene television and 

the defense bar demands, she is bludgeoned with pleas of, where 

are the fingerprints, or where is the bullet? But if that prosecutor 

has such evidence and it is relevant and admissible, she must now 

defend that evidence from the defense lawyer’s attacks using this 

NAS report as Defendant’s Exhibit Number 1. It’s happening every 

day in our courtrooms. 

Members of this Committee, it is vital that you know the negative impact this report has already had on prosecutors trying to 

find the truth in every jurisdiction across this country. Former convictions and current prosecutions are being challenged by using the 

words of the NAS report to attack forensic science evidence. This 

is true, even though the report made efforts to say that no judgment is made about past convictions and no view is expressed as 

to whether courts should reassess the cases that have already been 

tried. 

We welcome the recommendations of this Committee, in conclusion, and of the NAS report. We believe that some of these recommendations will serve to strengthen forensic sciences for years 

to come. However, we absolutely recognize and vehemently disagree with portions of the agenda-driven attack upon well-founded 

investigative techniques. These same techniques or sciences are 

used every day to find the truth in every type of case. 

As an investigative tool, every discipline of forensic sciences has 

not simply led to convictions, but has delivered the truth. I know 

this truth, and I sleep very well at night knowing that the dedicated prosecutors, forensic technicians and scientists working in 

independent law enforcement agencies or labs use their craft to see 

that justice is done, innocents are exonerated, and the guilty are 

held responsible for their actions. 

I thank you for your time. 

Chairman LEAHY. Thank you very much. 

Our next witness is Matthew Redle. Did I pronounce that correctly? 

Mr. REDLE. Redle, Mr. Chairman. 

Chairman LEAHY. Redle. Redle. Sorry. Mr. Redle. That is the 

note that I had from my staff, so it’s my fault, not theirs. 

Matthew Redle is a County and Prosecuting Attorney in Sheridan, Wyoming. Mr. Redle has given lectures and conducted training on forensic issues at the National Advocacy Center and for organizations including the National District Attorneys Association, 

the Wyoming Division of Criminal Investigation, and the Wyoming 

State Crime Laboratory. He’s been a panelist at the National Institute of Justice on post-conviction DNA issues. He’s a member of the 

Council of the Criminal Justice Section of the American Bar Association. 

Mr. Redle received his undergraduate and law degrees from 

Creighton University. 

Mr. Redle, please go ahead, sir. 

17 

STATEMENT OF MATTHEW F. REDLE, COUNTY AND PROSECUTING ATTORNEY, SHERIDAN COUNTY SHERIDAN COUNTY, WYOMING 

Mr. REDLE. Thank you, Mr. Chairman, Senator Sessions, members of the Committee. My name is Matt Redle. I’m the duly elected county and prosecuting attorney of Sheridan, Wyoming. It is an 

honor, a distinct honor, to appear before you today. 

As a prosecutor, I’m charged to act as a minister of justice, to 

seek justice in the discharge of my duties. When a crime is committed a victim cries out for justice, the evidence necessary to satisfy that plea may rely upon the work of earnest members of the 

forensic science community. It is their careful analysis of physical 

evidence that may provide a critical link in the chain of proof that 

is necessary to lead to the perpetrator of their crime being brought 

to justice. 

Police, prosecutors, and dedicated men and women in our Nation’s crime laboratories know that the arrest of the wrong person, 

the arrest of an innocent person, may result in yet another innocent person being victimized at the hands of the true perpetrator. 

It does not satisfy our victim’s plea to arrest the wrong person, neither does it fulfill my duty to seek justice, nor protect the citizens 

of my community. Prosecutors know that justice is best served by 

exonerations of the innocent before trial. The reliability of forensic 

science is critical to that effort. 

The release of the National Resource Council report titled, 

‘‘Strengthening Forensic Science in the United States’’ was one step 

in a dialog. It a dialog on how best to provide reliable scientific evidence to the criminal justice system. This hearing and your work 

are a critical next step in that process. 

My prepared remarks concern one recommendation of the Research Council that misses the mark in our effort to secure reliable 

scientific evidence. Recommendation No. 4 suggests the removal of 

public crime laboratories from law enforcement or prosecution 

agencies. I believe, Mr. Chairman, that the question of where a laboratory is located is not nearly as important to the reliability of its 

evidence compared to the question of how it operates. 

Two things, in my estimation, are far more important in promoting scientific reliability in a crime laboratory. The first, is the 

culture developed within that laboratory. Hopefully that culture is 

one that recognizes the contribution that the integrity of the process makes to the reliability of the results and therein to the success 

of the investigation. It is that culture that fosters autonomy within 

a law enforcement agency, encouraging objective clinical judgment. 

Such a culture insulates scientists from inappropriate influences 

and promotes the scientific value of transparency in the testing 

process. 

The second is more concrete. It is the implementation of effective 

programs of quality assurance and quality control. Quality control 

measures, such as laboratory accreditation, certification of scientists, adherence to validated testing protocols, proper and complete documentation, internal and external performance audits and 

inspections, regular proficiency testing, and appropriate corrective 

procedures in the event error is discovered promotes values of 

18 

transparency and reliability and are far more important than the 

name of the agency outside the building. 

With all due respect to Mr. Brown, I would suggest, Mr. Chairman, that Mr. Brown’s case represents not so much a failure of 

science. As much as it pains me to say so, my understanding of the 

events involved in that case, it represents a colossal ethical failure 

on the part of the prosecution in that case. 

The prosecutor, as I understand it, had retained a forensic dentist well-known in New York State to examine the evidence in that 

case. That doctor, Dr. Levine, returned a finding that was exculpatory of Mr. Brown. The prosecutor, not abiding by his ethical responsibilities, not following the constitutional rule of Brady v. 

Maryland, withheld that information from the defense and instead 

shopped for a new expert, a local dentist. As a result of that failure, that ethical failure, this tragic injustice was perpetrated on 

Mr. Brown, and I apologize on behalf of prosecutors everywhere. 

Mr. Chairman, as you and the members of the Committee work 

through the issues raised by the report, I look forward to providing 

whatever assistance I might to help you in your efforts. Thank you. 

Chairman LEAHY. Thank you, Mr. Redle. 

Both you and Mr. Matson and others have stressed the need, as 

a prosecutor, you’re in a pivotal part of the criminal justice system, 

not only the ability to bring charges, but you’re the only one who 

has the real ability to withhold bringing charges if you don’t feel 

the evidence is sufficient. You do stand at that juncture between 

society and the criminal justice system. I’ve always felt that. In 

many ways, the prosecutor carries the most important part, having 

to make those decisions. 

I won’t have time to ask all my questions, and I’ll submit some 

for the record after I finish, because of an appropriations matter. 

I’m going to turn over the gavel to Senator Klobuchar, who is a 

former prosecutor herself. 

Dr. Buel, you emphasize the need for comprehensive forensic reform, substantive reform, support for research, and in not just a 

few high-profile disciplines, like DNA. Now, Congress, again, in a 

bipartisan way, has pushed for important advances in DNA technology, standardization of DNA testing, funding to reduce the backlogs in DNA testing. The more traditional forensic sciences, fingerprints, ballistics, tool-mark examinations, for example, have not received comparable support. 

When I used to prosecute cases we didn’t have DNA. We did 

have bullets, we did have fingerprints, we did have tool marks, we 

did have fiber analysis and so forth. I think every crime victim in 

America deserves to have the highest quality of forensics examination, whether it’s DNA or whatnot. If we take on the challenge of 

comprehensive forensic reform, we invest more in research and 

training for all forensic sciences—I think I know the answer to 

this—not just DNA, would that help us solve more crimes? 

Dr. BUEL. Mr. Chairman, if we can fix the infrastructure of our 

country, if we can fix the bridges, roads, we can improve forensic 

science. I think it’s imperative. I think, like you mentioned, there’s 

only a certain number of cases where DNA would be appropriate 

for use. The other disciplines provide much information for the 

prosecutor to either eliminate or include somebody as a suspect. 

19 

The NAS report took some snapshots of these disciplines, and I 

believe what we need is a full album of pictures to see how best 

to go forward with some of these areas. That’s my recommendation 

of something like the NRC report, done on a national level for some 

of these other areas. So, yes. The same sort of support we’re giving 

to DNA, where we’re trying to remove the backlogs, trying to improve the science, trying to make education paramount for each examiner would go a long way in solving crimes in our great country. 

Chairman LEAHY. Well, Dr. Buel, I like the fact that you mentioned that there’s not DNA evidence in a lot of crimes. I just want 

to underscore that. Many times now, because of, I call it the ‘‘CSI 

effect’’, people are saying, OK, where is the DNA evidence? In an 

earlier era, where are the fingerprints? In many cases we don’t 

have that and we don’t have those things. I think it’s good that you 

emphasize this. 

Mr. Neufeld, you talked about forensic evidence exonerating people. You’ve worked very hard, you and the others, on this area. 

How important is comprehensive scientific research and testing of 

the non-DNA forensic sciences? Are we doing enough in the nonDNA forensic sciences in our standards and our testing? 

Mr. NEUFELD. Well, you know, it’s interesting. Congress historically has been extremely generous in providing States and localities money to do forensic DNA testing. I think one of the main reasons they were generous is that everybody understood the validity 

and reliability, the robustness of this technology. It made sense. It 

was good public safety. What this issue—— 

Chairman LEAHY. Could we not be doing the same in some of the 

other areas? 

Mr. NEUFELD. Well, I mean, what the NAS report is saying, you 

know, these other areas are not as robust and they need more research, basic research, applied research. They need standards, like 

DNA has. Once they have those things in place, sure, they should 

be getting additional funding as well. But to simply give the funding for the other disciplines—— 

Chairman LEAHY. But isn’t there kind of a chicken/egg thing 

there? I mean, if you’re going to improve them you’re also going to 

have to have funding, training, and standards to improve them, are 

you not? 

Mr. NEUFELD. Well, absolutely. But what you have to do scientifically, is the first thing you do is you have the basic and applied 

research to validate. Once it’s validated you come up with standards and parameters for understanding when the technology will 

work and when it won’t work, and then you have additional funding to train all the people who are utilizing it to make sure they 

do it the right way. It’s not a chicken and egg, it’s actually a very 

logical procedure—— 

Chairman LEAHY. So what you’re saying is, establish the standards and then make sure you’ve got the money so the standards 

can be used. 

Mr. NEUFELD. Absolutely. And to establish the standards, do the 

necessary research. 

Chairman LEAHY. Thank you. 

And if I might, with the forbearance of Senator Sessions, just ask 

one other question. I’ll put the rest in the record. 

20 

Chief Hurtt, I read more than I laid out in my introduction of 

you about the problems you faced in Houston. You actually had two 

choices. You could have tried to sweep it under the rug or you 

could have confronted it and tried to make changes and do the necessary retesting, evaluation, and so on. 

Based on your experience, and based on your experience of 40 

years in law enforcement, what would you tell another police chief 

if they called you up and said, hey, chief, I think we’re a little 

shaky in our labs here. What should I do about it? 

Chief HURTT. Thank you, Mr. Chairman. The first thing the chief 

did, as far as admitting to, is that he did have a problem. The other 

is to make sure that any process that is undertaken to fix that 

problem, that they be very transparent. The only way that we’re 

going to be able to regain the confidence of forensic science, whether it’s DNA or the other sciences, we need to make sure that we 

make it plain that we understand that there were mistakes or errors made and that we’re taking the appropriate steps, and that we 

will employ experts in the field like we did in the Houston Police 

Department to come in and do an extensive investigation and then 

implement the recommendations from that investigation. Thank 

you. 

Chairman LEAHY. Thank you very much, Chief. 

Chairman LEAHY. Senator Sessions, thank you for your forbearance. 

Senator SESSIONS. Thank you. 

Mr. Brown, I also would say to you how distressing it is to hear 

your story and what you suffered as a result of an injustice. That’s 

pretty clear that that happened and it troubles me, as someone 

who has spent a lot of time in law enforcement. I’ve seen some 

close cases. The two I’ve seen that were innocent, the hair still 

stands up on my neck when I think about them. Neither served a 

lot of time. It was eyewitness testimony that turned out to be 

wrong. So, it’s scary. We have to be careful in the criminal justice 

system. 

I would note that in the Corsican Daily Sun in Texas, Judge 

John Jackson, who was one of the prosecutors in the Willingham 

case, wrote a letter August 28th that was published. He said the 

trial of Mr. Willingham contained overwhelming evidence of guilt 

completely independent of the undeniably flawed forensic report. 

He said, for example, the event which caused the three children’s 

death was a third attempt by Todd Willingham to kill his children, 

established by the evidence. He had attempted to abort both pregnancies by vicious attacks on his wife in which he beat and kicked 

his wife with the specific intent to trigger miscarriages. 

Blood gas analysis revealed that he had not inhaled smoke, contrary to his statement which detailed rescue attempts. He rejected 

taking a polygraph. He was a serial wife abuser, both physically 

and emotionally. His violent nature was further established by his 

vicious attacks on animals, which is common to violent sociopaths. 

Witnesses heard him, at the funeral of his deceased older daughter, at the funeral home, whispering to, I guess, the body, ‘‘You’re 

not the one who was supposed to die.’’ A refrigerator had been 

pushed against the back door, making it difficult, if not impossible, 

to get out. When a plea bargain was discussed with him, it was reVerDate Nov 24 2008 11:20 Aug 04, 2010 Jkt 054720 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54720.TXT SJUD1 PsN: CMORC
21 

jected with an obscene and potentially violent confrontation with 

his defense counsel. So I don’t know what the truth is in that case. 

That does not excuse a flawed forensic report, but it looks like 

there was other evidence in the case indicating guilt. 

Chief Hurtt, you have a big police department. You bring a lot 

of cases every year. Do the delays in forensic sciences overall, a 

lack of resources in the forensic science laboratories, does that 

present a problem for your police officers who go out and make a 

case, but then you have to wait before it can go forward to prosecution for these reports to be completed? 

Chief HURTT. That is, indeed, a problem that we face in the 

Houston Police Department on a daily basis. For instance, we were 

investigating a serial rapist and homicide case in north Houston 

and we wanted to send out some evidence to the FBI DNA lab. It 

took almost a year for us to get a return on that because of the 

backlog that they were facing and the requests that they were getting from around the country. 

Senator SESSIONS. So you send your DNA to the FBI lab routinely? 

Chief HURTT. In some cases, sir, we send it to the FBI lab, but 

we do have a fully operating lab within the Houston Police Department. 

Senator SESSIONS. Mr. Matson, I guess you’re still prosecuting, 

but as a Talledega County prosecutor do you find that frustrating 

for law enforcement officers and prosecutors, the delays in getting 

forensic reports? Could those delays actually result in a criminal 

being able to run loose in the community and commit more crimes? 

Mr. MATSON. Yes, it is. It’s frustrating. One case comes to mind. 

We would not report a case out of grand jury until we got the forensic reports back to make certain. An individual that wanted to 

plea on the information, which is a pre-indictment form of plea in 

our State, they made the written request. He said, I was caught 

with it, it was powder, it was LSD, and I want to plead guilty. 

The report came in about 6 weeks later and it was not. He had 

been ripped off when he bought it and it wasn’t LSD. He couldn’t 

plead to the controlled substance. He could have plead guilty to 

something he thought he had, but we had to wait. That delay 

caused serious problems in that case. So delaying those cases—we 

can’t go to trial until we have those reports, and sometimes when 

you get the reports, then you need further analysis. 

But I will say this: our State has an independent forensic 

sciences department and they have made great strides in our State 

to overcome that backlog, but it’s come at a great cost, financially 

and manpower. They’re working tremendous hours to get this backlog. I remember several years ago—many years ago, about 10 or so, 

maybe, going to the lab to speak with an expert, with the defense 

lawyer, on a case upcoming. I walked in and there were refrigerators down the wall full of rape kits waiting to be done that had 

to be compared to some perpetrator or to the database system. 

Senator SESSIONS. Did Federal funding help the backlog, to your 

knowledge? 

Mr. MATSON. Yes, sir, and we thank you so much. They really 

did. They were just backed up, and they’ve been able to get those 

22 

taken care of and it’s been a great help. But that backlog is a tremendous burden for us. 

Senator SESSIONS. My time is over. 

Mr. Redle, do you believe that the report, perhaps trying to get 

our attention, used some pretty strong language suggesting the 

unreliability of what I have always understood to be proven scientific techniques? Is that something that the District Attorneys 

are finding, as Mr. Matson said he’s finding in Alabama, that this 

is being thrown up to create the impression with a jury that there’s 

no basis for these kinds of reports? 

Mr. REDLE. Senator Sessions—— 

Senator SESSIONS. You might push your button there to go on 

record. 

Mr. REDLE. Thank you. Senator Sessions, yes. It seems to be 

spotty around the country, but as a result, we’re trying to track 

that within the national DA’s community to see where the impact 

is, what disciplines are being subject to attack. There are some concerns, although I would note that the National Academy report 

does indicate that it is not passing any judgment on the use of any 

of these techniques in prior cases, in past cases. It’s simply calling 

upon the country, the Nation, as it were, policymakers such as 

yourself, to provide the necessary leadership to see that 

unvalidated issues of science are given the resources to be validated. 

Senator SESSIONS. Well, you’re right, it does make those qualifications. But there is some language, I assume, that’s probably 

being thrown up in court a lot. I’d like—Madam Chairman, maybe 

we can talk with Chairman Leahy, you, and others on this issue. 

Maybe some national training. Maybe we don’t have enough national training centers. It would be something the Federal Government could do without taking over local law enforcement, providing 

training at a discounted rate, or free, for people so we reduce the 

possibility of error. Thank you. 

Senator KLOBUCHAR. Thank you very much, Senator Sessions. 

Senator Franken. 

Senator FRANKEN. Thank you, Madam Chair. 

I have a question for Mr. Neufeld. I read the article in The New 

Yorker about Mr. Willingham. Actually, I find some of Mr. Jackson, 

the prosecutor’s, testimony to be very suspect. It doesn’t seem that 

it washes. There are parts of this article that really—first of all, 

five experts said that there was no arson in this. But I don’t want 

to argue this case, but I found the article extremely disturbing and 

the findings of the National Academy’s report to be terrifying, both 

for the falsely accused and for the safety of our communities who 

falsely think the real criminals are off the streets. 

In my opening statement I asked whether we should consider a 

nationwide moratorium on the death penalty. What do you think 

of this? Do you think it is necessary at this point in time? 

Mr. NEUFELD. Thank you, Senator. First of all, just to follow up 

on the remark you made in response to Senator Sessions’ statement about the case in Texas, in all these cases, Senator, where 

we’ve exonerated people, there was overwhelming evidence of guilt. 

It just so happened the person was innocent. What we find so extraordinary in these cases is that when we go back and we 

23 

deconstruct them, all those different pieces that, together, look like 

overwhelming evidence of guilt, turn out to not hold scrutiny. 

For example, in Mr. Brown’s case there was also a jailhouse informant who said he had confessed to him. He, too, had a wife who 

said not such nice—an ex-wife who said not such nice things about 

him during the course of the prosecution. It turned out that the informant was wrong, that the wife’s remarks had a certain bias 

themselves, and indeed, this man, Roy Brown, was completely innocent, but nevertheless spent 15 years in prison. 

The same can be said for the other 241 post-conviction DNA 

exonerees, 17 of whom had been sentenced to death. Many of them 

had been sentenced to death based on the misapplication of forensic science. The case that Mr. Giannelli referenced of Ron 

Williamson, came within five days of execution. The centerpiece of 

that case was bad hair evidence from the State hair examiner. 

Mr. Brown, fortunately, was never on death row, but we had a 

death row inmate in Mississippi where the leading forensic dentist 

said it was absolutely certain it was his teeth, to the exclusion of 

the whole world. He was dead wrong. He came within months of 

being executed. Again and again and again, in hair, in serology, in 

bite marks, and in fingerprints. Brandon Mayfield could have faced 

the death sentence as a terrorist had he been convicted as an accessory in the bombing of the Madrid train station. Nevertheless, 

completely innocent. 

So the point is, to answer your question, finally, is that whereas 

we can debate all kinds of things about the death penalty politically, philosophically, religiously, the one thing we can’t debate is 

that all these wrongful convictions demonstrate quite compellingly 

that the system is not quite as perfect, as invulnerable as we always thought it was and to have a punishment where you can’t reverse it in the event you find new evidence of innocence, as in the 

Willingham case, raises a very serious problem and perhaps a justification for considering suspending temporarily the death sentence unless and until we can make these forensic sciences sufficiently rigorous that we don’t have to have those reservations. 

Senator FRANKEN. Thank you. 

Mr. Matson, the National Academy’s report unequivocally says 

that DNA testing is far and away the most reliable and scientifically sound forensic technique. Yet, as you mentioned, law enforcement agencies around the country have a major backlog of rape 

kits that often contain critical DNA evidence. These should be 

high-priority cases. Given your experience in the field, what do you 

think we should do, or could do, to make sure that funding is available for forensic testing, to maximize DNA testing? 

Mr. MATSON. Senator, I think Congress has taken great steps to 

provide funding for that. I think those backlogs are starting to decrease. We’re seeing that in our State, and in a lot of States. I 

think the state of forensic science, particularly with DNA in that 

area, even the NAS report and I think the folks at this table would 

agree, that DNA is in a place where we would like it to be. I think 

it’s important, though, when we look at DNA cases and we look at 

the exoneration cases, to understand that when we say that serology and hair evidence that Mr. Neufeld mentioned earlier, that 

those cases are flawed science. Well, 75 percent of the cases that 

24 

have gone through The Innocence Project, or those people that 

were exonerated, were cases that were hair and serology from 

maybe 20 years ago. 

Back then, you looked at ABO secreters for blood typing to determine if somebody left a sample. Well, we’re beyond that, so those 

cases are not happening anymore. We’re not having ABO secreters 

tested, it’s DNA. If it’s hair, it’s mitochondrial DNA. I had the first 

mitochondrial DNA in the State of Alabama. In that case, we used 

a laboratory out of Virginia. It cost a tremendous amount of money. 

We had no local funding for it. We had to find the dollars. We did, 

and had that case. So I do think that there are things in place to 

help us in funding and DNA and getting that backlog—— 

Senator FRANKEN. Thank you, Mr. Matson. 

Mr. MATSON. Yes, sir. 

Senator FRANKEN. I think you answered my question. Thank you 

very much. 

Mr. MATSON. Thank you. 

Senator FRANKEN. Thank you, Madam Chair. 

Senator KLOBUCHAR. Senator Durbin. 

Senator DURBIN. Thank you, Madam Chair. 

Mr. Neufeld, based on DNA evidence, how many prisoners have 

been exonerated following their convictions? 

Mr. NEUFELD. As of today, we have 242 people who have been 

convicted who have subsequently been exonerated by DNA. I would 

point out that in almost all those cases, the exonerees had completely exhausted their direct appeals, had completed their collateral attacks on habeas corpus, and would have either been executed or spent the rest of their years in prison but for the sort of 

serendipitous intervention of DNA testing. 

Senator DURBIN. In those States where access to DNA testing is 

not available on a post-conviction basis, what is the solution? 

Mr. NEUFELD. Where there hasn’t been access to DNA? 

Senator DURBIN. States where there is no access to DNA testing. 

Mr. NEUFELD. Well, that’s a tough question, because I had the 

misfortune of arguing a case before the U.S. Supreme Court this 

last term to determine whether there was a constitutional right to 

post-conviction DNA testing, and five of the nine justices disagreed 

with me. So we’re going to do everything we can to create access 

through the local legislatures as best we can. I do think that there 

is something more that Congress can do in that regard. 

When the Innocence Protection Act was passed, it was the will 

of the Congress that States pass bills that would provide easier access to post-conviction DNA testing, and if they did so there would 

be certain pools of money made available to them. What ultimately 

happened with that bill is that the pools of money that would be 

made available shrunk considerably so it no longer became that important to a State to allow for post-conviction DNA testing. 

Certainly when you reconsider the Innocence Protection Act, 

which is coming up, I think, this fall, it would be very useful to go 

back to the original position taken by many members of this Judiciary Committee to create a much greater incentive for those few 

States who have so far refused to grant access to DNA testing. 

25 

Senator DURBIN. Mr. Matson, as a professional prosecutor, don’t 

you believe, in good conscience, that there should be DNA testing 

in every State? 

Mr. MATSON. Yes, sir. I believe that when it’s available, when the 

DNA evidence is available to show that, then it should be. I would 

give an example, though. Something we must understand is, postconviction evidence, sometimes from so many years ago, that evidence, it could be an article of clothing, may be kept in a filing cabinet in a court reporter’s office. I had a case that involved a postconviction on a death penalty case. We were in the Rule 33, or 

post-conviction hearings. About a year into it, the person serving 

time, a clerk wanted to come down and look at some of the evidence. They opened the rape kit. He wanted to open it and actually 

touch it. Well, he would have left DNA in that sample. 

Senator DURBIN. But that’s an issue that would be raised, would 

it not, on chain of custody and credibility of the evidence? I mean, 

it could be that there is not any piece of evidence remaining that 

could either convict or exonerate a person. I mean, the court has 

to reach a threshold of where they have some credible piece of evidence. But assuming they have a credible piece of evidence and 

chain of custody, you’re saying, as a professional prosecutor, you 

believe there should be DNA testing allowed, is that correct? 

Mr. MATSON. Any time that we can do anything to find the truth, 

I support it. I just know that sometimes when you’ve got a case 

that is 8, 9, or 10 years old and you’ve got a sample, maybe from 

a rape kit or something of that nature, maybe an article of clothing 

you want to test, we don’t know who’s handled it and who hasn’t 

handled it in 10 years. Then we come back if a motion for a new 

trial is granted. The prosecutor is dead, the witnesses are dead, 

and I’m left there reading a transcript into the record in front of 

a jury for 3 days. 

Senator DURBIN. I think you make a valid point there, and I appreciate your statement. 

Mr. Neufeld, are there any forensic science methods that we 

should basically disregard based on what you’ve been through? I 

mean, we understand that nuclear DNA analysis is reliable, but 

are there some forensic methods that you believe are so intrinsically suspect or unreliable that we should not count on them? 

Mr. NEUFELD. Senator Durbin, I’m not a scientist. I’m also not 

a good technician. I’m not a scientist and I’m unqualified to answer 

that question. In fact, there’s only one scientist actually sitting at 

this bench right now, and that’s the doctor from Vermont. Others 

have written who are scientists that a number of disciplines have 

not been adequately validated. 

I have seen firsthand, in the cases that I’ve represented individuals, where technologies that are still in use, such as bite marks 

and arson, are nevertheless misapplying science and the result is 

that there are wrongful convictions and the really bad guys are left 

out there to commit more crimes. If other scientists who are reputable scientists have reached that kind of consensus as they did 

in the National Academy of Sciences report, then that should be a 

cause for pause. But hopefully that decision will be made by other 

scientists, not by a mere lawyer. 

Senator DURBIN. Thank you. 

26 

Thank you, Madam Chair. 

Senator KLOBUCHAR. Thank you very much. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Madam Chair. 

Chief Hurtt, I’d like to ask you to comment on the problem of 

delays, particularly delays occasioned by lack of resources in the 

processing of crime scene evidence, not only from the perspective 

of its effect on the prosecution of that particular offense, but from 

a police and investigation point of view as you try to develop leads 

that might relate to other cases. This was brought home by a recent visit in Rhode Island with a local police chief who had been 

waiting over a year for a simple firearms ballistics report to come 

back to him in a case. 

How significant is it, in terms of your own investigative authorities and responsibilities as police officers, to not just have accurate 

scientific evidence, but timely access to it while the crime is fresh 

and the witnesses are around and interconnections can be made 

with other evidence in other cases? 

Chief HURTT. Madam Chair, Senator Whitehouse, that’s a very 

good question, because as cases linger my investigators are assigned new cases every day. In order for them to be able to manage 

their cases, at some point they need to close a case, clear it, and 

move on, otherwise we’ll have officers with stacks and stacks of 

cases. We are very interested in seeing that justice is done. 

When we have delays, as you say, witnesses disappear, people 

die, and I guess the worst part of it all, when we have to wait long 

periods of time for evidence to be tested, that suspect may stay free 

to continue to commit other violent offenses. So I guess to sum it 

up, number one, it increases the workload for the detective, it also 

gives an opportunity for that individual to remain free and commit 

other crimes, and justice is not being served to the victims that 

have been victimized by either property crimes or violent offenses. 

Senator WHITEHOUSE. Thank you, Chief. 

I guess I’d like to ask prosecutors, Mr. Matson and Mr. Redle, 

this. When I was our Attorney General in Rhode Island, it’s one of 

the very few States where the Attorney General is also the D.A. 

We, Delaware, and Alaska are the three. So I have been in your 

shoes and I remember very distinctly a case that happened during 

my tenure when a police officer who had been convicted of murder 

proved to have been innocent. 

He was imprisoned, and it was my, I guess, mixed duty—happy 

to get the right thing done, unfortunate this happened in the first 

case—to move as rapidly as we could to secure his release from 

prison and proceed with the prosecution of the individual who had 

come in to confess to the crime after the police officer had spent 

several years in prison for a crime that he had not committed. 

Now, Rhode Island doesn’t have a death penalty. We gave it up 

years ago after a murder back in 1850, when it appeared very 

much that the wrong individual had been convicted and hanged for 

the murder. So we haven’t had to face the issue of dealing with 

death penalty prosecutions. 

But I was also U.S. Attorney. The U.S. Attorneys Offices have 

very rigorous standards for proceeding with a death case. They 

struck me as being good, thoughtful standards. I was glad, as U.S. 

27 

Attorney, that there were these additional layers of process, procedure, internal review, disclosure, and so forth that were required 

for death penalty cases. I don’t believe that those standards exist 

around the Nation. 

In many States there seems to be no real difference at all between a death penalty case and a regular case. I’m just wondering 

what your observations are as prosecutors about the extent and the 

merits of additional procedural protections in death penalty cases 

where, if there is error, the error becomes irretrievable by virtue 

of the application of the death penalty. 

Mr. MATSON. You would like us both to respond? 

Senator WHITEHOUSE. If you would. 

Mr. MATSON. If I could, a judge that I’ve worked with for many, 

many years said he called death penalty cases death penalty cases 

because the judge and the prosecutor were dead before the defendant was because of the years it takes. That’s actually true. It is a 

lengthy process. In our State, and I think in most States, you have, 

certainly, the charging process and the grand jury process, and 

then the trial itself, which is bifurcated here. We have a jury trial, 

and then once there is a finding of guilt of capital murder—and 

that doesn’t necessarily mean death penalty. 

Probably more times than not when I’ve had a capital case I 

sought life without parole, or non-dead, which was the recommendation of the victims, the community, or law enforcement, 

and so we didn’t seek death in those cases. It’s not a given that 

it’s going to be death. But we go through that process and then 

there is a stringent amount of appellate systems. We have lengthy 

post-conviction hearings that come back to State courts where evidence is taken, things can be retested, are retested, and they take 

years. I do think we do have those safeguards in our State system. 

Senator WHITEHOUSE. And you’re comfortable that that’s true not 

only of your own State system, but across the country? 

Mr. MATSON. I will say this. I’m asked a lot of times, are you for 

the death penalty? Until you’ve stood in front of a jury, 12 people, 

and asked for that punishment, you really don’t know. Everybody 

in a coffee shop somewhere says they are, but they don’t really 

know. That’s why the jury selection process is very difficult. When 

I’m asked that, are you for the death penalty, I say, in the cases 

that I’ve had, in the horrible, gut-wrenching homicides that I’ve 

had, yes. 

In a case in some other States, the facts—it’s hard for me to 

speak to a case in another State that I don’t know the facts of, I’ve 

not sat on, I’ve not been part of that. So when those decisions were 

made, I trust the judgment of a person who lives in that community, who is a part of that community, who has weighed the evidence. I know the jury system, I know the evidence in the case, and 

I believe in those cases the right thing was done for those people, 

but I can’t judge that for myself because I’m not in that State, in 

that circumstance. 

Senator WHITEHOUSE. Mr. Redle, my time has expired, so it looks 

like you’re off the hook. 

Madam Chair. 

Senator KLOBUCHAR. If you want to finish up, Senator Whitehouse, you can. Okay. 

28 

I wanted to thank all of you for your good testimony here, and 

I wanted to focus a little bit more on where we can find some 

agreement on the recommendations of the panel. I sit here and I’ve 

listened to both the prosecutors and I just feel that frustration 

when you want to get a case done and you have a delay in the evidence, and 2 years from now it’s much harder to do, or a year from 

now, than it would have been if you could get it back in a month. 

I also have had my own experience with working and finding out 

that we thought we had the right person for 8 years, when—you’ve 

all had these cases—some eyewitness comes forward and says this 

is the right person, and then you get the DNA back—and what a 

blessing it is to have that science—and you find out, no, it’s not the 

person that was arrested that happened to live in the building that 

looked like the guy, it’s someone else. So I think the science has 

been truly a blessing, both for convicting people and also for making sure we are not convicting people who are innocent. So I want 

us to all remember that as we go forward. 

The questions I had were specifically, first, on this report, if 

there could be some agreement from the prosecutors on this accreditation issue, that this is something—despite the language you may 

not agree with in the report, that that is something that we could 

look at going forward as a possibility that could be helpful. 

One of the things with the delays, we’ve seen more and more 

testing, forensic testing going on, and there would be a reason, I 

would think, to try to have some set accreditation. I just wondered 

if you could comment on that. 

Mr. REDLE. Senator Klobuchar, yes. I think in most instances we 

actually agree with a lot of the recommendations that the National 

Academy makes, accreditation being one of them. In fact, as a result of the DNA testing and the standards that were placed on that 

by the DNA Advisory Board, you now are looking at a community 

of forensic crime laboratories where I believe we’re pretty close to 

90 percent of the public laboratories are in fact accredited. That’s 

a good thing. Certification needs to happen. That needs to be the 

next step. We believe in standards. The devil is always in the details, but we believe in the imposition of appropriate standards on 

those disciplines. 

Senator KLOBUCHAR. Thank you. 

Mr. Matson, do you agree with that? 

Mr. MATSON. Yes. Yes, I do. We have taken steps in our State, 

in the example of computers. 

Senator KLOBUCHAR. I know. But how about this? Just to go 

back to the report, I think—correct me if I’m wrong—they’re looking at some national standards for accreditation. Do you think that 

would be all right? 

Mr. MATSON. Certainly. I think the more we can give credibility 

to the science and to the technology and the technicians that are 

doing it, the better. I would support that. 

Senator KLOBUCHAR. Okay. And then the other piece of this is 

to suggest some kind of a National Institute of Forensic Science to 

try to get some more research. I realized, as we went on, we had 

the type of DNA testing, for instance, or other kind of testing got 

more and more refined as the science got more and more refined. 

Not only did this involve the training that Senator Sessions was 

29 

mentioning, which I would hope would be a part of any effort that 

we would have here, some training dollars as well as some of the 

backlog that you’re talking about, but this idea of the research that 

is suggested by the report, is that something that you think would 

be helpful? 

Mr. REDLE. Madam Chair, in terms of research, I believe we do 

need more dollars for research. Whether or not that would best be 

provided through some kind of National Institute of Forensic 

Sciences, I very much doubt it. I think that we can be more efficient than that. I think we have the framework for accomplishing 

a lot of those things through already existing agencies. It was odd 

to me when I read the National Academy report that it proposed 

the National Institute of Forensic Sciences and rejected the National Science Foundation and NIST as being host agencies, perhaps, for research funding. It did so on the basis that they had 

modest experience in research funding. Yet, it was proposing the 

creation of a brand-new agency that at least presumably would 

have no experience in research funding. 

Senator KLOBUCHAR. Okay. 

Do you want to answer that, Mr. Giannelli. 

Mr. GIANNELLI. I was a prosecutor for 2 years in the Army, so 

I appreciate the frustration that prosecutors are now facing with 

this report. I’ve talked to lab people and they’re frustrated, too. The 

problem, though, is if you look at the cases by 1995, some of the 

cases I cited, this evidence was being challenged under Daubert 

and the research was not done. It’s been 14, going on 15 years 

when we’ve had these first cases and the research has not been 

done under the current system. So that is the problem here. Now, 

the money was being given, but it was not funneled through the 

right type of research. I think you need some sort of independent 

scientific research program. Thank you. 

Senator KLOBUCHAR. Okay. Thank you. 

Do you want to add anything, Mr. Matson? 

Mr. MATSON. Just, we agree with the concept of the research and 

having that, but I don’t know that a new political entity that would 

go through the political process, the ebbs and flows of politics getting into forensic sciences, is not something I think we need at this 

time. 

Senator KLOBUCHAR. Okay. We’ll look at that. 

I had wanted to ask one question about a case that actually I 

asked now-Justice Sotomayor about, Mr. Neufeld. Just so people 

know, I actually worked with The Innocence Project a little bit 

when I was a prosecutor. We videotape interrogations in Minnesota, and actually our police have grown to like it because it has 

protected them in various claims and also has protected defendants, so we’ve worked together on that, as well as eyewitness identification. It was again I found that we could find some common 

ground on some of these issues. 

I had a question about the Melendez-Diaz case. I think I had told 

you that I disagreed with that case and agreed with Justice Kennedy’s dissent. This is the case about requiring various people—it’s 

not clear from the details—to testify in forensic cases. You yourself, 

in your written testimony, said that cross examination wasn’t 

enough to weed out bad forensic science because judges and lawVerDate Nov 24 2008 11:20 Aug 04, 2010 Jkt 054720 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54720.TXT SJUD1 PsN: CMORC
30 

yers didn’t usually have the scientific backgrounds to understand 

the limitations of some form of forensic science evidence. 

So I’m just curious about how that Melendez-Diaz ruling could be 

a good thing if it just guarantees more cross examination that may 

not be particularly useful in the first place. 

Mr. NEUFELD. Senator Klobuchar, I think you’re completely correct. It’s our position that one of the problems right now, and why 

the court took the position that it’s not enough to introduce a certified crime lab report, that you’d want the individual who actually 

created that report in court, is currently there are no national 

standards about the content of a report. We have seen too many 

forensic reports all over the country which have little more than a 

paragraph in length and a thumbs up or a thumbs down. 

The kind of report that if your doctor gave it to you for an important medical decision, you’d fire the doctor and go to a new hospital. What we’re talking about here, and what the NAS is talking 

about, is having meaningful standards for report writing, standards which will require the forensic scientists to not only describe 

what items were tested, to describe what methods were utilized, to 

identify the results, and then draw conclusions. Those are the 

things that go into a standard scientific report. 

If they did that here, OK, I can assure you, based on my experience—and that’s what happens with DNA—what happens is, there 

are more pleas based on that report. If there aren’t pleas, there are 

stipulations to the content of the report, because the last thing a 

defense attorney needs is some scientist who can support all of 

those findings with comprehensive reporting. 

Senator KLOBUCHAR. So your argument is, if you had more set 

standards for these reports, then you wouldn’t need these witnesses 

testifying? 

Mr. NEUFELD. My opinion, Senator Klobuchar, is if you have 

these reports you will ameliorate the problem considerably because 

people will simply stipulate to their results and they won’t have 

that kind of need to confront somebody on the witness stand. There 

may be some occasions where someone does it, but there’s no question that if you have more rigorous report writing, it becomes a 

more efficient system. 

Senator KLOBUCHAR. Senator Sessions, do you have more? Senator Sessions was out, but we did have a good discussion at the beginning about some common agreements here on the accreditation 

issue, and perhaps more research. There was some disagreement 

on where that research should be housed, but I was trying to—as 

you and I had discussed up here, there is some common agreement 

we can find here with this important report, while people may not 

agree about all the language in it as we move forward, and I added 

that we may want to look at funds for the training that you addressed, as well as the backlog that we continue to deal with all 

the time, Chief Hurtt. Thank you. 

Senator SESSIONS. Well, law enforcement overwhelmingly is a 

State and local responsibility. The Federal Government has a lot 

of problems, but one of them should not be to try to micromanage 

every burglary, robbery, or rape case in America. It’s just not possible to do that. What can the government do? Well, Fred Thompson, when he was on this Committee, he believed that we should 

31 

conduct—the first thing the Federal Government could do in a positive way is to spend the money to do the kind of research that can 

benefit every State and local law enforcement agency in America, 

to provide training, to do those kinds of things. None of those result in a major bureaucracy, hopefully, nor a takeover of local responsibility. So I’m positive about a lot of things that we could do 

together. 

Dr. Buel, with regard to DNA, that’s sort of uniquely capable of 

a virtual absolute scientific certainty, is it not? Not total, but 

it’s—— 

Dr. BUEL. We in Vermont still use statistics, so we give a statistical analysis of the results. 

Senator SESSIONS. How many chances—— 

Dr. BUEL. If you’re giving statistics in the town of Montpelier 

that has a population of 10,000, and they’re in the billions, it’s 

pretty good evidence. Yes. 

Senator SESSIONS. Well, I think that’s true. 

Now, with regard to fingerprints, that is just never going to be 

an exact science, is it? 

Dr. BUEL. Well, I guess my feeling is that under proper use, 

when it’s in an accredited laboratory, when we use quality assurance controls, when we have proficiency testing, blind proficiency 

testing, peer review, verifications, that we’re trying to do the best 

possible job that we can. If we use a conservative approach to how 

we are to do this work, I think it’s properly done and provides excellent evidence. 

Senator SESSIONS. Well, I’ve seen them testify and I’ve seen 

blow-ups of the handwriting, and it’s pretty impressive. If that was 

the only thing in the world I had as evidence against a defendant 

I might be a bit nervous if I were a juror or a prosecutor, but when 

you see that as cumulative, it makes you believe it’s very unlikely 

somebody else wrote that document. But some handwriting, there’s 

not enough of it and it’s not so clear. 

With regard to your forensic people in Vermont, if they wanted 

to be trained in fingerprint analysis or ballistics or DNA, where do 

you go? What kind of—are there a lot of places? Could we do a better job of having training centers of the highest order? 

Dr. BUEL. Yes. Our region has what we call a New England Laboratory Directors Group. Several years ago, we wrote, I guess, a 

very short position paper to NIJ, the National Institute of Justice, 

requesting them to—— 

Senator SESSIONS. To a National Institute of Justice? 

Dr. BUEL. Of Justice. Yes. To try to provide some funding such 

that we can establish centers for fingerprint examiners and firearm 

examiners to go through a college such that when they come out, 

that they would be able to pass a CTS, a collaborative testing program proficiency test. Now, that would get them up to a point, but 

they would still need further in-house training in the laboratory. 

Okay. So that is—— 

Senator SESSIONS. Does that exist today? I mean, how does a fingerprint person who comes out of college and they want to be a fingerprint analyst, where do they get trained? 

Dr. BUEL. What we do in forensics, is we steal one from the other 

laboratory. 

32 

[Laughter.] 

Dr. BUEL. And it’s unfortunate. We just stole one from Chicago. 

Hopefully we won’t have somebody steal one from us. But it’s a 

very small group. It’s a lot of on-the-job training that takes a couple of years to do. But there could be educational programs that 

allow individuals to come out with, perhaps, a 5-year degree, able 

to do at least the basics and have the understanding to do a proficiency test. That would not prepare them to do casework, but that 

would prepare them to do in-house training. 

Senator SESSIONS. Chief Hurtt. 

Chief HURTT. Thank you, Madam Chair and Senator Sessions. I 

listened to the conversation about more, I guess, training in fingerprints and trace evidence and firearms to ensure that we’re doing 

a good job in identifying suspects. In my 40-plus years of law enforcement, I’ve found DNA to be the best source, or dependable 

source, of identifying the suspect in criminal cases. Last year, myself—— 

Senator SESSIONS. If you have it and the scientific analysis is 

good, reliable. 

Chief HURTT. Yes. But I think, with major cities, counties, and 

State labs and FBI labs, small jurisdictions should have access to 

DNA. Whether they have to send it to the Federal, the State, or 

one of the major cities in this country, there should be access to 

DNA. Last year, I’m going to share with you, myself and several 

of my staff members made a trip to the U.K. to visit their crime 

lab, as far as DNA, and also to visit new Scotland Yard. 

At Scotland Yard, they have used DNA for the identification of 

property suspects, burglary suspects. They’ve used skin cells and 

also information that they gained because the person left prints at 

the scene, whether it was fluids or skin cells. Their detection rate 

of suspects increased from 15 percent to 50 percent. 

Now, is it a good investment of our time to continue to train people in being able to do fingerprint identification or should we move 

the practice toward using DNA or touch-DNA to solve problems or 

property crimes? I would submit, the best process would be, move 

toward using DNA to solve property crimes as well as violent 

crimes. 

Senator SESSIONS. Good point. 

Madam Chairman, I would just say that to me, we give billions 

of dollars to the Department of Justice. I don’t know why they’re 

not working on this anyway. I mean, you have to go over there, the 

police chief of Houston. It seems to me the Department should be 

on top of all these issues, cutting-edge technology, providing what 

does work, what is reliable, what’s not reliable, and feel that they 

are a resource, a supportive entity with the best science available, 

to our local and State law enforcement. To me, I’ve always felt a 

bit blase ́ about that. The National Institute of Justice and Bureau 

of Justice Statistics provide a lot of valuable information, but I 

think we could do a better job of getting into that. 

Mr. Chairman, I would offer for the record the Corsican Daily 

Sun. Senator Cornyn had provided that to me. He was not able to 

be here at this hearing and he wanted it made a part of the record, 

and I would offer that. 

33 

Senator KLOBUCHAR. Without objection, it will be included in the 

record. 

[The article appears as a submission for the record.] 

Senator KLOBUCHAR. All right. Well, I wanted to thank all of you 

for being here today, and especially for Mr. Brown, for sitting 

through this hearing and everything that you’ve had to endure. I 

want to thank you for your courage in being here. Also, just to 

point out again, I do think that we have some common agreement 

on the need to move forward here with some of the recommendations from this report. 

Again, we will work out the details and we will work with all of 

the groups involved here. That’s how we like to get things done. 

But I will stress again that I have found some common ground 

with prosecutors, defense lawyers, and police, that we always want 

to get the right person, if for no other reason than the person who 

committed the crime is still out there, not to mention, no one wants 

to put an innocent person behind bars. So I think that there’s good 

reason to move forward here. This has been a very helpful hearing. 

Thank you very much. 

We are adjourned. 

[Whereupon, at 12:02 p.m., the Committee was adjourned.] 

[Questions and answers and submissions follow.] 

34 


54720.001
35 


54720.002
36 


54720.003
37 


54720.004
38 


54720.005
39 


54720.006
40 


54720.007
41 


54720.008
42 


54720.009
43 


54720.010
44 


54720.011
45 


54720.012
46 


54720.013
47 


54720.014
48 


54720.015
49 


54720.016
50 


54720.017
51 


54720.018
52 


54720.019
53 


54720.020
54 


54720.021
55 


54720.022
56 


54720.023
57 


54720.024
58 


54720.025
59 


54720.026
60 


54720.027
61 


54720.028
62 


54720.029
63 


54720.030
64 


54720.031
65 


54720.032
66 


54720.033
67 


54720.034
68 


54720.035
69 


54720.036
70 


54720.037
71 


54720.038
72 


54720.039
73 


54720.040
74 


54720.044
75 


54720.045
76 


54720.046
77 


54720.041
78 


54720.042
79 


54720.043
80 


54720.047
81 


54720.048
82 


54720.049
83 


54720.050
84 


54720.051
85 


54720.052
86 


54720.053
87 


54720.054
88 


54720.055
89 


54720.056
90 


54720.057
91 


54720.058
92 


54720.059
93 


54720.060
94 


54720.061
95 


54720.062
96 


54720.063
97 


54720.064
98 


54720.065
99 


54720.066
100 


54720.067
101 


54720.068
102 


54720.069
103 


54720.070
104 


54720.071
105 


54720.072
106 


54720.073
107 


54720.074
108 


54720.075
109 


54720.076
110 


54720.077
111 


54720.078
112 


54720.079
113 


54720.080
114 


54720.081
115 


54720.082
116 


54720.083
117 


54720.084
118 


54720.085
119 


54720.086
120 


54720.087
121 


54720.088
122 


54720.089
123 


54720.090
124 


54720.091
125 


54720.092
126 


54720.093
127 


54720.094
128 


54720.095
129 


54720.096
130 


54720.097
131 


54720.098
132 


54720.099
133 


54720.100
134 


54720.101
135 


54720.102
136 


54720.103
137 


54720.104
138 


54720.105
139 


54720.106
140 


54720.107
141 


54720.108
142 


54720.109
143 


54720.110
144 


54720.111
145 


54720.112
146 


54720.113
147 


54720.114
148 


54720.115
149 


54720.116
150 


54720.117
151 


54720.118
152 


54720.119
153 


54720.120
154 


54720.121
155 


54720.122
156 


54720.123
157 


54720.124
158 


54720.125
159 


54720.126
160 


54720.127
161 


54720.128
162 


54720.129
163 


54720.130
164 


54720.131
165 


54720.132
166 


54720.133
167 


54720.134
168 


54720.135
169 


54720.136
170 


54720.137
171 


54720.138
172 


54720.139
173 


54720.140
174 


54720.141
175 


54720.142
176 


54720.143
177 


54720.144
178 


54720.145
179 


54720.146
180 


54720.147
181 


54720.148
182 


54720.149
183 


54720.150
184 


54720.151
185 


54720.152
186 


54720.153
187 


54720.154
188 


54720.155
189 


54720.156
190 


54720.157
191 


54720.158
192 


54720.159
193 


54720.160
194 


54720.161
195 


54720.162
196 


54720.163
197 


54720.164
198 


54720.165
199 

Æ 


54720.166