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STRENGTHENING FORENSIC SCIENCE

IN THE UNITED STATES: THE ROLE

OF THE NATIONAL INSTITUTE OF

STANDARDS AND TECHNOLOGY

HEARING

BEFORE THE

SUBCOMMITTEE ON TECHNOLOGY AND INNOVATION

COMMITTEE ON SCIENCE AND

TECHNOLOGY

HOUSE OF REPRESENTATIVES

ONE HUNDRED ELEVENTH CONGRESS

FIRST SESSION

MARCH 10, 2009

Serial No. 111–8

Printed for the use of the Committee on Science and Technology

(

Available via the World Wide Web: http://www.science.house.gov

(II)

COMMITTEE ON SCIENCE AND TECHNOLOGY

HON. BART GORDON, Tennessee, Chair

JERRY F. COSTELLO, Illinois

EDDIE BERNICE JOHNSON, Texas

LYNN C. WOOLSEY, California

DAVID WU, Oregon

BRIAN BAIRD, Washington

BRAD MILLER, North Carolina

DANIEL LIPINSKI, Illinois

GABRIELLE GIFFORDS, Arizona

DONNA F. EDWARDS, Maryland

MARCIA L. FUDGE, Ohio

BEN R. LUJA ́ N, New Mexico

PAUL D. TONKO, New York

PARKER GRIFFITH, Alabama

STEVEN R. ROTHMAN, New Jersey

JIM MATHESON, Utah

LINCOLN DAVIS, Tennessee

BEN CHANDLER, Kentucky

RUSS CARNAHAN, Missouri

BARON P. HILL, Indiana

HARRY E. MITCHELL, Arizona

CHARLES A. WILSON, Ohio

KATHLEEN DAHLKEMPER, Pennsylvania

ALAN GRAYSON, Florida

SUZANNE M. KOSMAS, Florida

GARY C. PETERS, Michigan

VACANCY

RALPH M. HALL, Texas

F. JAMES SENSENBRENNER JR.,

Wisconsin

LAMAR S. SMITH, Texas

DANA ROHRABACHER, California

ROSCOE G. BARTLETT, Maryland

VERNON J. EHLERS, Michigan

FRANK D. LUCAS, Oklahoma

JUDY BIGGERT, Illinois

W. TODD AKIN, Missouri

RANDY NEUGEBAUER, Texas

BOB INGLIS, South Carolina

MICHAEL T. MCCAUL, Texas

MARIO DIAZ-BALART, Florida

BRIAN P. BILBRAY, California

ADRIAN SMITH, Nebraska

PAUL C. BROUN, Georgia

PETE OLSON, Texas

SUBCOMMITTEE ON TECHNOLOGY AND INNOVATION

HON. DAVID WU, Oregon, Chair

DONNA F. EDWARDS, Maryland

BEN R. LUJA ́ N, New Mexico

PAUL D. TONKO, New York

DANIEL LIPINSKI, Illinois

HARRY E. MITCHELL, Arizona

GARY C. PETERS, Michigan

BART GORDON, Tennessee

ADRIAN SMITH, Nebraska

JUDY BIGGERT, Illinois

W. TODD AKIN, Missouri

PAUL C. BROUN, Georgia

RALPH M. HALL, Texas

MIKE QUEAR Subcommittee Staff Director

MEGHAN HOUSEWRIGHT Democratic Professional Staff Member

TRAVIS HITE Democratic Professional Staff Member

PIPER LARGENT Republican Professional Staff Member

VICTORIA JOHNSTON Research Assistant

(III)

C O N T E N T S

March 10, 2009

Page

Witness List ............................................................................................................. 2

Hearing Charter ...................................................................................................... 3

Opening Statements

Statement by Representative David Wu, Chair, Subcommittee on Technology

and Innovation, Committee on Science and Technology, U.S. House of Representatives ........................................................................................................... 5

Written Statement ............................................................................................ 5

Statement by Representative Adrian Smith, Ranking Minority Member, Subcommittee on Technology and Innovation, Committee on Science and Technology, U.S. House of Representatives ............................................................... 6

Written Statement ............................................................................................ 6

Prepared Statement by Representative Harry E. Mitchell, Member, Subcommittee on Technology and Innovation, Committee on Science and Technology, U.S. House of Representatives ............................................................... 7

Prepared Statement by Representative Paul C. Broun, Member, Subcommittee on Technology and Innovation, Committee on Science and Technology, U.S. House of Representatives ............................................................... 7

Witnesses:

Mr. Peter M. Marone, Director, Virginia Department of Forensic Science

Oral Statement ................................................................................................. 8

Written Statement ............................................................................................ 10

Biography .......................................................................................................... 14

Ms. Carol E. Henderson, Director, National Clearinghouse for Science, Technology and the Law; Professor of Law, Stetson University College of Law;

Past President, The American Academy of Forensic Sciences

Oral Statement ................................................................................................. 14

Written Statement ............................................................................................ 17

Biography .......................................................................................................... 19

Mr. John W. Hicks, Director, Office of Forensic Services, New York State

Division of Criminal Justice Services (Ret.); Former Director, FBI Laboratory

Oral Statement ................................................................................................. 20

Written Statement ............................................................................................ 22

Biography .......................................................................................................... 23

Dr. James C. Upshaw Downs, Forensic Pathologist/Consultant, Coastal Regional Medical Examiner, Georgia Bureau of Investigation

Oral Statement ................................................................................................. 24

Written Statement ............................................................................................ 26

Biography .......................................................................................................... 31

Mr. Peter J. Neufeld, Co-Founder and Co-Director, The Innocence Project

Oral Statement ................................................................................................. 32

Written Statement ............................................................................................ 34

Biography .......................................................................................................... 53

Discussion ................................................................................................................. 54

Page

IV

Appendix 1: Answers to Post-Hearing Questions

Mr. Peter M. Marone, Director, Virginia Department of Forensic Science ........ 82

Ms. Carol E. Henderson, Director, National Clearinghouse for Science, Technology and the Law; Professor of Law, Stetson University College of Law;

Past President, The American Academy of Forensic Sciences ......................... 85

Mr. John W. Hicks, Director, Office of Forensic Services, New York State

Division of Criminal Justice Services (Ret.); Former Director, FBI Laboratory ........................................................................................................................ 87

Dr. James C. Upshaw Downs, Forensic Pathologist/Consultant, Coastal Regional Medical Examiner, Georgia Bureau of Investigation ............................. 89

Mr. Peter J. Neufeld, Co-Founder and Co-Director, The Innocence Project ....... 96

Appendix 2: Additional Material for the Record

Letter to Chair David Wu and Subcommittee Members from Joseph I.

Cassilly, President, National District Attorneys Association, dated March

9, 2009 ................................................................................................................... 128

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STRENGTHENING FORENSIC SCIENCE IN THE

UNITED STATES: THE ROLE OF THE NATIONAL INSTITUTE OF STANDARDS AND

TECHNOLOGY

TUESDAY, MARCH 10, 2009

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON TECHNOLOGY AND INNOVATION,

COMMITTEE ON SCIENCE AND TECHNOLOGY,

Washington, DC.

The Subcommittee met, pursuant to call, at 10:00 a.m., in Room

2318 of the Rayburn House Office Building, Hon. David Wu [Chair

of the Subcommittee] presiding.

2

3

HEARING CHARTER

SUBCOMMITTEE ON TECHNOLOGY AND INNOVATION

COMMITTEE ON SCIENCE AND TECHNOLOGY

U.S. HOUSE OF REPRESENTATIVES

Strengthening Forensic Science

in the United States: The Role

of the National Institute of

Standards and Technology

TUESDAY, MARCH 10, 2009

10:00 A.M.–12:00 P.M. 2318 RAYBURN HOUSE OFFICE BUILDING

I. Purpose

On Tuesday, March 10, 2009, the Subcommittee on Technology and Innovation

will convene a hearing to review the scientific and technical issues raised by the

recently released National Academies report Strengthening Forensic Science in the

United States: A Path Forward. The hearing will discuss issues related to the accuracy, standards, reliability, and validity of forensic science, as well as how the expertise of the National Institute of Standards and Technology (NIST) in forensics

related research, developing standards and certified test methodologies, and performing laboratory accreditation may be leveraged to implement some of the recommendations in the report.

II. Witnesses

Mr. Pete Marone is the Director of Technical Services at the Virginia Department

of Forensic Science.

Ms. Carol Henderson is the Director of the National Clearing House for Science,

Technology and the Law; a Professor of Law at Stetson University College of Law;

and the Past President at the American Academy of Forensic Sciences.

Mr. John Hicks is the retired Director of the Office of Forensic Services,

New York State Division of Criminal Justice Services; and the former Director at the FBI Laboratory.

Mr. Peter J. Neufeld is the Co-Founder and Co-Director of the Innocence Project.

Dr. J.C. Upshaw Downs is the Coastal Regional Medical Examiner at the Georgia

Bureau of Investigation.

III. Issues and Concerns

Prompted by concerns over the reliability and variability of forensic evidence, the

National Academy of Sciences Committee on Identifying the Needs of the Forensic

Science Community recently completed a study on the status of the Nation’s crime

labs, Strengthening Forensic Science in the United States: A Path Forward. The committee found that many of the techniques and technologies used in forensic science

lack rigorous scientific discipline. In addition, the committee reported a lack of

standard accreditation processes for individual labs and the technicians who collect

and process evidence.

The committee recommended that a new agency, separate from the legal and law

enforcement communities, be created to provide oversight to correct these inconsistencies which impact the accuracy, reliability, and validity of forensic evidence. Many

of the functions envisioned by the report committee for this new agency already are,

or could be, performed at NIST. These activities include standards setting, the creation of validated test methodologies, and the development of standard practices. Indeed, the report recommends this new agency specifically work with NIST in several

areas.

The report committee notes that on two fronts the forensic disciplines lack consistent science. The first concern is that different forensic disciplines vary in the deVerDate 11-MAY-2000 14:26 Jun 13, 2009 Jkt 047720 PO 00000 Frm 00007 Fmt 6633 Sfmt 6621 C:\DWORK\T&I09\031009\47720 SCIENCE1 PsN: SCIENCE1
4

gree to which they are based on a well-tested, rigorous scientific methodology. For

instance, whereas the methodology for fingerprint identification is scientifically

proven, the analysis of other forensic evidence, like bite-mark comparisons, does not

follow a prescribed and scientifically verified methodology. The second issue with

consistency is the degree to which some disciplines rely on inexact interpretation to

reach their findings and report their conclusions. This is evident in the practice of

identifying partial or smudged fingerprints, when practitioners rely on judgment, instead of a reliable scientific methodology, which can introduce human error and

bias. Furthermore, there is no consistent scale or nomenclature to report these types

of findings. For example, the exact same finding could be reported as ‘‘a match’’ in

one jurisdiction or ‘‘consistent with’’ in another jurisdiction.

IV. Background

DNA evidence has been widely used in the legal system for many years. DNA’s

accepted use in this capacity stems from the fact that it has been rigorously shown

to identify, with a high degree of certainty, a connection between evidence and an

individual of interest. This certainty can be traced back to efforts of NIST on the

development of both the test methodologies for DNA analysis and the standard reference materials that can be used for laboratory as well as test certification. There

are other common techniques used by forensic scientists such as fingerprint analysis, ballistic tests, hair matching, pattern recognition, and paint matching that

could benefit from a robust research and development program. Many of these techniques based on observation, experience, and reasoning lack validation on their accuracy and reliability. Because of these shortcomings, many of the forensic tests can

have high error rates. To resolve these issues, additional research and experimental

testing detailing the reliability of the methods is required.

Lack of Federal Standards

The forensic science community includes crime scene investigators, State and local

crime laboratories, medical examiners, private forensic laboratories, and law enforcement identification units. They may use registries of information, databases for

matching, or reference materials for comparisons of evidence. The registries need a

common interface to aid in training and accessibility for all users in the community.

The databases need to be inter-operable to allow for communication between different sources. In addition, reference materials must be standardized so that test

equipment can all be calibrated to an accurate and reliable level. Currently there

are no clear and consistent standards for the forensic community to apply the tools

available to them; instead there are many different methodologies with no single

certification method for practitioners. Without clear and measurable standards for

all forensic science disciplines, not just DNA analysis, it is impossible to assess

whether one organization is properly conducting analyses. In addition, it is difficult

to ascertain the validity of a specific forensic science methodology. The report recommends that standards need to be set for all facets of forensic science and a certification program needs to be developed for both the practitioners and laboratories.

5

Chair WU. Good morning. The hearing will now come to order.

I want to welcome everyone to this morning’s hearing. The spur

for this hearing was the release of a recent National Academy of

Sciences report, Strengthening Forensic Science in the United

States: A Path Forward. This report makes a number of recommendations on how to improve forensic science in the United

States and many of the recommendations ask for research that

supports forensic science and for standards and accreditation to ensure the validity, accuracy and reliability of forensic science testing.

The purpose of today’s hearing is to determine whether we can

build on the resources and expertise at the National Institute of

Standards and Technology (NIST) to implement some of the report’s recommendations. The report suggests creating an entirely

new department to govern forensics issues and calls for this new

agency to work with NIST. Given our current economic climate and

other constraints, I would first like to explore how we can build

upon and improve existing federal capabilities rather than trying

to create a whole new governmental structure. We have all learned

from the experience of creating the Department of Homeland Security that legislatively providing for a new agency is far easier and

far different than from executing on the actual implementation of

the new agency.

I fully support the goal of the report to improve forensic science

in the United States. The popular television show, ‘‘Crime Scene

Investigation,’’ or CSI, has raised public awareness and expectation

of the role of forensic science in helping us to solve crimes. However, the show depicts the practice of forensics in a manner that

is far different from the current state of technology or our methodology. I hope that this hearing is a first step in bringing reality into

better alignment with the high expectations created by our entertainment industry.

We have an experienced and distinguished panel of witnesses

today. I want to thank each of you for taking the time to appear

before the Subcommittee and I look forward to hearing your views

and advice on how to move forward from here. We all want to support law enforcement and judicial process by providing the best forensic science base available.

Now I would like to recognize the Ranking Member of the Subcommittee, Representative Smith, for his opening statement.

[The prepared statement of Chair Wu follows:]

PREPARED STATEMENT OF CHAIR DAVID WU

Good morning. I want to welcome everyone to this morning’s hearing. The spur

for this hearing was the release of a recent National Academy of Sciences report:

‘‘Strengthening Forensic Science in the United States: A Path Forward.’’ This report

makes a number of recommendations on how to improve forensic science in the

United States. Many of the recommendations ask for research that supports forensic

science and for standards and accreditation to ensure the validity, accuracy, and reliability of forensic science testing.

The purpose of today’s hearing is to determine whether we can build on the resources and expertise at the National Institute of Standards and Technology to implement some of the report’s recommendations. The report suggests creating an entirely new department to govern forensics issues and calls for this new department

to work with NIST. Given the current economic climate I would like to explore how

we can build upon and improve existing federal capabilities rather than trying to

create a whole new government structure. We have all learned from the creation

6

of the Department of Homeland Security that legislating a new agency is far easier

than executing on the implementation of the new agency.

I fully support the goal of the report to improve forensic science in the United

States. The popular television show ‘‘Crime Scene Investigation,’’ better known as

CSI, has raised public awareness and expectation of the role of forensic science in

solving crimes; however, the show depicts the practice of forensics in a manner that

is far different from the current state of technology. I hope this hearing is a first

step in moving from entertainment to reality.

We have an experienced and distinguished panel of witnesses today who all have

important and busy jobs. I want to thank them for taking the time to appear before

the Subcommittee today. I look forward to hearing their views and advice on how

to move the process forward. We all want to support our law enforcement and judicial processes by providing them with the best forensic science base possible.

Mr. SMITH. Mr. Chair, thank you for holding this hearing today

on the very important issue of forensic science. Many, if not most,

of the issues we undertake in this subcommittee have direct implications well beyond our scientific and technological enterprise. Forensic science is no different but it is certainly of particular unique

importance in that it is a key factor in the fundamental functioning

of our justice system. This importance has only increased in recent

years through the advancement of new technologies that have enabled forensics to contribute a growing amount of information to

law enforcement investigations as well as courtroom proceedings.

These advances undoubtedly improved our ability to not only identify and convict the guilty but also, very importantly, exclude the

innocent. However, as the National Academy of Sciences’ [NAS] report on strengthening forensic science demonstrates, continued improvement is necessary to maximize the quality of and our corresponding confidence in forensic evidence that is used in the courtroom. The NAS report’s core finding, that many forensic disciplines

are in need of more rigorous scientific review to validate their accuracy and reliability, is very serious and requires the full and immediate attention of Congress, the justice system and certainly the forensic science community.

But it is important to remember the absence of rigorous scientific

underpinning in many forensic disciplines does not mean these

methods are inaccurate or unreliable. Accordingly, I think it is important to recognize the enormous value forensic evidence provides

to the justice system, even in the absence of full scientific validation, and accordingly exercise caution to ensure we are not overly

dismissive of forensic evidence.

The immediate focus of this hearing today, however, is to review

the scientific and technical recommendations of the NAS report and

discuss how they can best be addressed, particularly through the

National Institute of Standards and Technology, which has the programs and expertise to be a key driver of improvements in forensic

science.

I thank the witnesses for being here today, and I look forward

to a productive discussion.

[The prepared statement of Mr. Smith follows:]

PREPARED STATEMENT OF REPRESENTATIVE ADRIAN SMITH

Mr. Chairman, thank you for holding this hearing today on the very important

issue of forensic science. Many if not most of the issues we undertake in this subcommittee have direct implications well beyond our scientific and technological enterprise. Forensic science is no different, but it is of particularly unique importance

in that it is a key factor in the fundamental functioning of our justice system.

7

This importance has only increased in recent years through the advancement of

new technologies that have enabled forensics to contribute a growing amount of information to law enforcement investigations as well as courtroom proceedings. These

advances have undoubtedly improved our ability to not only identify and convict the

guilty, but also exclude the innocent.

However, as the National Academy of Sciences report on strengthening forensic

science demonstrates, continued improvement is necessary to maximize the quality

of—and our corresponding confidence in—forensic evidence that is used the courtroom. The NAS report’s core finding—that many forensic disciplines are in need of more

rigorous scientific review to validate their accuracy and reliability—is very serious,

and requires the full and immediate attention of Congress, the justice system, and

the forensic science community.

But it is important to remember the absence of rigorous scientific underpinning

in many forensic disciplines does not mean these methods are inaccurate or unreliable; it simply means they are in need of evaluation. Accordingly, I think it is important to recognize the enormous value forensic evidence provides to the justice

system even in the absence of full scientific validation, and accordingly exercise caution to ensure we are not overly dismissive of forensic evidence.

The immediate focus of this hearing today, however, is to review the scientific and

technical recommendations of the NAS report and discuss how they can best be addressed, particularly through the National Institute of Standards and Technology,

which has the programs and expertise to be a key driver of improvements in forensic science.

I thank the witnesses for being here, and I look forward to a productive discussion.

Mr. SMITH. One final item, Mr. Chair. I do have a letter from the

National District Attorneys’ Association, and with unanimous consent I ask that it be included in the record. [See Appendix 2: Additional Material for the Record.]

Chair WU. Without objection, so ordered.

Mr. SMITH. Thank you, Mr. Chair.

Chair WU. Thank you, Mr. Smith.

If there are other Members who wish to submit additional opening statements, your statements will be included in the record at

this point.

[The prepared statement of Mr. Mitchell follows:]

PREPARED STATEMENT OF REPRESENTATIVE HARRY E. MITCHELL

Thank you, Mr. Chairman.

Today we will discuss issues related to the accuracy, standards, reliability, and

validity of forensic science and how the National Institutes of Standards and Technology can play a role in developing standards and certified test methodologies related to forensic science.

According to Strengthening Forensic Science in the United States: A Path Forward, a study conducted by the National Academy of Sciences Committee on Identifying the Needs of the Forensic Science Community, many of the techniques and

technologies utilized in forensic science lack rigorous scientific discipline.

Furthermore, this study also found that individual labs and the technicians who

collect and process evidence do not utilize consistent and standard accreditation

methods.

I look forward to hearing more from our witnesses on how NIST can play a role

in the standardization of forensic science methodology.

I yield back.

[The prepared statement of Mr. Broun follows:]

PREPARED STATEMENT OF REPRESENTATIVE PAUL C. BROUN

Good Morning. I’d like to thank Chairman Wu and Ranking Member Smith for

hosting this important hearing. I’d also like to join them and the rest of my colleagues in welcoming our esteemed guests. The National Academy of Sciences recent

report: ‘‘Strengthening Forensic Science in the United States: A Path Forward,’’ set

forth numerous ideas to improve the forensic sciences including upgrading our systems and organizational structures, better training, widespread adoption of uniform

8

and enforceable best practices, and mandatory certification and accreditation programs. These are all reasonable and necessary recommendations which would go a

long way toward improving forensic science in the United States and I applaud the

members of the National Academies for their diligence and hard work in assembling

this report as we look to improve the reliability and accuracy of forensic testing.

As a scientist, I value truth above all else. I believe a vital component of our judicial system should be to provide a means of forensic testing that is beyond reproach

in its accuracy and is uniform in its application. It is of a vital national interest

that our forensic science techniques and procedures be as close to perfect as possible. It’s a shame that forensic evidence has been misinterpreted in that past and

resulted in innocent people being jailed unjustly, or conversely in the guilty being

set free. So I stress that it is absolutely vital that we continue to commit resources

towards furthering forensics with specific goals of one day reaching 100 percent accuracy and of broadening the applications for its use.

However, I must join with the Chairman in my skepticism of creating an entirely

new department to oversee this venture. Not only is it rarely ever a good idea for

the Federal Government to create a new bureaucracy, as the Chairman has already

stated, but in my view it is unconstitutional to do so, as nowhere in the documents

our Founding Fathers penned do they afford Congress that power. Instead, I believe

that we should look to individual states to set uniform standards for use within

their borders, or expanding the resources available to NIST and authorizing them

to formulate and set new standards and to test current and potential forensic

science techniques which may be even more beneficial to the pursuit of truth into

the future. Any move to federalize forensic science is a move to stifle scientific freedom and in its place adopt more government control.

I look forward to hearing testimony from these many fine scientists who have graciously come before us today and I hope they can help us move towards our mutual

goal of strengthening forensic science and its applications in our criminal justice

system.

Thank you again for allowing me the time to speak today Mr. Chairman.

Chair WU. It is my pleasure to introduce our panel of witnesses.

Mr. Pete Marone is the Director of Technical Services at the Virginia Department of Forensic Science. Ms. Carol Henderson is the

Director of the National Clearinghouse for Science, Technology and

the Law. She is also a Professor of Law at Stetson University College of Law and the Past President of the American Academy of Forensic Sciences. Mr. John Hicks is the retired Director of the Office

of Forensic Services at the New York State Division of Criminal

Justice Services and the former Director of the FBI Laboratory. Dr.

Jamie Downs is the Coastal Regional Medical Examiner at the

Georgia Bureau of Investigation. And our final witness is Mr. Peter

Neufeld, who is the Co-Founder and Co-Director of the Innocence

Project.

Mr. Marone, if you would like to proceed, you will each have five

minutes for your spoken testimony and your written testimony will

be included in the record. When you complete your testimony—all

of you complete your testimony—we will begin with questions and

each Member will have five minutes to question the panel. Mr.

Marone, please proceed.

STATEMENT OF MR. PETER M. MARONE, DIRECTOR, VIRGINIA

DEPARTMENT OF FORENSIC SCIENCE

Mr. MARONE. Thank you, Mr. Chair, Ranking Member Smith. It

is certainly a pleasure, and I appreciate the opportunity to speak

to this committee. My name is Peter Marone and I have gotten a

promotion since then. I am Director of the Commonwealth of Virginia’s Department of Forensic Science now and was a member of

the committee identifying the needs of the forensic science community. Of course, this was a study that NIJ [National Institute of

Justice] funded at the request of the Senate Appropriations ComVerDate 11-MAY-2000 14:26 Jun 13, 2009 Jkt 047720 PO 00000 Frm 00012 Fmt 6633 Sfmt 6601 C:\DWORK\T&I09\031009\47720 SCIENCE1 PsN: SCIENCE1
9

mittee but it was really requested quite heavily by the forensic

science community to make it happen.

In the testimony today, what I would like to do is shorten and

simplify all the recommendations of the committee and specify or

spend the time on four particular issues and the full potential of

the program, broken into scientific and technical challenges that

must be met in order for forensic science enterprise to reach its full

potential. I would like to break it into four categories, the first

being funding, resources, if you will, research, standardization, and

education.

The first element really is probably one of the most important,

and it was not specifically addressed as a recommendation by the

committee, and that is the resource issue. Although we didn’t address it as a particular criteria, it was very, very understood by the

committee that for the State and local laboratories there was a lack

of resources, whether it be money, staffing, training or equipment

necessary to promote and maintain strong forensic science systems.

As you are acutely aware right now, states are now in a fiscal crisis. I would submit that laboratories and medical examiners’ offices

have been in a fiscal crisis for a number of years. This is nothing

new for us. Further, the funding from the Federal Government has

really been focused overwhelmingly to one discipline, and that is

DNA. What I would like to say as an individual is, make it very

clear that we are asking for funding for the full breadth of the forensic science disciplines but not to the exclusion of DNA. In other

words, we are saying very clearly, don’t take the DNA money and

give it to everybody else, keep all the disciplines funded and supported. I want to make that very, very clear because in a lot of

issues that is a misunderstanding.

Under the category of research, the committee determined that

the forensic science disciplines need further research to provide the

proper underlying validation for some of the methods in use and

to provide the basis for more precise statements about their reliability and precision. The report clearly states that there is a value

in many of the disciplines addressed that the forensic science community itself has been stating for more than a decade. In order to

accomplish this we need more funding for research and a stronger,

broader research base. Disciplines based on biological or chemical

analysis such as toxicology, drug analysis, some trace-evidence disciplines such as explosives, fire debris, paint and fiber analysis are

all well validated and shouldn’t be in the same category as the experience-based disciplines such as fingerprints, firearms and tool

marks and other pattern recognition types of analysis. We need

studies, for instance, that look on a large population of fingerprints

and tool marks just to qualify how many sources might share similar features. Similarly, we need more research on the issues of context effect and examiner bias.

In standardization, for example, one of the issues was that laboratories need to be mandatorily accredited. During our reviews,

we found that there are approximately 400 laboratories—publicly

funded laboratories in the United States, but 320 of them are already accredited so it is not like the laboratories aren’t espousing

this idea, and the same thing for the not-mandatory certification.

10

There are a significant number of individuals who are voluntarily

being certified.

The primary conclusion was that the forensic science enterprise

doesn’t have a unified plan. It needs strong, fresh, national direction. Strong leadership is needed to adopt and promote aggressive

long-term agenda to strengthen forensic science. Our report strongly urges Congress to establish a new independent institute of forensic science to lead the research efforts, establish and enforce standards for forensic science professionals, and oversee education. Now,

I understand that NIST [National Institute of Standards and Technology] serves that purpose to a certain extent and we all agree

that NIST does serve a very important purpose. It does have expertise in standardization and experience in a number of those types

of issues for establishing coherent laboratory practices and reporting professionalism, codes of ethics and so forth. What NIST

doesn’t have is all the package, and as the committee reviewed all

the existing entities, nobody has the global experience necessary to

complete the package, to give all the planning. There are bits and

pieces in every one of them, nobody has that, and the key is that

whatever entity this is has to be something that is new in the

sense that the fear is if you put it in an existing entity or under

an existing agency, they will tend to create the new entity in their

own image and likeness, if you will. In other words, they will continue doing things the way they do, and what we really need is

fresh thinking, new thoughts, new issues to be addressed.

I will finish up quite quickly here now. Mr. Chair and Members

of the Committee, I would like to thank you for the opportunity to

come here today. I would like to conclude by quoting a part of our

study which I believe is one of the most important statements and

findings we had. ‘‘Numerous professionals in the forensic science

community and the medical examiner system worked for years to

achieve excellence in their fields, aiming to follow high ethical

norms, develop sound professional standards, ensure accurate results in their practices and improve the processes by which accuracy is determined. Although the work of these dedicated professionals has resulted in significant progress in the forensic science

disciplines in recent decades, major challenges still face the forensic science community.’’

I thank you for your time. I will be pleased to answer any questions you have.

[The prepared statement of Mr. Marone follows:]

PREPARED STATEMENT OF PETER M. MARONE

Good morning, Mr. Chairman and Members of the Committee. My name is Pete

Marone. I am Director of the Commonwealth of Virginia’s Department of Forensic

Sciences and a member of the Committee on Identifying the Needs of the Forensic

Science Community of the National Research Council. The Research Council is the

operating arm of the National Academy of Sciences, National Academy of Engineering, and the Institute of Medicine of the National Academies, chartered by Congress

in 1863 to advise the government on matters of science and technology. Our study

was sponsored by the National Institute of Justice at the request of the Senate Appropriations Committee.

This study, as you know, was requested by Congress at the urging of the Crime

Lab Community itself. The charge was (1) assess the present and future resource

needs of the forensic science community, to include State and local crime labs, medical examiners, and coroners; (2) make recommendations for maximizing the use of

forensic technologies and techniques to solve crimes, investigate deaths, and protect

11

the public; (3) identify potential scientific advances that may assist law enforcement

in using forensic technologies and techniques to protect the public; (4) make recommendations for programs that will increase the number of qualified forensic scientists and medical examiners available to work in public crime laboratories; (5) disseminate best practices and guidelines concerning the collection and analysis of forensic evidence to help ensure quality and consistency in the use of forensic technologies and techniques to solve crimes, investigate deaths, and protect the public;

(6) examine the role of the forensic community in the homeland security mission;

(7) [examine the] inter-operability of Automated Fingerprint Information Systems;

and (8) examine additional issues pertaining to forensic science as determined by

the Committee. The reason the community asked for this study was due to the fact

that the focus of the Federal Government has been on the single discipline of DNA.

The community, including myself, knew that the other disciplines and the state of

our system needed to have further resources and assistance from the Federal Government. In my testimony today I will simplify, due to time, our report—Strengthening Forensic Science in the United States: A Path Forward—into the scientific and

technical challenges that must be met in order for the forensic science enterprise

in the United States to operate to its full potential. Specifically, I will discuss them

in four classes of resources, research, standardization, and education, as these are

the primary challenges at this time. The report found that some of this work has

already been begun by forensic scientists, but that additional effort and coordination

are needed to carry it through.

The first element of the charge, while not specifically addressed in the form of

a recommendation, led to a clear committee understanding that in general, ‘‘for the

State and local laboratories there has been a lack of resources (money, staff, training, and equipment) necessary to promote and maintain strong forensic science laboratory systems.’’ As I know you are acutely aware, the states are in a fiscal crisis.

As a State Crime Lab Director I know that this has in fact been the situation for

some time. As such, the State and local Crime Labs and the Medical Examiner community have not been receiving the funds they need, but the case load has been increasing exponentially. Further, the funding from the Federal Government has been

focused overwhelmingly on the discipline of DNA, which is not our largest caseload.

The Congress has consistently put some funding in for the other disciplines but it

falls far short of what is necessary. I want to make it clear, Mr. Chairman, that

this is at the root of many of our issues and, speaking as an individual, I am asking

Congress to please put funding in at an adequate level for all of forensic science,

not just a single discipline.

Under the category of research, the committee determined that some of the forensic science disciplines need further research to provide what the scientific community commonly uses as the proper underlying validation for some of the methods in

common use and to provide the basis for more precise statements about their reliability and precision. Because a method has not been sufficiently validated does not

make it invalid. In order to accomplish this, we need more funding for research and

a stronger, broader research base. The disciplines based on biological or chemical

analysis, such as toxicology, drug analysis, and some trace evidence sub-disciplines

such as explosives, fire debris, polymers to include paint and fiber analysis, are generally well validated and should not be included in the same category as the more

experience-based disciplines, such as fingerprints, firearms and toolmarks, and

other pattern-recognition types of analysis. There are variations within this latter

group; for example, there is more available research and protocols for fingerprint

analysis than for bite marks. We need studies, for instance, that look at large populations of fingerprints and toolmarks so as to quantify how many sources might

share similar features. In addition to investigating the limits of the techniques

themselves, research is also needed on the effects of context and examiner bias.

In the realm of standardization and education our report raised concerns about

the lack of mandatory requirements for professional certification and for laboratory

accreditation and the variability in the way forensic science results are reported in

courts. I think it is critical to first understand that most in the forensic science community have already begun to move in the direction of accreditation; in fact the recently published Census of Publicly Funded Crime Laboratories, 2005 stated that by

2005, 82 percent of the public laboratories were accredited. That number is even

higher today. But more can be done. Our report calls for certification that is based

on written examinations, supervised practice, proficiency testing, and adherence to

a code of professional practice. The report explicitly calls for the National Institute

of Standards and Technology, NIST, in collaboration with the proposed National Institute of Forensic Science [NIFS] to be involved in setting standards for certification and accreditation and in developing protocols and best practices for forensic

analysis, using existing programs as a basis. Assisting laboratories which have not

12

yet been accredited is a lengthy process. Each policy and method must be reviewed

to determine if it is in compliance and, if not, what must be done to bring it into

compliance. This process can take a few years. That is not to say that the work done

by the laboratory is suspect during the process, but that the standards and criteria

are quite specific.

Our report’s primary conclusion is that the forensic science enterprise does not

have a unified plan and needs strong, fresh national direction. Strong leadership is

needed to adopt and promote an aggressive, long-term agenda to strengthen forensic

science. Our report strongly urges Congress to establish a new, independent National Institute of Forensic Science to lead research efforts, establish and enforce

standards for forensic science professionals and laboratories, and oversee education

standards. Our committee carefully considered whether such a governing body could

be established within an existing agency, and determined that it could not. While

we recognize the difficulty with this task, we believe that the root of the struggles

this community has is the lack of federal support and guidance.

However, while we were impressed with the technical abilities of three NIST

staffers who briefed our committee, and in fact had a NIST scientist as a member

of our committee, we concluded that NIST does not have expertise in enough of the

essential areas to play the governance role that forensic science needs. First, while

NIST has a strong reputation in some aspects of forensic science, it would not be

seen by that community as a natural leader. In large part that is because the context in which forensic science operates is unique. For example, forensic science must

make the most of whatever evidence has been collected, a situation that is not always amenable to prescriptive standards. And the recommended new federal entity

must be sensitive to the interplay between forensic sciences and the criminal justice

system, which is unfamiliar territory for NIST. Our report calls on the new entity

to lead an effort to remove public forensic laboratories from the administrative control of law enforcement agencies or prosecutors’ offices or be autonomous within

such agencies. That is likely to be a difficult task, one that requires knowledge of

relationships among those operations and between federal, State, and local jurisdictions. It is a challenge to which NIST is not well suited.

As I already indicated, a key recommendation of our report is to build up the research base and educational infrastructure that will enable forensic science to move

forward. NIST does not have much experience in establishing and running an extramural research program, and its ability to stimulate new academic forensic programs and strengthen existing ones is untested. Another key requirement is to

strengthen the practices of forensic science. While NIST has great expertise in establishing laboratory standards, it has not previously taken on a task similar to

what is required for forensic science: establishing a coherent set of standards for

laboratory practice, reporting, and professionalism (including codes of ethics), along

with standards and practices for laboratory accreditation and professional certification and incentives for their widespread adoption.

NIST does not have expertise in, and influence over, the medicolegal death investigation system, nor expertise in the issues that need to be addressed to strengthen

that system, a critical recommendation in our report.

However, the strongest reason for establishing a new independent entity is that

it could then be established according to the vision laid out in our report. If a new

institute is established as an arm of some existing entity, that entity will tend to

design it according to its own existing knowledge and experience, with whatever bureaucracy or biases that entails. As an example of this very issue, a draft copy of

a white paper from NIST, provided to me by the staff of this committee regarding

the establishment of a National Institute of Forensic Science within NIST, lists a

number of actions it proposes to answer the recommendations of the NAS report.

However, what was not addressed at all in that proposal was how the existing accreditation programs (both for laboratories and forensic science undergraduate and

graduate education programs), programs for certification of individuals, and the

technical protocols (although not mandatory) that are already in place through the

various scientific working groups (SWGs) and in use by many laboratories, would

serve as a basis for and be incorporated into the plan. There also was no indication

as to how laboratories would be supported in their efforts to meet these standards.

Mr. Chairman and Members of the Committee, I thank you for the opportunity

to come before you today. I’d like to conclude by quoting a part of our study which

I believe is one of the most important statements and findings we had:

‘‘Numerous professionals in the forensic science community and the medical examiner system have worked for years to achieve excellence in their fields, aiming to follow high ethical norms, develop sound professional standards, ensure

accurate results in their practices, and improve the processes by which accuracy

13

is determined. Although the work of these dedicated professionals has resulted

in significant progress in the forensic science disciplines in recent decades,

major challenges still face the forensic science community.’’

Again, thank you for your attention, and I will be pleased to answer questions.

14

BIOGRAPHY FOR PETER M. MARONE

B.S. Chemistry, University of Pittsburgh, 1970

M.S. Chemistry, University of Pittsburgh, 1971

Pete Marone began his forensic career at the Allegheny County Crime Laboratory

in 1971 and remained in Pittsburgh until 1978 when he accepted a position with

the Virginia Bureau of Forensic Science. In 1998 he became the Central Laboratory

Director with the Division. On February 1, 2007 he was appointed Director of the

Virginia Department of Forensic Science. He is a member of the American Society

of Crime Laboratory Directors (ASCLD), American Academy of Forensic Sciences,

Mid-Atlantic Association of Forensic Scientists, Forensic Science Society, and the

International Association for Chemical Testing. He has served on the ASCLD DNA

Credential Review Committee and as the chair of the undergraduate curriculum

committee of the Technical Working Group for Forensic Science Training and Education (TWGED), is a past Chair of ASCLD–LAB (Laboratory Accreditation Board).

He is a member of the Forensic Education Program Accreditation Commission

(FEPAC) for the American Academy of Forensic Sciences, and served on the National Academy of Sciences Committee on Identifying the Needs of the Forensic

Science Community. He is currently Chair of the Consortium of Forensic Science Organizations (CFSO).

Chair WU. Thank you, Mr. Marone.

Ms. Henderson, please proceed.

STATEMENT OF MS. CAROL E. HENDERSON, DIRECTOR, NATIONAL CLEARINGHOUSE FOR SCIENCE, TECHNOLOGY AND

THE LAW; PROFESSOR OF LAW, STETSON UNIVERSITY COLLEGE OF LAW; PAST PRESIDENT, THE AMERICAN ACADEMY

OF FORENSIC SCIENCES

Ms. HENDERSON. Thank you, Mr. Chair and Members of the Subcommittee. I was already introduced but I wanted to mention that

as the Director of the National Clearinghouse for Science, Technology and the Law, we have created the only searchable database

in the world of Raw science and technology information. As you

mentioned, I am also a Professor of Law and the immediate Past

President of the American Academy of Forensic Sciences, and in

fact, two of the officers of the Academy are here in the audience

today.

I was an Assistant United States Attorney with extensive experience; I was also a founder of the Florida Innocence Project; and I

have more than 20 years of involvement in teaching and scholarly

writing on the interface of science and law. I am well aware of the

15

importance of forensic science to the justice system and the nexus

between science and law is critical to forensic science. We therefore

have to recognize that the forensic overhaul which has been desired

by the NAS [National Academy of Sciences] committee with extensive work, and I did go to four of the five hearings that they had,

requires a collaboration of all the stakeholders: attorneys and

judges, crime laboratory and technical personnel and the civil expert witnesses as well.

I believe we have really been presented with an opportunity to

make forensic science serve justice even more reliably and effectively. This is the time to build better forensic science, but we must

be realistic in regard to the urgency of acting now and not permitting defects identified in the report to go unaddressed, yet we have

to make the best use of available resources and go forward in a

measured and considered manner that creates sound and lasting

systems. I am therefore recommending a three-step approach.

One is immediate action using existing federal resources to address scientific standards. Two, we need interim action which will

evaluate strategic policy decisions and strategies and explore innovative solutions. Vision is needed. And then a long-term goal of creating a National Institute of Forensic Sciences [NIFS] as envisioned by the [NAS] committee.

The urgent action, which I am going to go to first, is making the

best use of our existing resources. Many of the issues that were

identified in the report concern scientific foundation of disciplines

and subdisciplines in forensic science. The concerns range from,

and I quote, ‘‘Are these techniques fundamentally unsound’’ to,

while there is a body of evidence that the techniques are of value,

there is a lack of validation to the degree that has been established

in the introduction of DNA testing. There is an existing federal

agency well suited to the task, namely the National Institute of

Standards and Technology [NIST]. This is where we can begin.

NIST has a national role in promoting scientific standards and has

made significant contributions to the core science in several areas

of forensic science, although not in all areas of forensic science.

Now I would like to move on to the interim action. We need to

implement a program to address policy issues and focus on innovative processes and these include, and I have to echo Pete, we need

research, much more of it. We need education, and it is not just for

the people who are in the crime laboratories, but for lawyers and

judges. We need, of course, to continue accreditation and

credentialing. We cannot be bridged with a Band-Aid, and I

brought crime scene Band-Aids to show you all. You can have one

later. All right. But, it is true a Band-Aid is not going to solve this

problem, but a bridge will, and I think that is one thing that we

have to look at. So these interim issues must be addressed, and in

fact, notably, I have to tell you, there are very few papers regarding forensic science policy out there, and that is something else

that needs to be addressed as well. There is no established forensic

equivalent to think tanks like the Aspen Institute, and my objective in discussing these interim objectives with you is to emphasize

how important they are and the need for carefully thought out policy and strategic planning.

16

The long-term action is to create a NIFS, and I am very familiar

with NIFS in Australia. It took them 20 years to get off the ground.

And I talked to Alistair Ross, who is now the interim director, who

was the original director there, and I talked to him last night.

Many of the recommendations say this is great to have an oversight and coordinating body, but you really have to be practical,

and I have to say, that is one thing: I am practical. This committee

knows all too well the lengthy, you know, consultative processes

that will have to be undertaken if the government chooses to pursue creating a NIFS in the United States. The process will not be

instant and will, as with the interim issues discussed above, benefit

from careful analysis of policy, strategic planning and implementation factors.

All right. So now I would like to talk about the overhaul, which

is what was recommended in the NAS report, and these are more

general considerations based on my personal experience both as a

law professor, a federal prosecutor and the Past President of the

American Academy of Forensic Sciences [AAFC], although as I

mentioned, I am not here as a spokesperson for the Academy, only

the president or the president-elect can speak. The lack of academic freedom in research and development results in a stifling of

forensic science. As long as the overwhelming body of forensic

science does not challenge itself or respond to the voices of all its

stakeholders, especially the legal community which is a primary

stakeholder, we won’t move forward. I do have great hope, though,

for forensic science. In fact, my theme while I was the President

[of AAFS] was, Forensic Science: Envisioning and Creating the Future. AAFS, I have to tell you, has recognized education,

credentialing accreditation, and we actually raised more than

$300,000 last year for forensic science research because I knew,

and I think all of us knew, it was a priority. And we have really

welcomed the NAS report, and under President Tom Bohan, who

is in the audience here, we will continue to champion changes to

the forensic landscape.

So how do we make significant changes? We can draw an analogy with the race to the Moon. The Space Age had catastrophes

just like forensic science, but its successes came because there was

a stretching, but achievable goal and scientists and engineers at

NASA could apply themselves to delivering successful outcomes.

Give forensic science the same target and we will see even more

progress than has been achieved so far. Challenging the status quo

is as important as a unified commitment to a clear set of objectives

and a strategic plan. We must identify innovative approaches. It is

very key to be strategic. Innovation is a cultural issue as much as

one of the infrastructure and a case can be illustrated by comparison to the medical model of education and research. Medical

schools in top-tier universities act as centers of excellence and a

second opinion is allowed, in fact expected. By contract, forensic

science sometimes responds defensively to criticism and regards requests for a second opinion as a slight and not as a tool to encourage interaction with stakeholders. I have to say, Representative

Gordon, the Chair of the House Committee on Science and Technology, has reminded us that scientific progress occurs when we

foster the open exchange of ideas and information. That is excellent

17

advice and could form the basis of a goal of collaboration between

all our stakeholders, and President Obama has also pledged to

place science at the top of the national agenda commitment, and

that is something we in forensic science embrace.

I would like to thank the Committee for the opportunity to address you and your serious consideration of the report.

[The prepared statement of Ms. Henderson follows:]

PREPARED STATEMENT OF CAROL E. HENDERSON

Mr. Chairman and Members of the Subcommittee:

My name is Carol Henderson. I am the Director of the National Clearinghouse

for Science Technology and the Law (NCSTL), which is a program of the National

Institute of Justice. Through my leadership of NCSTL, I have been responsible for

creating the only searchable database on science, technology and law information

in the world. I am a Professor of Law at Stetson University College of Law, and

the immediate Past President of the American Academy of Forensic Sciences. As an

Assistant United States Attorney with extensive experience, a founder of the Florida

Innocence Project, and more than twenty years of involvement in teaching and

scholarly writing on the interface between science and law, I am well aware of the

importance of forensic science to the justice system. The nexus between science and

law is critical to forensic science. We therefore have to recognize that the ‘‘forensic

overhaul’’ desired by the NAS Committee on Identifying the Needs of the Forensic

Sciences Community requires the collaboration of all stakeholders: attorneys and

judges, crime laboratory and technical personnel, and civil expert witnesses.

We have been presented with an opportunity to make forensic science serve justice even more reliably and effectively. This is the time to build better ‘‘forensic

science.’’ However, we must be realistic in regard to the urgency of acting now and

not permitting defects identified in the report to go unaddressed, yet make the best

use of available resources and go forward in a measured and considered manner

that creates sound and lasting systems.

I am therefore recommending a three-step approach:

• immediate action that uses existing federal resources to address scientific

standards;

• interim action to evaluate strategic policy directions and strategies and explore innovative solutions;

• a long-term goal of creating a National Institute of Forensic Sciences (NIFS)

as envisioned by the NAS Committee on Identifying the Needs of the Forensic

Sciences Community.

Urgent Action: Making the best use of existing resources:

Many of the issues identified in the report concern the scientific foundation of disciplines and sub-disciplines in forensic science. The concerns range from ‘‘are these

techniques fundamentally unsound’’ to ‘‘while there is a body of evidence that the

techniques are of value, there is a lack of validation to the degree that has been

established in the introduction of DNA testing.’’

There is an existing federal agency well-suited to the task, namely the National

Institute of Standards and Technology (NIST). NIST has a national role in promoting scientific standards, and has made significant contributions to the core

science in several areas of forensic science. Its successes include advancement of the

fundamental science of forensic DNA testing, fundamental work on AFIS systems,

and major contributions to firearms comparisons. These bring together areas defined

at various points in the NAS report as being the new scientific gold standard of forensic testing (DNA) and areas that are badly in need of fundamental research to

provide a valid scientific basis to support decades of technical experience

(fingerprinting and firearms/tool mark examination). NIST also has a well-deserved

reputation for independence—a recurring concern of the NAS panel.

Interim Action: Implement a program to address policy issues and focus on

innovative processes:

The corollary to the need for rapid action and using existing resources such as

NIST to address scientific standards, is that the wider issues such as those of the

independence of crime laboratories and encouraging education, research, accreditaVerDate 11-MAY-2000 14:26 Jun 13, 2009 Jkt 047720 PO 00000 Frm 00021 Fmt 6633 Sfmt 6621 C:\DWORK\T&I09\031009\47720 SCIENCE1 PsN: SCIENCE1
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tion and credentialing, require very careful development and consideration. For example, more than 90 percent of the Nation’s crime laboratories are housed in law

enforcement agencies. Any effort to change that will have major budgetary and operational consequences. We need to be certain that such action is founded in fact and

that the change will produce the benefits expected. The very fact that more than

90 percent of the Nation’s crime laboratories are administered from within law enforcement agencies means that sophisticated models and analysis will be needed to

prove the case.

Accreditation has already been addressed in the forensic community. There are

established programs that provide accreditation to international standards and that

have been accepted by the great majority of forensic science service laboratories, and

indeed, as is recognized in the report, some states require their forensic science laboratories to be accredited. There are also existing certification programs in the forensic community, but there are no mandatory requirements and the response of

public and private laboratories has been sketchy. The courts also have a vital say,

with their role as gatekeepers of admissibility. The whole question of federal, State

and local recognition, creation and funding of registration bodies, and the definition

of meaningful certification standards is another case where a considered policy review is required to prevent waste of resources and miss-steps in implementation.

The report identified shortcomings in research, education, and standards of practice in the Nation’s crime labs. In-depth research and analysis of options leading to

strategic policy and implementation plans is needed. The infrastructure to address

the absence of a national research agenda in forensic science does not exist; the gap

between service standards and high quality and life-long education cannot be

bridged with a band-aid; and realization of the committee’s recommendation to create a National Institute of Forensic Science (NIFS) as an independent oversight and

coordinating body is a long-term issue.

These interim issues must be addressed, notably papers regarding forensic science

policy are marked by their absence. There is no established forensic equivalent to

think tanks like the Aspen Institute, for example. My objective in discussing these

interim objectives with you is to emphasize their importance and the need for carefully thought-out policy and strategic planning.

Long-term action: Create a National Institute of Forensic Science (NIFS):

Many of the recommendations of the NAS Committee on Identifying the Needs

of the Forensic Sciences Community center on NIFS as an oversight and coordinating body, and defer action to NIFS. However, it took more than 20 years from

articulation of the concept before there was an operational NIFS in Australia. This

committee knows only too well the lengthy consultative processes that will have to

be undertaken if the Government chooses to pursue creating a NIFS in the United

States. The process will not be instant and will, as with the interim issues discussed

above, benefit from careful analysis of strategic policy and implementation factors,

leading to a policy and implementation plan.

The focus of the make-over

I would like to turn now to more general considerations based on my personal experience as a law professor, federal prosecutor and Past President of the American

Academy of Forensic Sciences (AAFS). There is a tendency for crime laboratory administration to be conservative, and its ability to foster communication, collaboration and innovation probably suffers—as alluded to in the report—from the absence

of a meaningful university presence in forensic science. The lack of academic freedom in research and development results in stifling of forensic science. As long as

the overwhelming body of forensic science does not challenge itself or respond to the

voices of all its stakeholders, especially the legal community which is its primary

stakeholder, we will not move forward.

I have great hope for the future of forensic science. In fact, my theme while I was

President of the AAFS was ‘‘Forensic Science: Envisioning and Creating the Future.’’ AAFS has recognized the importance of education and credentialing by creating a Forensic Science Programs Education Committee and the Forensic Specialities Accreditation Board to review the quality of forensic education programs and

assess boards or organizations that certify individual forensic scientists or other specialists. The Forensic Sciences Foundation during my presidency of AAFS raised

more than $300,000 to support research. AAFS has welcomed the NAS report and

under President Tom Bohan will continue to champion changes to the forensic landscape.

These initiatives are a start, but how can we make the significant changes that

are needed? We can draw an analogy with the race to the Moon. The space age had

19

its catastrophes just like forensic science, but its successes came because there was

a stretching but achievable goal and the scientists and engineers at NASA could

apply themselves to delivering successful outcomes. Give forensic science the same

target and we will see even more progress than has been achieved so far. Challenge

to the status quo is as important as a unified commitment to a clear set of objectives

and a strategic plan.

Identifying innovative approaches is therefore a key strategic issue: forensic

science will not be made better by providing increased funds to do more of the same

things that have led it to where it is. ‘‘Innovation’’ is a cultural issue as much as

one of infrastructure and the case can be illustrated by comparison to the medical

model of education, research and service delivery. Medical schools in top tier universities act as centers of excellence that truly advance medical science, including the

critical role of transition from student to resident to faculty, with an on-going commitment to professional development and research. The ‘‘second opinion’’ is a natural and accepted part of medical practice. Centers of excellence attract independent

and critical minds, ever seeking to find new and better diagnostic and therapeutic

tools. By contrast, forensic science sometimes responds defensively to criticisms and

regards requests for a ‘‘second opinion’’ as a slight and not as a tool to encourage

interaction with stakeholders.

Rep. Bart Gordon, the Chairman of the House Committee on Science and Technology, has reminded us that ‘‘Scientific progress occurs when we foster the open

exchange of ideas and information.’’ That is excellent advice and could form the

basis of a goal of ‘‘Collaboration between all stakeholders to build, by 2014, a solid

foundation from which reliable scientific and technologic services can be provided

to the whole of the justice system.’’ President Obama has pledged to place science

at top of the national agenda, a commitment that we in forensic science embrace.

Summary:

In closing, I thank the Committee for the opportunity to address you and for your

serious consideration of the report of the NAS Committee on Identifying the Needs

of the Forensic Sciences Community. As we move forward we have to be conscious

of the need for action, tempered by awareness of the current economic situation and

by the importance of responding to the opportunity given to us by the NAS report

in a way that will result in lasting and effective solutions. To that end, I have recommended a three-stage approach:

• Immediate action that uses existing federal resources to address scientific

standards

• Interim action to evaluate strategic policy directions and strategies, and explore innovative solutions to areas such as education and research, and

• Long-term action to create a National Institute of Forensic Science (NIFS).

BIOGRAPHY FOR CAROL E. HENDERSON

• Professional affiliations:

• Past President, American Academy of Forensic Sciences

• Co-Chair Future of Evidence Committee, American Bar Association

Science and Technology Law Section

• Vice-Chair Scientific Evidence Committee, American Bar Association

Science and Technology Law Section

• Member, International Association of Chiefs of Police Forensic Committee.

• Founding director of the National Clearinghouse for Science, Technology and

the Law (NCSTL). Professor Henderson planned and managed its development, which includes the only comprehensive, searchable database of science,

technology and law in the world. (www.ncstl.org). NCSTL is the most effective

source of information on science and the law, with hits from 128 countries.

NCSTL also produces symposia, conducts community acceptance panels on

topics such as less lethal technologies and produces bibliographies on science

and technology issues.

• Recognized as an international authority on science and law, Professor Henderson has presented more than 250 lectures and workshops to thousands of

forensic scientists, attorneys, judges, law enforcement and military personnel

worldwide on the topics of scientific evidence, courtroom testimony, and proVerDate 11-MAY-2000 14:26 Jun 13, 2009 Jkt 047720 PO 00000 Frm 00023 Fmt 6633 Sfmt 6621 C:\DWORK\T&I09\031009\47720 SCIENCE1 PsN: SCIENCE1
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fessional responsibility. She has lectured in Argentina, Australia, Canada,

Finland, Germany, Hong Kong, Italy, Japan, Scotland, Spain and Taiwan.

• Professor Henderson has more than fifty publications on scientific evidence,

law and ethics. She is an editor of the Encyclopedia of Forensic and Legal

Medicine (2005), which received the Minty Prize from the British Medical Association. Her latest book, the 5th edition of Scientific Evidence in Civil and

Criminal Cases was published in 2008. She serves on the editorial boards of

the Journal of Forensic Sciences, the Journal of Clinical Forensic Medicine,

and the Forensic Science, Medicine and Pathology Journal. She also serves on

numerous working groups for the National Institute of Justice.

• Professor Henderson has appeared in both the popular and professional

media, including National Public Radio, Fox National News, CBS ‘‘48 Hours,’’

The John Walsh Show, Montel, TruTV, Court TV, the American Bar Association Journal and Lawyers Weekly USA.

• Professor Henderson received her J.D. degree from The National Law Center,

George Washington University in 1980. Prior to receiving her J.D., she

worked for the Federal Bureau of Prisons and the Department of Justice

Criminal Division. She began her legal career as an Assistant United States

Attorney in Washington, D.C.

Chair WU. Thank you, Ms. Henderson.

Mr. Hicks, please proceed.

STATEMENT OF MR. JOHN W. HICKS, DIRECTOR, OFFICE OF

FORENSIC SERVICES, NEW YORK STATE DIVISION OF CRIMINAL JUSTICE SERVICES (RET.); FORMER DIRECTOR, FBI

LABORATORY

Mr. HICKS. Thank you, Mr. Chair and Members of the Subcommittee. Thank you for the opportunity to be here to provide my

perspectives on this whole study today.

As Mr. Marone did, I tried to group the 13 recommendations of

the National Academy of Sciences’ study into four categories. My

categories are very similar to his, the first category being methods

development and standardization. I think this is probably the most

critical area where the needs are severe right now. The other category, laboratory accreditation and quality assurance, the third category, research and training, and the fourth, resource requirements, and those latter three categories Congress has already undertaken a number of initiatives that have helped the laboratories

considerably under the DNA backlog programs and the Paul

Coverdale Forensic Science Improvement Program. In my experience working with New York State over the last eight years, we

had 22 laboratories operating within that state, and I can tell you

that each of these laboratories benefits substantially from that, and

relies on those funds to continue to improve their programs and operations. They are critical programs and I would hope that they

would be continued.

Of course, the confidence in DNA technology was brought about

in large part because the underlying developmental work that was

done. We were fortunate at the time that work took place that it

was a brand-new technology. It was quickly recognized, the significance and importance of the technology, for forensic science and so

we had many agencies come together. The FBI, the National Institute of Justice and NIST [National Institute of Standards and

Technology], among those agencies working with commissions and

others around the country spent an enormous number of hours trying to work and address the various implementation issues. It

21

wasn’t efficient but it did seem to get us to the right place in the

end.

Of course, the National Academy committee expressed concerns,

as Mr. Marone pointed out, with a lot of pattern recognition types

of things: firearms identification, fingerprint matching, and so

forth. I think it is significant to note that NIST has played an important role in those functions. They did a big study not only with

respect to DNA technology, but did a huge study with respect to

the Automated Fingerprint Identification System, which helped to

identify the standards to help the system work more efficiently.

And of course, that is a system relied upon every minute of every

day by every police department in the country to carry out its

work. They also performed a very helpful study with respect to a

firearms database system to capture fired ammunition components

and the image data from the markings on those bullets and data,

and that has resulted in what is now called the NIBIN, National

Integrated Ballistics Identification Network, and it is used widely

by firearms examiners around the country. It is a good training

tool to help begin to maybe generate leads in ongoing investigations. So NIST has played an important role in those two. Of

course, with respect to toxicology and chemistry and general analytical services, NIST routinely provides standards that are used

for traceability and quality control purposes when in those operations.

From my perspective, I think an expanded role for NIST represents the most effective and efficient way to bring about needed

improvements in the forensics community. It would bring focus and

it would draw on their core competencies, which of course relate to

standards development and validation of work. I suspect there is

a lot of work out there that if brought together—existing work out

there brought together and sort of examined closely under great

scrutiny, some NIST studies put together to round out the available data, I suspect that many of the troublesome questions that

the Academy report found might be addressed fairly quickly

through an organization like NIST.

It would be helpful, of course, for NIST to—I think the DNA

model, while not necessarily all that efficient, did draw on collaboration between federal agencies that have some competencies in

this area and had connections with the community. I think it would

be very important of course for NIST to expand its relationship

with the forensic community. One of the things that has evolved

over the last few years has been what are called scientific working

groups. And these are typically experts in different disciplines

brought together to share their concerns and questions and issues

that come up and it has been a very productive way to help promote standards. In fact, many of those groups have defined their

own—started putting together information that helps define what

the operating standards and procedures should be for their disciplines. What would be helpful is to expose these data to some

good, heavy, rigorous scientific scrutiny as well.

So I think I will conclude with that. As I said, my perspective

is that NIST provides an opportunity here to really help in the

area which I think is the greatest need, and that is focusing on the

standards development and the standardization aspects.

22

[The prepared statement of Mr. Hicks follows:]

PREPARED STATEMENT OF JOHN W. HICKS

Mr. Chairman and Members of the Subcommittee, thank you for the opportunity

to appear before you today and to offer my perspective on the findings and recommendations found in the recently released report of the National Academy of

Sciences (NAS), Strengthening Forensic Science in the United States: A Path Forward. The Academy was given a broad charge to assess the state of forensic practices across the country and to make recommendations for improvement. In addition

to traditional forensic laboratory services, the scope of its review included functions

of medical examiners and coroners in determining cause and manner of death.

The recommendations found in the NAS report fall into four broad categories:

(1) methods development and standardization; (2) laboratory accreditation and

quality assurance; (3) research and training; and (4) resource needs. As described

briefly below, a number of congressional initiatives over the past few years have directed much needed attention to resource needs and to forensic laboratory quality

improvement issues, including laboratory accreditation and staff training. It is recommended that support for these initiatives be continued. It is clear, however, that

additional steps are needed to address critical concerns related to methods development and validation, especially for forensic disciplines other than DNA analysis.

With regard to the forensic use of DNA technology, Congress has authorized a series of programs that provide resources needed to meet the unprecedented demand

for testing services. These programs are administered by the National Institute of

Justice and are intended to help eliminate testing backlogs and reduce case turnaround times, to provide defendants with access to post-conviction DNA testing, and

to help assure that the technology is used effectively to identify missing persons.

With regard to ‘‘non-DNA’’ forensic laboratory services and medical examiners,

legislation was enacted in 2000 which created the Paul Coverdell Forensic Science

Improvement Program which awards grants to states and units of local government

to help improve the quality and timeliness of forensic science and medical examiner

services. Among other things, the Coverdell program calls for laboratory accreditation by recognized accrediting bodies and provides for staffing and training needs.

To assure transparency in laboratory operations, especially when problems may be

indicated, Coverdell also requires that there be an independent entity with authority to investigate allegations of malfeasance or misconduct by laboratory personnel.

While working in New York State, it has been my experience that these programs

have been effective in bringing needed improvements to the 22 State and local forensic laboratories across the State. It is strongly recommended that support for

these programs be continued and expanded.

In the Senate report that led to the NAS study, and in the NAS report itself, forensic DNA technology was set apart from other forensic disciplines in terms of

what is known of the robustness of the underlying research and the methods validation work that was conducted to support its applications in the criminal justice system. The confidence in forensic DNA technology is the result of the considerable efforts of scores of scientists in the public and private sectors, working with academic

researchers and forensic science practitioners, to assess, validate and optimize the

various DNA testing methods in use today. A national Technical Working Group

was formed at the outset to facilitate communication among forensic practitioners

and help advance the technology in a coordinated way. The Technical Working

Group on DNA Analysis Methods (TWGDAM) was specifically cited in the DNA

Identification Act of 1994 which authorized CODIS, the national DNA Database.

This effort was driven by Congressional leaders and agency administrators who recognized the importance and potential of this emerging technology as an identification tool to solve crimes and assure justice in the courts. High level support and

direction was essential to maintain a focus that would assure the standardized

methods necessary for data compatibility to enable the mutual sharing of information. Key federal agencies that contributed to the development and validation of forensic DNA technology include the Federal Bureau of Investigation (FBI), the National Institute of Justice (NIJ) and the National Institute of Standards and Technology (NIST).

The NAS Committee expressed concern over the apparent lack of systematic research to validate the basic premises and techniques for forensic disciplines that

have been in practice since before the emergence of DNA technology. Disciplines

which drew particular attention in their report are those that rely, in large part,

on pattern recognition techniques such as those used in the examination of fingerprints; firearms and fired ammunition components; tool marks; and handwriting,

among others. For these and other ‘‘non-DNA’’ forensic techniques that are widely

23

used today, it would be helpful to identify and gather existing empirical studies, to

conduct other studies as deemed necessary to update or supplement these data, and

to put the information in a form that is readily disseminated within the relevant

forensic and scientific communities. Based on these studies, appropriate standards

should be developed or updated to assure the use of uniform and scientifically validated examination techniques by forensic practitioners. These appear to be areas of

study for which the core competencies found in NIST are particularly well suited.

While perhaps best known for its work in industry, NIST has been actively involved with elements in the forensic community over the past decade and has made

important contributions working collaboratively with other federal agencies, industry and academia. For example, the agency undertook a number of inter-laboratory

and other studies pertaining to individual markers used in DNA identification

which have helped guide the successful development and forensic application of this

revolutionary technology. The results of these efforts are in daily use in public and

private forensic DNA laboratories and NIST scientists have presented their work in

academic courses in order to prepare the next generation of forensic scientists. They

have also provided in-service training sessions and in addition, seminars at professional meetings across the country.

NIST has also performed studies designed to validate and improve the performance of large data systems used in criminal justice applications such as the Automated Fingerprint Identification System (AFIS), a vital system in continuous use

by law enforcement and other agencies to resolve personal identification issues, and

the National Integrated Ballistics Identification Network (NIBIN) which correlates

imaged data from bullets and cartridge casings recovered during the course of criminal investigations. NIST provides standard reference materials for use by laboratories in private industry as well as public laboratories (including forensic laboratories). As new technologies continue to emerge with potential applications in forensic laboratories, NIST is uniquely positioned to facilitate communications between

the forensic community and private industry to assure the timely and appropriate

development and production of laboratory equipment, reagents and other supplies

needed for implementing new techniques.

An expanded role for NIST represents the most effective and efficient way to

bring about needed improvements in the forensic science community and to assure

appropriate focus in the development of new technology opportunities that emerge

in the future. The activities described above, and others that can be cited by officials

from NIST, clearly demonstrate the agency’s unique competencies which can be

brought to bear more widely in the forensic community not only to validate current

methods and practices, but also to define a structure which can guide a long-term

process of continuous improvement. The DNA experience provides a useful model

and a framework upon which to build. This framework includes working with other

federal agencies such as the FBI and NIJ, and engaging established Scientific Working Groups for specific forensic disciplines. If charged with this role by Congress,

it would be expected that NIST would establish a coordinating body to provide oversight and direction to the effort. This body might include officials from the criminal

justice and crime laboratory communities, key professional associations, and established accrediting organizations such as the American Society of Crime Laboratory

Directors—Laboratory Accreditation Board (ASCLD/LAB) and the American Board

of Forensic Toxicology (ABFT).

BIOGRAPHY FOR JOHN W. HICKS

From May 2000 to January 2008, Mr. Hicks was the Director of the Office of Forensic Services, New York State (NYS) Division of Criminal Justice Services. Responsibilities of the Office include oversight of the State DNA database and providing staff support to the NYS Commission on Forensic Science. The Commission

sets mandatory accreditation standards for 22 State and local forensic laboratories

operating in New York (eight of which perform forensic DNA analysis) and monitors

laboratory compliance. The Office of Forensic Services also facilitates specialized

technical training for laboratory and law enforcement personnel, and participates in

the administration of federal and State grants to the laboratories.

Mr. Hicks was a Special Agent with the Federal Bureau of Investigation (FBI)

from 1969 to 1994 and served for much of his career in various technical and administrative positions in the Laboratory Division. He held the position of Assistant Director in charge of the FBI Laboratory from 1989 to 1994. In 1994, Mr. Hicks became Deputy Director of the Alabama Department of Forensic Sciences and was

charged, among other responsibilities, with establishing the DNA Databank program for the state.

24

Mr. Hicks has been actively involved in the development of national standards

and supporting State and federal legislation for the use of DNA technology in criminal justice applications. He was appointed by Governors Pataki and Spitzer to the

NYS Commission on Forensic Science, is a member of the American Academy of Forensic Sciences and the American Society of Crime Laboratory Directors. He is a

former board member of the National DNA Advisory Board. Mr. Hicks holds a Bachelor’s Degree in Chemistry from Arkansas State University and a Master’s Degree

in Public Administration from the University of Southern California. He completed

the Program for Senior Managers in Government at the John F. Kennedy School

of Government, Harvard University, and the FBI Executive Development Institute.

Chair WU. Thank you very much, Mr. Hicks.

Dr. Downs, please proceed.

STATEMENT OF DR. JAMES C. UPSHAW DOWNS, FORENSIC PATHOLOGIST/CONSULTANT, COASTAL REGIONAL MEDICAL

EXAMINER, GEORGIA BUREAU OF INVESTIGATION

Dr. DOWNS. Chair Wu, distinguished Committee Members, it is

indeed an honor and a privilege to be before you today. I speak

today as a GBI [Georgia Bureau of Investigation] employee, a

board-certified forensic pathologist, and former Director of the Alabama Department of Forensic Sciences, where I saw firsthand a lab

system go from square one to full accreditation while facing a

crushing backlog. Most importantly, I speak as a son who lost a

mother suddenly and had to wait for answers, and when those answers came it left many in my family with more questions than solace.

I think the take-home lesson from the NRC [National Research

Council] report is nothing we didn’t already know. For years we

had seen the initially maligned discipline of forensic DNA identification benefit from a focused look at the potential and the shortcomings of the science. Although some had been skeptical, especially at first, the end result was wide acceptance of the reliability

and the validity of DNA science. We within the rest of the forensic

system eagerly sought an independent assessment of where we all

stood. The NRC report is, as Paul Harvey would say, ‘‘the rest of

the story’’: overall, we are doing well but there is some room for

improvement.

Of the recommendations in the report, there is little but agreement on almost everything. Most involved in the process feel standardization of reports and terminology, research into underlying

principles and validity, addressing potential bias and error, establishment of testable metrics, proficiency testing, accreditation, certification, quality assurance, ethics, enhanced forensic education,

and database inter-operability are all good things. The question

today is how NIST might fit into the forensics picture.

Certainly I don’t think anybody would doubt the technical merits

of NIST and their track record of unparalleled success in regards

to analytical laboratory standards. Their greatest strength lies in

accuracy and precision—the metrics of testing. The NRC specifically reaches out, as it should, to NIST to partner in relevant areas

where such measurement and testing are key considerations. Thus,

in areas like standardization, research, underlying principles, validity, potential bias and error, et cetera, NIST can, and should, be

involved. However, the day-to-day application of forensic testing

means working with less-than-optimal and highly variable casespecific evidence and trying to obtain the best possible test results,

25

then reporting those findings to the appropriate entities. NIST is

primarily a laboratory science body which does not fit well into the

NRC call for significant research in the entirety of the forensics

realm. The NIST excellence in laboratory standards and metrics

does not translate well into the larger issues of accreditation and

certification, practitioner professionalism, or administrative areas.

Nor, quite honestly, is there likely to be buy-in from the forensic

practitioners if they [NIST] did become more involved. We already

have accreditation and certification. We have standard operating

procedures in place. I don’t think we need to reinvent the wheel.

Another concern that I have is, unfortunately, I think that NIST

lacks an established history with regards to the complexities and

intricacies of interactions of law enforcement, legal, and governmental entities so vital to the effectiveness of the forensic system

as a whole. A related question would be: exactly under what

branch of government is there a best fit for forensics? An important

point here is while we may be scientists, those who use our reports

are oftentimes not. They are judges, prosecutors, defense counsel,

police, sheriffs, and civilians. They all share one key concern: they

want an accurate, reliable answer and they want it quickly. These

customers have different, sometimes not entirely interrelated

needs. Does the investigative aspect of law enforcement needs or

the adversarial tenor of the court determine how a case is to be

analyzed? Unfortunately, questions are far easier than answers.

The same NRC that conducted this report called for

professionalization of forensics, specifically death investigation, before, through the National Academies. The last time in 2003, but

also a little further back—in 1928 and again in 1932. Perhaps it

isn’t surprising to see that change is slow to come. After all, what

is 80 years that we have been waiting compared to an office, specifically the coroner, that dates to the 900s and was reformed in

1194. Those who live in the past are destined to stay there. I think

the NRC was wise in recognizing that none of their goals, however

well intentioned, can come about overnight. There are serious challenges, both jurisdictional and legal, to overcome.

Independence is also an important consideration. Within my

agency, we are operationally independent, as it should be, and as

the text of the NRC report clearly defines. I have testified many

times before from the stand that I am neither pro-prosecution nor

pro-defense, I am pro-truth. I don’t have a dog in the fight. The adversaries in the courtroom are the attorneys. I am their guest.

In closing, I think the path forward for all forensic scientists as

outlined in the National Academy of Sciences’ report is best served

by that old adage, ‘‘good enough seldom is.’’ The American people

deserve better, and I think perhaps Sir William Gladstone best

summed it up: ‘‘Show me the manner in which a nation cares for

its dead and I will measure with mathematical exactness the tender mercies of its people, their respect for the laws of the land and

their loyalty to high ideas.’’

Thank you, Mr. Chair and Committee Members. I would be

happy to answer any questions.

[The prepared statement of Dr. Downs follows:]

26

1The National Association of Medical Examiners (NAME) is the national professional organization of physician medical examiners, medical death investigators and death investigation system administrators who perform the official duties of the medicolegal investigation of deaths of

public interest in the United States. NAME was founded in 1966 with the dual purposes of fostering the professional growth of physician death investigators and disseminating the professional and technical information vital to the continuing improvement of the medical investigation of violent, suspicious and unusual deaths. Growing from a small nucleus of concerned physicians, NAME has expanded its scope to include physician medical examiners and coroners, medical death investigators and medicolegal system administrators from throughout the United

States and other countries. 2The American Academy of Forensic Sciences is a multi-disciplinary professional organization

that provides leadership to advance science and its application to the legal system. The objectives of the Academy are to promote education, foster research, improve practice, and encourage

collaboration in the forensic sciences. 3Forensic Autopsy Performance Standards, http://thename.org/index.php?option= com¥docman&task=cat¥view&gid=45&Itemid=26 4 CSI: Mississippi, A case study in expert testimony gone horribly wrong, http://

www.reason.com/news/show/122458.html 5 Reason’s Reporting on Steven Hayne and Mississippi’s Criminal Forensics System, http://

www.reason.com/news/show/131242.html 6The Flexner Report and the Standardization of American Medical Education, http://

jama.ama-assn.org/cgi/content/full/291/17/2139

PREPARED STATEMENT OF JAMES C, UPSHAW DOWNS

Chairman Wu and distinguished Committee Members, it is indeed an honor and

a privilege to appear before you today. As the lone Medical Examiner and death investigation professional among the witnesses, I believe I offer a unique perspective

on several of the issues raised in the National Research Council (NRC)’s report. I

speak here today as a practitioner, a board-certified Forensic Pathologist, and a

member of several professional organizations (including The National Association of

Medical Examiners (NAME)1 and The American Academy of Forensic Sciences

(AAFS).2 I do not speak for these organizations but their views have certainly

helped shape my opinions. I speak as someone who has seen the pinnacles of investigative success the present system has to offer and one who has seen shameful mistakes. Most importantly, I speak as a concerned citizen who genuinely desires the

improvements the forensic sciences and all those who use those services deserve. I

speak as a son who lost a mother suddenly and had to wait for answers—and when

those answers came, it left many in my family with more questions than solace. For

my father, he experienced the same fate a generation earlier when his mother had

no examination conducted as a lay investigator deemed it ‘‘unnecessary.’’

I was asked to review the scientific and technical issues raised by the NRC Report

on Forensic Sciences and how the National Institute of Standards and Technology

might fit into that picture. I should like to address my remarks primarily to the

discipline of Forensic Pathology and medicolegal death investigation (see recommendation #11), which I see as a microcosm of the issues involving the forensic

Sciences as a whole. I think that perhaps Sir William Gladstone best summed it

up: ‘‘Show me the manner in which a nation cares for its dead and I will measure

with mathematical exactness the tender mercies of its people, their respect for the

laws of the land, and their loyalty to high ideals.’’

The focus of the entire ‘‘status of forensics’’ to me comes down to uniformity and

best practices (see NRC recommendation #2). A different quality of death investigation should not depend on where one has the misfortune of dying. Surviving family

members and the courts should not be forced to wait because a motor vehicle crash

victim didn’t quite make it over the State line to a better jurisdiction. In order to

ensure that all forensic autopsies are created equal, NAME developed and implemented Forensic Autopsy Performance Standards in 2006.3 Experienced practitioners formulated guidelines that were carefully considered and adopted by the

membership at large. The intent was to create a procedure whereby the technical

aspects of the performance of the forensic autopsy were consistent from jurisdiction

to jurisdiction in order to guarantee a quality product. Are there very real and very

serious problems when best practices are not followed? One need only look at recent4,5 events regarding autopsies by un-boarded, non-Forensic Pathologist examiners to see the consequences. Truly those who do not learn from the mistakes of

the past are destined to repeat them.

When Forensic Medicine is practiced as it should be—thoughtfully, completely, accurately, and impartially—everyone benefits. The scientific foundation of medicine

is unquestioned. Medicine fought some battles similar to those pointed out in The

NRC report at the same point in the last century with end result being a revolution

27

7Flexner Report . . . Birth Of Modern Medical Education, http://www.medicinenet.com/

script/main/art.asp?articlekey=8795 8 ABMS FACT SHEET, http://www.abms.org/News¥and¥Events/Media¥Newsroom/pdf/

ABMS¥Fact¥sheet.pdf 9 R. Hanzlick & V. Weedn/National Association of Medical Examiners

10 National Association of Medical Examiners 11Strengthening Forensic Science in the United States: A Path Forward, The National Academies Press, Washington, D.C., February 2009. 12 Ibid. 13 Ibid.

in medical education and practice.6,7 The net result was enhanced confidence in how

the science was applied. The other forensic disciplines are on a similar road to ours

but at several different points on their journeys. I think that, in general, the scientific underpinnings are there but certainly the disciplines would benefit from a

more formal structured review. Look at it this way, a race car driver can be incredibly proficient on the track. The net result of the NRC report is that the same racing

champion now has to go back and get a driver’s license to document that they can

in fact do what they already do so well.

All the efforts to improve medicolegal death investigation are designed to enhance

service delivery to those who rely on the results of the forensic autopsy. In addition

to the obvious impact Forensic Pathology has on the justice system, Medical Examiners have important and sometimes under-recognized duties in public health, medical research, and homeland security/mass disaster preparedness. Recognition of potentially infectious diseases from the performance of the autopsy may assist to minimize illness and death. Injuries found at autopsy were a large part of the development of automotive seatbelts and airbags. By studying sudden deaths, certain commonalities may be found and medical science advanced. Our understanding of many

deaths, including those resulting from violence, can protect the living, for example

by identifying inherited diseases or dangerous drug combinations. In the arena of

disaster preparedness, the Medical Examiner is responsible for the medical investigation in mass fatality incidents, including identification of victims and the determination of the cause and manner of death—the Medical Examiner makes the ultimate determination if a death was, in fact, a homicide. Another area in which the

Medical Examiner’s contributions may not be fully appreciated is one of the most

significant—as ‘‘family physicians to the bereaved’’ and providing closure to untold

numbers of surviving family members.

Quality is a goal, not a destination; as such one of the hallmarks of any good lab

is CQI—continuous quality improvement. NAME concurs with the NRC (see recommendation #2) that such quality is essential. As part of the NAME accreditation,

an office has to have a quality assurance program. Benchmarks of that quality were

demanded by the NRC report—certification and accreditation.

As physicians, Medical Examiners are well familiar with the necessities of personal qualification, to include licensure and medical specialty board certification. In

1933, American Board of Medical Specialties (ABMS) began medical specialty certification. Their motto says it all: ‘‘Higher standards. Better care.’’

• Nearly 85 percent of all licensed physicians in the United States are certified

by at least one ABMS Member Board.

• Certification by an ABMS Member Board is widely recognized as the gold

standard in assessing physician qualification. Health care institutions, insurers, physicians and patients use ABMS Member Board certification status as

an essential tool to judge that a physician has the knowledge, experience and

skills to provide quality health care within a given specialty.8

Pathologists have been certified in the sub-specialty of Forensic Pathology by the

ABMS for the past 50 yrs. NAME will only recognize a physician as a Forensic Pathologist if they are certified in Forensic Pathology by the ABMS. Of the full members of NAME, ∼85 percent have their specialty boards and ∼75 percent have their

sub-specialty boards.9

Just as we believe individuals should have certain basic credentials, so too should

lab systems. NAME pioneered the accreditation of medicolegal death investigation

systems, commencing formally in 1975. It has accredited offices in cities all over the

United States (such Atlanta, Miami, Los Angeles, and Houston); in State systems

(New Mexico and Georgia), and other nations (Singapore). We do have a way to go

yet, at present, only 49 Medical examiner Offices/systems are accredited with another 11 in progress.10 Regardless, the recommendation that ‘‘All medical examiner

offices should be accredited’’ 11 is a good one. In addition, targeting limited available

funds (especially given the present budget constraints) is a good carrot to encourage

28

12 Ibid. 13 Ibid. 14 Ibid. 15Death Investigation: A guide for the Scene Investigator, http://www.ncjrs.org/pdffiles/

167568.pdf 16Sudden, unexplained Infant death Investigation Curriculum Guide, http://www.cdc.gov/

SIDS/PDF/508SUIDIGuidelinesSingles.pdf 17 National Research Council. Bulletin of the National Research Council, No. 64: The Coroner

and the Medical Examiner. Washington DC: National Research Council;1928. 18 Institute of Medicine. Medicolegal Death Investigation System: Workshop Summary. Washington DC: National Academy of Sciences; 2003. 19 National Research Council. Bulletin of the National Research Council, No. 87: Possibilities

and Need for Development of Legal Medicine in the United States. Washington DC: National

Research Council; 1932. 20 CROWNER: Origins of the Office of Coroner, Prof. Bernard Knight, CBE, http://

www.britannia.com/history/coroner1.html 21Strengthening Forensic Science in the United States: A Path Forward, The National Academies Press, Washington, D.C., February 2009.

compliance: ‘‘All federal funding should be restricted to accredited offices . . . or

[those] that demonstrate significant and measurable progress in achieving accreditation within prescribed deadlines.’’ 12

Forensic pathologists are strong proponents of education and research. In addition

to attaining basic qualifications, in order to maintain licensure physicians are required to undergo continuing education, attaining a specific number of hours of

training annually (another general NRC recommendation). NAME holds two meetings each year and the AAFS one in order to provide the latest forensic medical advances to attendees from all medical specialties. The American Journal of Forensic

Medicine and Pathology, the official publication of NAME is the oldest professional

publication dedicated exclusively to the science of medicolegal death investigation.

The AAFS’ Journal of Forensic Sciences is a multi-disciplinary which includes pathology/biology. These and other specialty journals present the latest advances in

the field, however, sorely needed ongoing research has been difficult to fund. I am

personally involved in studies in the field of child abuse and have to rely on the

generosity of one of my community’s non-profit hospitals to conduct tests that would

otherwise go undone. The NRC call ‘‘. . . to support research, education, and training in forensic pathology . . .’’ 13 must be heeded if we are to keep pace with the

ever advancing field of clinical medicine and other scientific disciplines. Only by

making Forensic Pathology a continuously intellectually challenging discipline can

we attract the best and brightest to the field in order to make that promise of a

brighter future a reality. Guidance is needed, as indicated in the recommendation

that a medicolegal death investigation Scientific Working Group (SWG) to ‘‘. . . develop and promote standards for best practices, administration, staffing, education,

training, and continuing education for competent death scene investigation and

postmortem examinations,’’ 14 to include new technologies. Directed group efforts

have produced vital information to provide high quality death investigation at

‘‘every scene, every time.’’ 15 Similarly, training curricula targeted to the most difficult of death scenes, those involving infants16 have sought uniformity to the investigation of these tragic cases.

One of the more controversial among the NRC findings would be the conversion

to a nation-wide Medical Examiner system, replacing the existing political office of

coroner present in many jurisdictions. Professionalization death investigation has

been proposed by the same National Academies—most recently in 2003 through the

Institute of Medicine,17 but also a little further back by the in 192818 and again in

1932.19 Perhaps it isn’t surprising to see that change is slow to come, after all

what’s 80 years against an elected office dating to the 900’s and which made its

comeback in 1194!20 Those who live in the past are destined to remain there. In

that context, ‘‘the goal of replacing and eventually eliminating existing coroner systems’’ 21 can be seen as an attempt to improve a presently ‘‘adequately’’ functioning

system. We must recognize that the mission of the medicolegal investigation of

death has changed over the years. What used to be considered primarily a function

of the justice system (be it criminal or civil) is now much, much more: ‘‘The role

of medical examiners and coroners has evolved . . . to a broader involvement that

now significantly benefits the public safety, medical, and public health communities.

It is foreseeable that the public health role of medical examiners and coroners may

continue to grow and that, perhaps in the not too distant future, public health impact will surpass criminal justice as the major focus of medicolegal death investigaVerDate 11-MAY-2000 14:26 Jun 13, 2009 Jkt 047720 PO 00000 Frm 00032 Fmt 6633 Sfmt 6621 C:\DWORK\T&I09\031009\47720 SCIENCE1 PsN: SCIENCE1
29

22Medical examiners, coroners, & public health: a review & update, Arch Path Lab Med. 2006

Sep; 130(9):1274–82. 23 R. Hanzlick & V. Weedn/National Association of Medical Examiners 24Strengthening Forensic Science in the United States: A Path Forward, The National Academies Press, Washington, D.C., February 2009. 25 R. Hanzlick & V. Weedn/National Association of Medical Examiners 26 Ibid. 27 R. Hanzlick, AAFS Pathology/Biology Annual Luncheon, from JAMA, September 10, 2008. 28 Ibid. 29Strengthening Forensic Science in the United States: A Path Forward, The National Academies Press, Washington, D.C., February 2009.

tion in the United States.’’ 22 We can do better, but in order to do so, we must first

understand the issue.

Typically death investigation is handled at the State or usually local level. No two

systems are the same, even though many are similar. Of the 3,137 U.S. counties,

roughly one-third (960) are true Medical Examiner counties without Coroners. These

fall into four basic models: true State Medical Examiner (19 states—697 counties),

pure County Medical Examiner (two states—98 counties), pure District (Regional)

Medical Examiner (one state—67 counties), and sporadic (mixed) Medical Examiner

(14 states—98 counties).23 One problem is terminology—for example some states use

the term ‘‘medical examiner’’ but do not require that person to be a pathologist. In

short, in order to fix this one part of the overall ‘‘forensic system,’’ significant restructuring of operations and local, State, and federal laws would be required.

In common usage, the terms Medical Examiner and Coroner are used interchangeably by many. In reality, there is a world of difference. A Medical Examiner

in the purest sense is a physician, who after completing medical school continues

training four or five more years in the field of General (also known as ‘‘Hospital’’)

Pathology. Following that, are one to two years of specialized subject matter training in Forensic pathology. Following that are an intensive three day written and

practical board examination in General Pathology followed by a one-day exam in Forensic Pathology. Compare that with the basic qualifications of the coroner, which

are election to the office, often without any medical background or training at all.

Their medical education is either on-the-job or yearly seminars on selected topics.

I ask you—should the unfortunate instance arise, whom would you prefer perform

this most important medicolegal examination on your loved one and then to testify

about it in court? Who should be in charge of that death investigation system? With

all due respect and with no offense intended, I do not believe a cab driver should

be directing brain surgery. NAME agrees with the NRC that ‘‘All medicolegal autopsies should be performed or supervised by a board certified forensic pathologist.’’ 24

As of now, there are approximately 245 titular or de facto chief medical examiners

in the U.S. In reality, only ∼160 of those meet NAME’s definition of a Forensic Pathologist.25 There are only ∼400 active, full-time practicing Forensic Pathologists in

the U.S.26 In 2008 at the 126 Medical schools in the U.S. and 8,589 Medical Training Programs (representing 141 specialties) and 18,372 new medical students, only

37 new physicians entered the field of Forensic Pathology.27

Personally, I have worked with some excellent coroners who were dedicated and

diligent. I suggest we not throw the baby out with the bath water. It is obvious that

there insufficient Medical Examiners now and for the near-term future to simply

flip a switch off on the Coroner system. Working with appropriate stakeholders, I

would propose we roll the present functions of the traditional County Coroner into

those of the Medical Examiner’s office and utilize these already functioning professionals as lay investigators within that Medical Examiner system. This has the advantage of reduced costs and more rapid implementation. Obviously, those directly

involved would have to have buy-in.

In order to achieve the goal of timely delivery of the highest quality forensic service to our citizens, we must have sufficient resources to make sure it happens. We

must increase the numbers of trained Forensic Pathologists (and all other forensic

practitioners) and strive for uniformity in the process of death investigation. Estimates indicate that twice the existing number of Forensic Pathologists would be

needed to fully staff a true Medical Examiner system across the entire country. The

NRC indicated that ‘‘Congress should appropriate resources to . . . support research, education, and training in forensic pathology.’’ 28 If we want more people in

the field, we need to recruit them early and retain them. Toward that end, the report made a bold proposal, that ‘‘. . . medical student loan forgiveness and/or fellowship support, should be made available to pathology residents who choose forensic

pathology as their specialty.’’ 29 As someone over twenty one years out of medical

school and with my oldest child graduating college and my second starting, I am

30

30 Ibid. 31http://www.fedcourt.gov.au/how/prac¥direction.html 32 Ibid. 33Strengthening Forensic Science in the United States: A Path Forward, The National Academies Press, Washington, D.C., February 2009.

proud to report that they have no outstanding student loans—but that their father

could say the same!

In addition to the staffing issues, conversion to a nationwide Medical Examiner

system will be expensive, as will be implementation of all the ‘‘forensics system’’ improvements called for by the NRC. ‘‘Funds are needed to build regional medical examiner offices, secure necessary equipment, improve administration, and ensure the

education, training, and staffing of medical examiner offices. Funding could also be

used to help current medical examiner systems modernize their facilities to meet

current Centers for Disease Control and Prevention-recommended autopsy safety requirements.’’ 30 As the panel’s charge did not include budgetary issues, the inconvenient ‘‘how to pay for it’’ was left out of the mix.

Independence is also an important consideration. As my regular job falls under

the umbrella of a law enforcement agency (the Georgia Bureau of Investigation),

some might see that I have a pro-police bias. In reality, as I have testified from the

stand many times before, I am neither pro-prosecution nor pro-defense; I am protruth. Within my agency, we are operationally independent, as it should be. I have

worked in four different models of death investigation administration: private contractor, university employee, independent State agency, and law enforcement agency. I have found the best support I have ever had in the latter system. That those

within law enforcement (as in the courts) would be interested in the results of my

examinations is hardly surprising. Truth be told, I have never dealt with any law

enforcement officer who wanted me to force a call or modify an opinion to suit some

clandestine purpose. Quite the contrary, my experience has been that those police

agencies who rely on my reports to determine if a case should be further scrutinized

are understaffed and underfunded and are looking for guidance into how to best

manage their own scarce investigative resources.

As for the science, an important distinction should be made between conventional

science and forensic science. Ultimately, in the latter case the data must be available for courtroom presentation. As such, what might be considered intra-disciplinary differences of opinion in the interpretation of test results take on a whole new

light. The objective forensic observer must not only perform the testing neutrally

but must also report it likewise. Australia has already established (and revised five

times) Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia.31 The intent is to make the expert an impartial finder of scientific fact and

to impartially report those findings and their resultant opinions to the court. I believe that impartiality and fairness are essential, test results should be just that—

good or bad for whichever side, they should be solidly based and then should be admitted as a matter of course in accordance with procedures. I remember the day

when DNA evidence was challenged almost incessantly and now a case is almost

deemed questionable if there isn’t DNA evidence. The good folks at the Innocence

Project have show first-hand how valuable good forensic evidence can be—for either

side in our adversarial legal system.

The NRC was wise in recognizing that none of their goals, however well-intentioned, can come about overnight. We have serious jurisdictional and legal challenges to overcome. ‘‘This requirement should take effect within a timeframe to be

established . . ., following consultation with governing State institutions.’’ 32 It

might be tempting to find a quick fix to the issue of oversight for the forensic

sciences by placing it under existing entity. I do not believe that is in the spirit of

what the NAS report called for:

‘‘The forensic science system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to overhaul

the current structure that supports the forensic science community in this country. This can only be done with effective leadership at the highest levels of both

Federal and State governments, pursuant to national standards, and with a significant infusion of federal funds . . .. What is needed to support and oversee

the forensic science community is a new, strong, and independent entity that

could take on the tasks that would be assigned to it in a manner that is as objective and free of bias as possible-one with no ties to the past and with the

authority and resources to implement a fresh agenda.’’ 33

I do not think it in our best interests to try to ‘‘add on’’ to an existing structure,

with its own extant biases and entrenched operational protocols. Such an instituVerDate 11-MAY-2000 14:26 Jun 13, 2009 Jkt 047720 PO 00000 Frm 00034 Fmt 6633 Sfmt 6621 C:\DWORK\T&I09\031009\47720 SCIENCE1 PsN: SCIENCE1
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34http://www.nifs.com.au/ 35http://www.nifs.com.au/NIFS/NIFS¥frame.html?about.asp&1 36 Ibid. 37Maya Angelou 38Strengthening Forensic Science in the United States: A Path Forward, The National Academies Press, Washington, D.C., February 2009.

tionalized mindset would not seem to provide us the optimal chance to create a better way. The NRC report called for a new, independent entity for a reason—past

experience. We have an opportunity to learn from past mistakes and to emulate our

successes as we move forward. If we are to take home the messages of this NAS

report, we should not cherry pick what we want to hear and disregard the parts

we think we might do better without. This is one of those rare times in life where

we have the opportunity to get it right from the start as we follow a new, better

path armed with the experiences that will ensure our best chances for success.

As for an independent model, there exists an independent National Institute of

Forensic Science (NIFS)34 in Australia. The NIFS core functions include:35

• Sponsor and support research in forensic science;

• Advise on and assist with the development and coordination of forensic

science services;

• Gather and exchange forensic information;

• Support, coordinate and conduct training programs in forensic science; and

• Conduct relevant quality assurance programs.

Additional present and future activities of NIFS include:36

• Raising the profile of forensic science; and

• Constructive and accountable resource management.

Created in 1991 as a National Common Police Service, the agency governance includes a Board of Control (comprised of three Police Commissioners, three Forensic

Laboratory Directors, and a distinguished University Provost) and a Panel of Advisors (scientists, police, legal practitioners, and medical practitioners). The multi-disciplinary nature of their directorate should not be missed, particularly the law enforcement and legal communities shoulder-to-shoulder with the scientific and medical; ‘‘. . . diversity makes for a rich tapestry, and we must understand that all the

threads of the tapestry are equal in value no matter what their color.’’ 37 I am not

well-acquainted with the existing NIFS but it certainly does sound as though it addresses many of the issues brought up in the NRC report. I suggest we might well

benefit from more detailed analysis of this existing model as we venture to build

our better mouse trap.

As for the National Institute of Science and Technology (NIST) specifically, I feel

that there are their continued efforts to improve forensics will remain beneficial. In

fact, the NRC report calls for their involvement in setting accreditation and certification standards.38 While NIST clearly has a demonstrated record of unsurpassed

technical in many scientific areas, it lacks an established history with regard to the

complexities and intricacies of the interaction of law enforcement, legal, and governmental issues so vital to operations within the forensics environment. The day-today application of forensics means working with less than optimal evidence and trying to obtain the best possible result, then reporting to the appropriate entities. The

NIST expertise in laboratory standards does not translate well into the larger issues

of accreditation & certification implementation, practitioner professionalism and

ethics, or administrative areas. Nor, quite honestly, is there likely to be an easy

buy-in from the forensics system as a whole given the shortcomings enumerated.

I look forward to working with all those with a sincere interest in providing timely delivery of the highest quality forensic science services to all. With continued effort, the NAS report is a significant step in that direction. In closing, I believe that

the Path Forward for forensic sciences, as outlined in the national Academy of

Sciences report is best served by that old adage, ‘‘good enough seldom is.’’ The

American people deserve better.

BIOGRAPHY FOR JAMES C. UPSHAW DOWNS

James Claude Upshaw (‘‘Jamie’’) Downs, M.D., is coastal Georgia’s first Regional

Medical Examiner.

He has been continuously employed as a Medical Examiner since 1989 and was

Alabama’s State Forensics Director and Chief Medical Examiner from 1998 to 2002.

Dr. Downs has lectured extensively in the field of forensic pathology and has preVerDate 11-MAY-2000 14:26 Jun 13, 2009 Jkt 047720 PO 00000 Frm 00035 Fmt 6633 Sfmt 6621 C:\DWORK\T&I09\031009\47720 SCIENCE1 PsN: SCIENCE1
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sented at numerous national and international meetings in the fields of anatomic

and forensic pathology. He is a consultant to the FBI Behavioral Science Unit in

Quantico, Virginia, having authored four chapters in their manual on Managing

Death Investigation and was primary author of the FBI’s acclaimed Forensic Investigator’s Trauma Atlas. He has authored several books and chapters in the field of

forensic pathology and child abuse, including Abusive Head Trauma in Infants and

Children: A Medical, Legal & Forensic Reference with CD–ROM and Child Fatality

Review: A Clinical Guide and A Color Atlas (in press). He has lectured regularly

at the National Forensic Academy and at the FBI’s National Academy. Areas of special interest include child abuse and police use of force. Professional activities have

included service on numerous professional boards and committees.

He has testified in numerous State and federal courts, as well as before committees of the United States Senate and House of Representatives.

Dr. Downs is on the Board of Advisors for the Law Enforcement Innovation Center at the University of Tennessee, the Board of Directors of the National Association of Medical Examiners, the Board of Directors of the Consortium of Forensic

Science Organizations (Vice Chair), and the National Forensic Science Technology

Center. He also serves on the Forensic Committee of the International Association

of Chiefs of Police.

Chair WU. Thank you very much, Dr. Downs.

Mr. Neufeld, please proceed.

STATEMENT OF MR. PETER J. NEUFELD, CO-FOUNDER AND

CO-DIRECTOR, THE INNOCENCE PROJECT

Mr. NEUFELD. Good morning, Mr. Chair and Members of the

Committee. My name is Peter Neufeld. I am the Co-Founder and

Co-Director of the Innocence Project, and certainly I will be the

first to admit, if it wasn’t for DNA, I wouldn’t be here and there

would be no Innocence Project because it was DNA that was responsible for the exoneration of 233 men and women in this country who were wrongly convicted. Unfortunately, our research into

these cases suggests that 50 percent of them were wrongly convicted because of the use of either an unvalidated or improper forensic science testimony at their original trials, and it is our familiarity with DNA which leads me to take issue with some of the remarks made by some of the other speakers.

The underlying success and virtue of DNA and its robustness

does not come primarily from the fact that the FBI or NIJ or NIST

worked on tweaking it to make it more user friendly in the crime

labs in America. The underlying robustness of DNA comes from the

fact that for 20 years before it was ever used in a courtroom, DNA

was being broadly researched—applied research, basic research, for

research laboratories, for medical applications of DNA, and that is

the uniqueness of DNA, if you will, with respect to these other forensic disciplines that come under such harsh criticism in the NAS

report, that these other disciplines were created first and foremost

for law enforcement and so they never went through that kind of

basic or applied research that DNA enjoyed.

And for our clients, our exonerees, the findings of the NAS report

are not a total surprise. We knew about this anecdotally but fortunately it was the NAS report that looked at it methodically and scientifically and arrived at the conclusions that are reached. And one

of the key conclusions that are reached is that ‘‘With the exception

of nuclear DNA analysis, however, 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.’’ That is the finding of the reVerDate 11-MAY-2000 14:26 Jun 13, 2009 Jkt 047720 PO 00000 Frm 00036 Fmt 6633 Sfmt 6601 C:\DWORK\T&I09\031009\47720 SCIENCE1 PsN: SCIENCE1
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port, and to us, that is not a surprise because so many of our clients were convicted because of less than reliable, or less than validated, forensic science. I hold out Kennedy Brewer as an example.

He is mentioned in the written testimony. Kennedy Brewer was

convicted because a bite mark expert in Mississippi said insect

marks on this little three-year-old girl’s body were not only bite

marks but were bite marks that came from Kennedy Brewer to the

exclusion of everybody on the planet. Years later, even though this

man was sentenced to death for a crime he didn’t convict, DNA on

the semen recovered from her not only exonerated him but identified the real perpetrator, a man named Justin Albert Johnson. And

the sad thing in this case is that 18 months earlier another threeyear-old girl was killed in the same community and once again the

same bite mark expert said that someone named Lavon Brooks was

responsible for those bite marks and therefore must have been responsible for that murder. Justin Albert Johnson was nearly suspect in that other case, but because of the bite mark evidence everybody ignored Mr. Johnson and focused on the wrong person.

Every time the police department or the forensic scientists focus

on the wrong person, the real bad guy is still out there, as in this

case, committing other horrible crimes. In this case, it was a rape

and murder of a three-year-old girl. What we found in the 230 exonerations are 100 instances where the real perpetrator was ultimately identified and during those intervening years the real perpetrator committed many serious murders and violent rapes. So

when we are talking about making reforms here, we are talking

about not only helping the wrongly convicted, we are helping improve public safety for all Americans. And when people say oh, this

is old science, they should know that we tried to do an informal

survey here and we found out that there are still 200 to 300 of

these bite mark experts in the last four to five years who were testifying in these kinds of cases. Look at Brendan Mayfield and look

at the language in this report on fingerprint examination, and

what it says in the report is that the ACE–V [Analysis, Comparison, Evaluation, and Verification] does not guard against bias, is

too broad to ensure repeatability and transparency, and does not

guarantee that two analysts following it will obtain the same results. Well, no wonder two FBI agents in the Brendan Mayfield

case swore on affidavits that they were 100 percent certain that the

fingerprints on the bombing device bag in Madrid came from this

attorney named Mayfield but they were 100 percent wrong.

The problem is, when you look at the language in the NAS report, if you were not looking at forensic science but instead you

were looking at medicine, you would outlaw those products or you

would pull them from the shelf, but historically we have always

had this double standard for forensic science on the one hand and

medical science on the other, and that is what the NAS report set

out to address, to treat it with the same kind of rigor, and wherever you decide to place this thing, Mr. Chair and Members of the

Committee, the key principles are there has to be an aggressive research agenda, something that has always been lacking in forensic

science. There has to be an oversight entity concerned with validity

and reliability, something that has always been lacking in forensic

science. There has to be some government oversight of quality asVerDate 11-MAY-2000 14:26 Jun 13, 2009 Jkt 047720 PO 00000 Frm 00037 Fmt 6633 Sfmt 6601 C:\DWORK\T&I09\031009\47720 SCIENCE1 PsN: SCIENCE1
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1Garrett and Neufeld, Virginia Law Review, Vol. 95, No. 1, March 2009, p. 8. 2 Ibid., p. 13. 3Strengthening Forensic Science in the United States: A Path Forward, Committee on Identifying the Needs of the Forensic Science Community, The National Academies Press (2009), p.

5–5.

surance, of accreditation, of certification. If those recommendations

are implemented, you will have science-based prosecutions, you will

have fewer wrongful convictions and you will have a robust forensic

science industry that becomes an incubator for innovation and

technology, not just in the United States but throughout the world.

Thank you.

[The prepared statement of Mr. Neufeld follows:]

PREPARED STATEMENT OF PETER J. NEUFELD

Thank you Chairman Gordon, Ranking Member Hall, and Members of the Committee. My name is Peter Neufeld and I am the Co-Director of the Innocence

Project, affiliated with the Cardozo School of Law, which Co-Director Barry C.

Scheck and I founded in 1992. The project is a national litigation and public policy

organization dedicated to exonerating wrongfully convicted people through DNA

testing and reforming the criminal justice system to prevent future miscarriages of

justice.

Without the development of DNA testing, there would be no Innocence Project;

233 factually innocent Americans would remain behind bars, and 17 of those 233

could have been executed. Our research into the causes of wrongful conviction reveals that police and prosecutors’ reliance on unvalidated and/or improper forensics

was the second greatest contributing factor to those wrongful convictions. Our analysis regarding wrongful convictions involving unvalidated or improper forensic

science that were later overturned through DNA testing is attached to this testimony.

Given what those DNA exonerations have taught us about the shortcomings of forensic science, the Innocence Project is extremely thankful to Congress for authorizing and appropriating funds to establish the National Academies of Science Committee on Identifying the Needs of the Forensic Science Community. By convening

some of the very best minds in the Nation to focus on the needs and shortcomings

of forensic practice and how to remedy them, the Nation has been provided with

both an alarm regarding the serious shortcomings that exist regarding forensic evidence, and a roadmap to addressing the major improvements in the forensic system

necessary to ensure the most accurate evidence—and therefore justice—possible.

I am also extremely pleased to participate in this hearing reviewing the recommendations and conclusions of the National Academies’ report Strengthening Forensic Science in the United States: A Path Forward. Thank you for the invitation

to testify before you today.

While the Innocence Project is known for its association with DNA evidence, we

are forever cognizant of the importance of non-DNA forensic evidence to determinations of justice. Our criminal justice system relies heavily on non-DNA forensic techniques. The Bureau of Justice Statistics’ 2005 Census of Publicly Funded Forensic

Crime Laboratories reported that new lab requests for DNA work consist of only approximately three percent of all of all new requests for lab work.

As our review of DNA exonerations shows, unvalidated and improper forensics

contributed to approximately 50 percent of wrongful convictions overturned by DNA

testing. In the DNA exonerations alone, we have had wrongful convictions based on

unvalidated or misapplied serological analysis, microscopic hair comparisons, bite

mark comparisons, shoe print comparisons, fingerprint comparisons,1 forensic geology (soil comparison), fiber comparison, voice comparison, and fingernail comparison,2 among the many forensic disciplines that have produced these tragic miscarriages of justice in our courts. There have even been a few innocents whose convictions relied, in part, on shoddy DNA testing in the early years of its forensic application. It comes as no surprise to us that the NAS concluded: ‘‘With the exception

of nuclear DNA analysis, however, 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.’’ 3 The

overarching problem has been that all too frequently, these other forensic disciplines

have been improperly relied upon to connect our innocent clients to crime scene evidence.

35

4 Ibid., p. S–12. 5 Ibid., p. 5–25. 6 Ibid., p. 5–26. 7 Ibid., p. 5–26.

Just as DNA exonerations reveal inherent shortcomings in other forensic disciplines, the evolution and regulation of DNA in the forensic setting (from basic research to crime lab and to casework) contrast starkly with the near total absence

of validation and demonstrable reproducibility for many other forensic technologies.

Long before there was a national forensic DNA testing program, the National Institutes of Health (NIH) and others funded and conducted extensive and relevant basic

research and followed it with applied research. Scientists appreciated the challenge

of transferring the technology from research lab to clinical lab and from clinical lab

to crime lab. The forensic methods were validated for case work, and individual

crime labs further validated the kits and protocols for use in their own laboratory

settings.

In contrast to DNA, the vast majority of non-DNA forensic assays, which have

often been erroneously used to suggest an individual match, have never been subjected to basic scientific research or federal review. Moreover, as pointed out by the

NAS, neither the FBI nor the National Institute of Justice have, over the years,

‘‘recognized, let alone articulated, a need for change or a vision for achieving it. Neither has full confidence of the larger forensic science community. And because both

are part of a prosecutorial department of the government, they could be subject to

subtle contextual biases that should not be allowed to undercut the power of forensic

science.’’ 4 Without a push for vigorous adherence to the scientific method, innocent

people have gone to prison or death row while the real perpetrators remained at

liberty to commit other violent crimes.

The NAS report references several of the forensic disciplines which have gone unregulated and without proper validation and reliability:

• Hair Comparisons:

‘‘No scientifically accepted statistics exist about the frequency with which

particular characteristics of hair are distributed in the population. There appear to be no uniform standards on the number of features on which hairs

must agree before an examiner may declare a ‘‘match.’’ 5 The report notes

that along with the imprecision of microscopic hair analysis, the ‘‘problem of

using imprecise reporting terminology such as ‘associated with,’ which is not

clearly defined and which can be misunderstood to imply individualization.’’ 6

The committee found no scientific support for the use of hair comparisons for

individualization in the absence of nuclear DNA. Microscopy and mtDNA

analysis can be used in tandem and may add to one another’s value for

classifying a common source, but no studies have been performed specifically

to quantify the reliability of their joint use.’’ 7

Jimmy Bromgard spent 14.5 years in prison for the rape of an eight-year-old girl

that he did not commit. The semen found at the crime scene could not be typed,

so the forensic case against Bromgard came down to the hairs found at the crime

scene. The forensic expert, Arnold Melnikoff, a hair examiner and Laboratory Manager of the State crime lab in Montana, testified that the head and pubic hairs

found at the scene were indistinguishable from Bromgard’s hair samples. He

claimed that there was a one in 100 chance of a head hair ‘‘matching’’ an individual,

and a one in 100 chance of a pubic hair ‘‘matching’’—and then he multiplied these

statistics to say that there was less than a one in 10,000 chance that the hairs did

not belong to Bromgard. This damning testimony was also fraudulent: there has

never been a standard by which to statistically match hairs through microscopic inspection. The criminalist took the impressive numbers out of thin air.

• Bite mark Comparisons:

‘‘Although the methods of collection of bite mark evidence are relatively noncontroversial, there is considerable dispute about the value and reliability of

the collected data for interpretation. Some of the key areas of dispute include

the accuracy of human skin as a reliable registration material for bite marks,

the uniqueness of human dentition, the techniques used for analysis, and the

role of examiner bias . . .. Although the majority of forensic odontologists are

satisfied that bite marks can demonstrate sufficient detail for positive identification, no scientific studies support this assessment, and no large population studies have been conducted. In numerous instances, experts diverge

widely in their evaluations of the same bite mark evidence, which has led to

questioning of the value and scientific objectivity of such evidence . . .. Bite

36

8 Ibid., p. 5–37. 9 Ibid., p. 5–12. 10 Ibid., p. 5–13. 11 Ibid., p. 5–21. 12 Ibid., p. 3–16. 13 Ibid., footnotes 75 and 76, which indicated that contextual bias and confirmation bias

played an important role in the misidentification. 14 Ibid., p. 5–17. 15 Ibid., p. 5–18. 16 Ibid., p. 5–26.

mark testimony has been criticized basically on the same grounds as testimony by questioned document examiners and microscopic hair examiners.

The committee received no evidence of an existing scientific basis for identifying an individual to the exclusion of all others.’’ 8

Kennedy Brewer spent seven years on death row in Mississippi for the murder

of a three-year-old girl that he did not commit. An independent examiner, forensic

odontologist, Dr. Michael West, analyzed several marks on the child’s body that he

testified were bite marks inflicted by Brewer, and then only by his top two teeth.

West said that ‘‘within reasonable medical certainty,’’ Brewer’s teeth caused the

marks, and then explained that ‘‘reasonable medical certainty’’ meant that Brewer

was the source of the marks. The ‘‘bite marks’’ turned out to be caused by insects

in the pond where the girl’s body was discovered and by the natural sloughing of

skin a body experiences when left in the water for several days.

• Fingerprint Comparisons:

‘‘ACE–V provides a broadly state framework for conducting friction ridge analyses. However, this framework is not specific enough to qualify as a validated

method for this type of analysis. ACE–V does not guard against bias; is too

broad to ensure repeatability and transparency; and does not guarantee that

two analysts following it will obtain the same results.9 Errors can occur with

any judgment-based method, especially when the factors that lead to the ultimate judgment are not documented.10 As was the case for friction ridge analysis and in contrast to the case for DNA analysis, the specific features to be

examined and compared between toolmarks cannot be stipulated a priori.’’ 11

Although not a DNA exoneration, Brandon Mayfield’s case was referred to in the

NAS Committee’s report as, ‘‘surely signal caution against simple, and unverified,

assumptions about the reliability of fingerprint evidence.’’ 12 Brandon Mayfield was

arrested as a material witness in the Madrid Bombings of March 2004. Several FBI

fingerprint experts ‘‘matched’’ his print to fingerprints lifted from a plastic bag containing explosive material found at the crime scene. Mayfield, a Portland Oregon

lawyer, who had converted to Islam and married an Arab woman, had his prints

in the national database because years earlier he had served in the U.S. armed

forces. Mayfield’s print was one of 20 prints returned from a search of the national

Automated Fingerprint Identification System (AFIS) as being very similar to the

crime scene print. Following a further visual inspection of the 20 prints, two FBI

fingerprint experts swore in affidavits that they were 100 percent certain that the

crime scene prints belonged to Mayfield. When the Spanish police ultimately arrested the real source of the fingerprint, the FBI initially defended their ‘‘mistake’’

as the result of poor digital image. Obviously, the two FBI experts could not have

been 100 percent certain if the image was poor. Several major investigations followed, including one conducted by the Inspector General of the Department of Justice.13

The NAS report revealed similar lapses in validation and inappropriate associations in several other forensic disciplines:

• Shoe Print Comparisons:

‘‘[I]t is difficult to avoid biases in experience-based judgments, especially in

the absence of a feedback mechanism to correct an erroneous judgment.14

[C]ritical questions that should be addressed include the persistence of individual characteristics, the rarity of certain characteristic types, and the appropriate statistical standards to apply to the significance of individual characteristics.’’ 15

• Fiber Comparisons:

‘‘Fiber examiners agree, however, that none of these characteristics is suitable for individualizing fibers (associating a fiber form a crime scene with

one, and only one, source) and that fiber evidence can be used only to associate a given fiber with a class of fibers.’’ 16

37

17 Ibid., p. 5–17. 18 Ibid., p. 5–18. 19 Ibid., p. 4–2.

• Other Pattern/Impression Evidence: Fingernail Comparison, Voice

Comparison, Forensic Geology:

‘‘Although one might argue that those who perform the work in laboratories

that conduct hundreds or thousands of evaluations of impression evidence develop useful experience and judgment . . . the community simply does not

have enough data about the natural variability of those less frequent impressions, absent the presence of a clear deformity or scar, to infer whether the

observed degree of similarity is significant.17 Also, little if any research has

been done to address rare impression evidence. Much more research on these

matters is needed.’’ 18

The aforementioned disciplines all require further validation. The Innocence

Project agrees with the NAS report regarding what is needed: ‘‘(1) information about

whether or not the method can discriminate the hypothesis from an alternative, and

(2) assessment of the sources of error and their consequences on the decisions returned by the method.’’ 19

It is critical that we all understand the real world consequences of the forensic

problems I and the NAS have discussed. These were not incidents reflective of one

bad actor, or one wayward jurisdiction; our review of the Nation’s DNA exonerations

showed that seventy-two forensic analysts from 52 different labs, across 25 states

had provided testimony that was inappropriate and/or significantly exaggerated the

probative value of the evidence before the fact finder in either reports or live courtroom testimony. According to the NAS Forensic Committee’s report, the shortcomings in education, training, certification, accreditation, and standards for testing

and testifying that contributed to wrongful convictions in those cases threaten the

integrity of forensic results across virtually all non-DNA forensics.

It is important to recognize that these 233 individuals represent just the tip of

the iceberg. In the vast majority of cases DNA is simply useless to indicate innocence or guilt—in fact, DNA is estimated to be probative in only 10 percent of all

murder cases, and a far lower percentage of all criminal cases. What’s more, in most

cases where convicted people seek our representation to use post-conviction DNA

testing to prove their innocence, we don’t have the opportunity to conduct a DNA

test because the biological evidence has either been lost or destroyed. And in some

cases, when we have the evidence and testing it can prove innocence, the state simply refuses to allow the test that can indicate the truth.

DNA testing has become the gold standard in forensics because it is science-based

and tested. It was discovered through basic research and later applied to clinical

DNA diagnostics, developing under the same scrutiny given to medical devices. So

when it entered the courtroom, there was already a tremendous body of literature

in highly respected scientific journals, amassed over a number of years, to support

and validate its accuracy. Subsequently, the National Research Council twice convened some of the top scientists from leading research universities to discuss not

only the scientific application of DNA in courts, but also to validate the statistical

implications of the data that was produced.

Non-DNA forensic assays have not been scientifically validated, and there is no

formal apparatus in place to do so for developing forensic technology. Though the

technology has changed over time, the sources of human error, misinterpretation,

and misconduct have not. Most of the assays used in law enforcement have no other

application; they were developed for the purpose of investigation, prosecution and

conviction and took on a life of their own without being subjected to the rigors of

the scientific process. Essentially, the assays were simply accepted as accurate.

Many of these forensic disciplines—some of which are experience-based rather than

data-based—went online with little or no scientific validation and inadequate assessments of their robustness and reliability. No entity comparable to the Food and

Drug Administration ever scrutinized the forensic devices and assays, nor were

crime laboratories subject to mandatory accreditation and forensic service practitioners subject to certification. Enforceable parameters for interpretation of data, report writing, and courtroom testimony have also never been developed.

While there is research and work that establishes what needs to be done to improve various forensic practices, the fact is that no existing government entity, nor

the forensics community itself, has been able to sufficiently muster the resources

nor focus the attention necessary to use the existing information as a launching pad

to comprehensively improve the integrity of non-DNA forensic evidence. The NAS

report is the first step—and a tremendous one—toward fully establishing and acting

38

20 Ibid., p. 3–20.

upon what we already know. From the perspective of justice and public safety, it

is tragic that it has taken this long to act on the desperate need to improve the

quality of forensic evidence. Given the clear and comprehensive message delivered

by the NAS on this subject, further delay would be unconscionable.

The report calls for Congress to act, strongly and swiftly. This is because as I

speak, many of these assays and technologies are being used in investigations, prosecutions and convictions daily everywhere in this country, despite their potential to

mislead police, prosecutors, judges and juries away from the real perpetrators of

crime. Although the conventional wisdom once stated that a sound defense and

cross-examination would enable courts to properly assess the strength of forensic

evidence, the Report unequivocally states and the post-conviction DNA exoneration

cases clearly demonstrate that scientific understanding of judges, juries, defense

lawyers and prosecutors is wholly insufficient to substitute for true scientific evaluation and methodology. It is beyond the capability of judges and juries to accurately

assess the minutiae of the fundamentals of science behind each of the various specific forensic assays in order to determine the truth in various cases, and it is an

unfair and dangerous burden for us to place on their shoulders. Indeed, the NAS

report deems that ‘‘judicial review, by itself, will not cure the infirmities of the forensic science community.’’ 20

It is absolutely clear—and essential—that the validity of forensic techniques be

established ‘‘upstream’’ of the court, before any particular piece of evidence is considered in the adjudicative process. For our justice system to work properly, standards must be developed and quality must be assured before the evidence is presented to the courts—or even before police seek to consider the probative value of

such testing for determining the course of their investigations. There is simply no

substitute for requiring the application of the scientific method to each forensic

assay or technology, as well as parameters for report writing and proper testimony,

as part of the formal system of vetting the scientific evidence we allow in the courtroom.

The Innocence Project whole-heartedly supports the primary recommendation of

the National Academy of Sciences’ report to create a federal National Institute of

Forensic Sciences. We believe that federal oversight body must conduct research

into the scientific validity and reliability of forensic disciplines and set standards

for their use in the courtroom. A federal entity is needed to ensure that we don’t

have 50 states operating under 50 definitions of ‘‘science’’; forensic science in America needs one standard of science so we can have one standard for justice. As Congress considers the establishment of such an agency, there are several principles

that it should adhere to.

First, the National Institute of Forensic Sciences should focus on three critical priorities: (1) basic research, (2) assessment of validity and reliability, and (3) quality

assurance, accreditation, and certification. This body should identify research needs,

establish priorities, and precisely design criteria for identifying the validity and reliability of various extant and developing forensic assays and technologies. Then,

using the data generated by research, this entity should then undertake a comprehensive assessment of the validity and reliability of each assay and technology

to develop standards by which the practitioners must adhere and under which their

reporting and court room testimony must operate. Given NIST’s reputation as a

highly respected and admired standard-setting agency, as well as its history of employing Nobel prize-winning scientists who conduct superb research and translate

basic science to applied commercial standards and its tradition of objective, independent, science-grounded work, we agree with the NAS report that NIST would

make a sensible partner for setting those standards. The Innocence Project also believes strongly that this body must play a central role in accreditation and certification. Laboratories that seek accreditation must have quality controls and quality

assurance programs to ensure their forensic product is ready for the courtroom. Individual practitioners must meet certain training and education requirements, continuing education, proficiency testing, and parameters for data interpretation, report

writing and testimony.

Second, to ensure this agency’s objectivity and scientific integrity, and to prevent

any real or perceived institutional biases or conflicts of interest, it is paramount

that NIFS be a non-partisan, independent agency, with its basic and applied research products and standards grounded in the best traditions of the scientific

method. We agree with the NAS report that ‘‘Governance must be strong enough—

and independent enough—to identify the limitations of forensic science methodoloVerDate 11-MAY-2000 14:26 Jun 13, 2009 Jkt 047720 PO 00000 Frm 00042 Fmt 6633 Sfmt 6621 C:\DWORK\T&I09\031009\47720 SCIENCE1 PsN: SCIENCE1
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21 Ibid., p. 2–19. 22 In the wake DNA exonerations of the wrongfully convicted, that same DNA analysis has

enabled us to identify 100 of the true suspects and/or perpetrators of those crimes.

gies and must be well connected with the Nation’s scientific research base in order

to affect meaningful advances in forensic science practices.’’ 21

Third, this entity will coordinate all existing and future federal functions, programs, and research related to the forensic sciences and forensic evidence.

Fourth, in order for this entity to be successful, forensic oversight must be obligatory and an effective mechanism of enforcement of these standards must exist. After

having been given the proper direction and opportunity to comply, noncompliant

laboratories or practitioners should lose their ability to participate in the business.

These corrective actions can be overseen in conjunction with other government agencies; however enforcement powers must be under the command and control of the

NIFS.

Fifth, this entity must be a permanent program in order to ensure ongoing evaluation and review of current and developing forensic science techniques, technologies, assays, and devices; and continued government leadership, both publicly

and through private industry, in the research and development of improved technology with an eye toward future economic investments that benefit the public good

and the administration of justice.

Finally, Congress must allocate adequate resources to the NIFS so that it can undertake its critical work quickly, effectively, and completely, and so its mandates

can be executed in full.

Our work has shown the catastrophic consequences of such a lack of research,

standards, and oversight. It is clear that the Nation’s forensic science community

is ready and willing to work with the Federal Government, law enforcement, and

other scientists to ensure a brighter future for forensic science. Science-based forensic standards and oversight will increase the accuracy of criminal investigations,

strengthen criminal prosecutions, protect the innocent and the victims, and enable

law enforcement to consistently focus its resources not on innocent suspects, but on

the true perpetrators of crimes. For as the Nation’s post-conviction DNA exonerations have proven all too clearly, when the system is focused on an innocent suspect,

defendant or convict, the real perpetrator remains free to commit other crimes.22

The investment of time, effort and resources necessary to deliver us from our false

reliance on some forensic assays will pay tremendous dividends in terms of time,

effort and resources not wasted by virtue of this false reliance. In short, it will make

criminal investigations, prosecutions and convictions more accurate, and our public

more safe—and perhaps most importantly, justice more assured.

We have been directed toward an irrefutable and unprecedented opportunity to

significantly improve the administration of criminal justice in the United States. By

evaluating and strengthening forensic science techniques with the strong, well-funded, and well-staffed entity we described, we can create a formal system to ensure

that criminal justice is accurately conducted and justly performed. The research and

development of both existing and new forensic disciplines will create new industries

and jobs in the U.S., just as the development of DNA technologies and their applications has done. With your support, we will not only significantly enhance the quality

of justice in the United States, but we will also minimize the possibility that tragedies like that endured by the Nation’s 233 (and counting) exonerees and their families will needlessly be repeated time and again.

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53

BIOGRAPHY FOR PETER J. NEUFELD

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

non-profit affiliated with the Benjamin N. Cardozo School of Law. He is also a partner in the civil rights law firm Cochran Neufeld & Scheck, LLP.

The Innocence Project began in 1992 as a clinical program with the single focus

of exonerating the wrongfully convicted. In April, 2007, the Project celebrated the

200th post conviction DNA exoneration. The work has expanded to bring substantive reform to the system responsible for unjust imprisonment, with particular

attention to improving eyewitness identification procedures, requiring the recording

of police interrogations, and enhancing the reliability of forensic science. The Project

54

has also contributed to a significant shift in the national debate on the death penalty. Entrenched positions predicated on politics and morality have given way to an

emerging consensus on the relationship between erroneous outcomes and irreversible punishment.

Peter’s law firm represents victims of constitutional violations in which the cases

have the potential to produce institutional reform. The firm’s clients have included:

• Abner Louima, the Haitian-American tortured by police officers in a precinct

bathroom. The civil case was the first in the Nation to hold a police union

accountable for acts of brutality inflicted by its members.

• Two of the four young black and latino athletes wounded by New Jersey State

troopers for the crime of ‘‘DWB’’—driving while black. The case became instrumental in raising the Nation’s consciousness about racial profiling.

• Thomas Pizzuto, who entered Nassau County Jail on a 90-day sentence for

a Vehicle & Traffic Law violation but received a death sentence at the hands

of correction officers. His death precipitated a federal investigation that led

to a Department of Justice consent decree to implement much needed reform

at the county jail.

Peter has litigated and taught extensively in both the ‘‘hard’’ and behavioral forensic sciences. Before co-founding the Innocence Project at Cardozo Law School, he

taught trial advocacy at Fordham University Law School and was a staff attorney

with the Legal Aid Society of New York. For the last decade he has served on the

New York State Commission on Forensic Science, with responsibility for regulating

all State and local crime laboratories. He has published more than a dozen articles

on science and law, and is the co-author, along with Jim Dwyer and Barry Scheck

of the book entitled Actual Innocence: When Justice Goes Wrong And How To Make

It Right.

A 1972 graduate of the University of Wisconsin, Peter Neufeld received his law

degree in 1975 from New York University School of Law. You can read about the

Innocence Project at www.innocenceproject.org.

DISCUSSION

Chair WU. Thank you very, Mr. Neufeld.

Before we get—we are now in the question and comment period

of the hearing, and the Chair first recognizes himself for five minutes.

Before we get to other crucial issues like level of support, level

of funding, whether to create a new independent agency or to perhaps approach that in a different way, and transition issues, it

seems to me there may be some disagreement or at least difference

in emphasis among the witnesses about the current state of forensic science. When I hit my first memo on this topic, I have to say

that I was a little bit stunned. One of the sentences in that memo

said with the exception of DNA matching, the commonly used forensic tests such as fingerprint analysis, ballistic testing, hair

matching, pattern recognition and paint matching are based more

on workers’ experience than on rigorous scientific protocols. And I

had the same reaction to that sentence that I did when I was visiting my local medical school and they were discussing evidencebased medicine. I had a very brief exposure to medical school in my

training days and my first reaction was, gee, I thought all the stuff

you all did was evidence-based. It took me a while to understand

evidence-based medicine and what they were getting at. Perhaps

the panel for our edification could discuss with me, or with us, your

concerns about whether there is a sound scientific basis for many

of the tests that we commonly rely on in our forensic testing, and

I don’t know if we want to go from right to left, left to right, or

whether any of you want to proceed.

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Mr. Neufeld, forgive me. I am reverting to my old Germanic past.

I pronounced your name Neufeld.

Mr. NEUFELD. I appreciate it actually. Thank you. Very few people do but that is the right pronunciation.

I am not a scientist and I am not——

Chair WU. Your microphone.

Mr. NEUFELD. I am not a scientist and I am not the best person

to answer your question, but these individuals who are on this

panel all have, obviously, their own subjective experience and also

their own special disciplines in the case of some of them which they

may or may not wish to defend. The point of the National Academy

report, however, is it is a blue-ribbon body of some of the best

minds, not just in the forensic science community but in the hard

sciences as opposed to, you know, in the basic sciences, which are

not represented in this panel right now before you with the exception of the eminent physician who is sitting to my right. And what

I will say is, it was their conclusion that it was lacking and we

can’t simply ignore that conclusion that is based on a two-year

study that they did.

Chair WU. Well, realizing that you are not a scientist, perhaps

we can come back to you at some point and you could address either examples or analytically what would be different if there were

a scientific basis to some of the forensic work that we do.

Dr. Downs, would you care to address this issue? Does this make

a difference or does it not, or is there a problem here?

Dr. DOWNS. Mr. Chair, I think it is a great question and your

model of evidence-based medicine I think is dead on. In fact, in my

written comments I address the whole source of that, which was

the Flexner Report from back at the turn of the last century.

Chair WU. And the question here is whether we are at a similar

inflection point for, if you will, a slightly different profession just

as the Flexner Report and the reforms of American medical education made a significant difference. Is there a need to do something that dramatic in this field at this point in time?

Dr. DOWNS. I think for the sake of public competence that—the

analogy I use is a racecar driver. They can win championships on

the track. They have to go back now and get their driver’s license

and prove that they can do what we already know they can do

very, very well, and I think there is good science behind all of the

testing that we do. The problem is, we kind of got ahead of it and

we never went back, because as Mr. Neufeld correctly points out,

it came through a different venue. It came through law enforcement and the courts never asked us for that scientific basis as a

starting point. We know it works.

Chair WU. That analogy is very helpful but walk me through

with some specificity. What kind of difference would it make if we

were to bring scientific or analytical rigor, if you will, rather than

the contrasts with experiential work that we perhaps—the experiential approach with which we have brought to this in the past.

Dr. DOWNS. How does one make a call on a fingerprint? How

many specific points in a fingerprint are required to call that a

match? In the past that has been based purely on experience; when

the examiner reaches a certain comfort level, they make the call.

We don’t have a way or metric to say it takes ten points of identiVerDate 11-MAY-2000 14:26 Jun 13, 2009 Jkt 047720 PO 00000 Frm 00059 Fmt 6633 Sfmt 6601 C:\DWORK\T&I09\031009\47720 SCIENCE1 PsN: SCIENCE1
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fication, twenty points. So there’s no ‘‘scientific basis’’ for where

that line is, and if we are to apply the standards like we do in medicine to say okay, we have these test results, therefore we can with

confidence make this call, that is I think what we are trying to get

to.

Chair WU. Do any of the other witnesses want to address this

point?

Mr. Marone.

Mr. MARONE. Mr. Chair, I think to say we need additional research is the key, additional research. What has happened in the

past has—research has been done at any number of levels, usually

by the practitioners, the people working in the field, whether it be

for firearms identification or fingerprints, and I will use firearms

examination as the first example. There have been a number, literally probably hundreds of studies where individuals have taken

ten sequentially manufactured barrels to see just how close they

looked before we do anything to them and can we still differentiate

them even though they have come off the assembly line one after

the other. But the key is, those studies haven’t been broad enough

or have looked at enough issues, statistically analyzed. Maybe they

didn’t answer all the questions that an individual would want and

so we need to take those same kind of studies, broaden them, make

sure that all the questions, issues variables are answered, and that

would give you the scientific basis. So a lot of the work is out there,

it just hasn’t answered all the questions. But what I can say is, of

all the work that has been done, all the research that has been

done in fingerprinting, all the research that has been done in firearms identification, nothing has led anyone to believe that it isn’t

proper, that it can’t be done, which if you are going to truly look

at it scientifically, that is a two-edged sword. Just because there

isn’t full validation, you can’t jump to the conclusion that it is empirically wrong when you do have some research that indicates that

there is some, you just need more work. So I think that is where

we are.

There is a lot of research that has been done. A lot of it hasn’t

been published in technical notes and so forth, and it needs to come

up to that same level of rigor in peer-review journals, and so forth,

so that everyone can look at it, try to reproduce it, and so forth.

So that I think is the issue that we need to make the research that

has been done more broad based and more really attuned to what

exactly the question is.

Mr. NEUFELD. Mr. Chair, can I respond to that for one second?

Because I do disagree.

Chair WU. Yes, a response here, and then I intend to return to

this issue because it is a core issue, but I am a few minutes over

my time. With Mr. Smith’s forbearance, go ahead.

Mr. NEUFELD. My understanding of the scientific method, and I

am not an expert in it, I don’t have a post-doc in it, is the burden

is on the proponent of any scientific hypothesis to prove that it is

right. It is not our burden to show that what they are doing is

wrong, okay? They have to make out sufficient basis to demonstrate that something has been scientifically validated. That is

number one. Number two, in response to what Dr. Downs said,

could you imagine in a medical context, because he was talking

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about fingerprints, if ten different examiners looked at the same

cells and had ten different definitions as to whether they were simply abnormal as opposed to malignant? How could we have confidence in medicine if we had that range of opinion? It wouldn’t

work in medicine. It can’t work in forensic science.

Chair WU. Well, Mr. Neufeld, I may not have a full understanding of medicine science but my impression is that with guidance from other sources that actually is what happens in imaging,

that is, you see a pattern of shadows and light and, you know,

based on 10, 100, 1,000 reads, you develop patterns and they become more analytically accurate with additional data but ultimately it is a match against that background.

Mr. NEUFELD. But you wouldn’t expect that there would be 20

different opinions on the same data looked at by 20 different analysts, okay, and that is the difference that I am talking about.

Chair WU. That is absolutely correct. You would not hope for 20

different opinions.

Mr. NEUFELD. Right.

Chair WU. But you might get two very different opinions from

two different readers.

Mr. NEUFELD. I understand that, and the third point of this is

as follows. You know, what you did have in medicine at the early

part of the 20th century was a commitment to sort of revolutionize

and transform medicine in this country. You had the creation of

the National Institutes of Health [NIH] with a very, very ambitious

research agenda, and we have never had anything—I am not even

talking about trying to do something as complex as that or as

grand as that, but you have never had a kind of freestanding research agenda for forensic science, not just to validate that which

is already out there, if it indeed can be validated, but also to encourage, okay, as I am sure this committee is concerned with, that

kind of incubator for new technology, for new forensic science.

What is going to be the next DNA, the next truth machine that we

can build the industry out that will be very successful, not only in

helping forensic science but also in helping commerce and exporting it? You know, we want a research agenda that can do all of

those things and it is sorely lacking at this point.

Chair WU. We will return to this issue, and I will be asking

tougher questions of the other perspective on this.

Mr. Smith.

Mr. SMITH. If you are on a roll, go ahead.

Chair WU. Well, I think that given the presence of other Members here, we want to get a round in the interest of fairness. Mr.

Smith, please proceed. I am reining myself in.

Mr. SMITH. Thank you, Mr. Chair.

For all of the witnesses, the entire panel here, if you wish to respond, certainly there are a lot of technical recommendations in the

report. What would stand out to you as the highest priority, if you

wouldn’t mind, starting with Mr. Marone?

Mr. MARONE. I don’t think you have a single highest priority.

They are very much leveled, if you will. If you look at establishing

maybe a priority based on what can be attained first, not easiest,

but with least problematic issues, moving on the accreditation and

certification, certification of individuals and accreditation of laboraVerDate 11-MAY-2000 14:26 Jun 13, 2009 Jkt 047720 PO 00000 Frm 00061 Fmt 6633 Sfmt 6601 C:\DWORK\T&I09\031009\47720 SCIENCE1 PsN: SCIENCE1
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tories. Those are two already vibrant, rigorous programs that are

out there and can achieve significant gains in the community. The

certification for the individuals and the accreditation because even

though I said that, you know, almost 85, 90 percent of the laboratories are already accredited, one of the other issues that is out

there is the other service providers. This is the ID section in a police department where they do fingerprint comparison, you know.

There is not that much accreditation or certification out there, certification to a certain extent, but there is not that much accreditation out there. So by taking that first along with—and then education and somewhere in there you have to put in resources because we can train individuals, we can certify the individuals, but

if they don’t have the equipment or the people to provide the analysis at the other end, then we are at mixed purposes.

So your question, I am not trying to go around the circle, is we

kind of need them all and they are separate lines that can be done

in parallel, the accreditation, the resources. Laboratories are just

up to their eyeballs in casework. We have got to fix that, and it

is not a quick fix, well, we give them a whole bunch of money for

overtime, or we outsource to provide laboratories or so forth because that only fixes it now and then two years from now we are

right back in the same situation. So the resource issues, the accreditation and certification goes a long way towards a lot of these

other issues as far as competency, effectiveness of the analysis and

so forth. You look at a lot of the recommendations and they can

really be subsumed into one, all the quality control issues into accreditation and certification. Those all can be covered by those programs so I would place those first and then education and certainly

resources. You pick which one you want to do first.

Mr. SMITH. Any estimate of cost?

Mr. MARONE. If I had that answer, I wouldn’t be here right now

speaking in the capacity I am. I would probably, you know, have

a global conglomerate answering that question to everybody. You

know, we look at what has happened in DNA and the modest, relatively modest now, amount of money that has gone to DNA analysis in the five years that it has been. We have seen tremendous

progress as far as capacity enhancement and backlog reduction,

and really let us not worry about how much actually was in the

appropriations, how much money made it to the laboratories, and

it was probably $50 million, maybe $60 million a year, and yet we

saw progress. It is still not enough but we saw progress. So multiply that by all the other disciplines.

You know, I hesitate to throw a figure out because then somebody runs with it, you know, and everybody is throwing out trillions of dollars now. I don’t think we have any idea what this cost

may be. Certainly accreditation, several million dollars for accreditation, anywhere between $5 million and $50 million to make accreditation happen, and that is not counting the cost from the laboratory’s perspective, the time that they must spend preparing for

that. The same thing for certification. We have no—I have no idea

how many—how much it might cost but, you know, it is a large figure, if that helps you. You know, we batted that around the committee and it is like there is no way to do that. You have to first

find out what the issues are before you can figure out what it is

59

going to cost, what the numbers are, and we have yet to define the

number of service providers outside forensic laboratories, how

many PD ID [Police Department Identification] units are there and

so forth.

Mr. SMITH. Thank you. Anyone else?

Ms. HENDERSON. Yes. I think what we really need to do is do a

strategic plan and I think this is—my learned colleague at the end

of the table and on this end of the table as well. One of the things

that we need to do is, what are our priorities, and I think that is

the key. You know, the NAS committee listed things, they have

recommendations, but there is no strategic plan put forth, and I

think that is very critical, and also I have to say with Peter, research is critical. If we don’t know what is going on in all the different disciplines, and this is what is interesting about forensic

science. We are a multidisciplinary group. We are not like anything

else. We are not like medicine, although we have, you know, forensic pathologists like Jamie with us, but we have so many different

diverse groups within forensic science. But a lot of research could

be done and in fact that is where you take the institutions, for example. You could use universities and work in conjunction with

laboratories because the laboratories are taxed. They are overtaxed

with many things that they have to do, and I think Pete is correct.

We don’t know how much money this is going to cost. We have to

take a look—what is in existence, and that is why I said let us

start with some immediate action like what can we do with existing things that are in place like accreditation and like certification

programs. There are quite a few of them. And then work from

there to improve, identify the research priorities and then move

forward. I think that would be practical, which is one of the things

in this economy we need to do.

Mr. SMITH. Thank you.

Dr. Downs.

Dr. DOWNS. I think I agree with what my predecessors have said.

I would also say I think that as a practical matter, given that the

courts are relying on this fingerprint evidence and firearms evidence, for example, and the other pattern evidence, that we have

to validate that science for those purposes, for courtroom purposes

because that evidence is already ‘‘in process’’ and we have people

waiting for trial. We need to address that issue, I think, as one of

those initial priorities.

Mr. SMITH. Mr. Hicks.

Mr. HICKS. I would just like to voice my agreement to all that

has been said here so far. I think it is—the elements are there to

draw upon, you know, to enhance and to help address some of the

critical questions that have been raised. I suspect much of that information is already there. It just needs to be put into a package

and appropriate form and then subjected to scientific scrutiny.

That would be helpful for the courts. But it ought to be recognized,

I think, the context of how some of these now-called sciences

evolved, fingerprints and firearms identification, fiber identification, things like that. I mean, this was all investigative techniques.

These were undertaken to try to help bring some information about

a criminal event that has taken place.

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So one of the first roles that the crime laboratories initially had

to face was just simply identifying the white powdery substance as

a controlled substance meeting the critical element of the law, so

that of course involved in chemists being hired at the laboratory.

But prior to that, the question of trying to reconstruct the criminal

event and trying to then test what can be observed at the crime

scene based—test that against the statements of witnesses that

may be there and again trying to assess and reconstruct just exactly what took place before it is then decided whether there are

any charges to be brought and how that would proceed in court.

So consequently, a lot of the development, particularly of the pattern-type recognition, the observation-type techniques, such as fingerprints, such as firearms identification, other things like that,

evolved in police departments probably from investigative personnel and not so much scientists and then—but in my estimation,

through the years, through organizations—forensic science organizations as these individual techniques have evolved, the agencies

had brought in people with scientific backgrounds as they have recognized that need. They probably were surprised when they first

arrived at the level of sort of scientific underpinnings there and I

think there has been a lot of work done by a lot of people to try

to address and assure themselves that they were offering opinions

confidently in their individual cases. So that is where I think again

NIST would have the—again as a short-term, efficient, quick kind

of response kind of a thing, they have the capacity to look at information that has been developed, identify where the gaps are and,

where additional information is needed, and might be able to try

to more aggressively and quickly and directly address some of the

most critical comments found in the report.

Mr. NEUFELD. It has been said that for a lot of these disciplines

that there was plenty of scientific data out there, we just didn’t collect it. One of the specific requests that was made by the National

Academy of Sciences during the time period that they had this

committee up and running, and they had public sessions was they

invited people to come in and actually produce the scientific data

that folks were referring to. And I will just use this as one small

example. Under the odontology section on bite marks, they reached

a conclusion, ‘‘The committee received no evidence of an existing

scientific basis for identifying an individual to the exclusion of all

others.’’ There is another report I read which——

Chair WU. I am sorry, Mr. Neufeld. What methodology were you

referring to there?

Mr. NEUFELD. The odontology, bite marks section, for illustrative

purposes. There was a lot of talk in the report that a lot of these

problems were known about back in 1999 when NIJ did a study,

and another report that was done in 1995 and one done in 2003,

and I think it is shortsighted if we simply believe that we can

quickly deal with a couple of these problems and then things will

be okay. When I read this report, the one thing I walk away with

is that it won’t be okay, that in fact what they are saying is because no one has ever demonstrated the will or the vision to do

these things before, that you really do need a single entity, which

they call a National Institute of Forensic Science, that can coordinate all these objectives. Yes, once that is up and running they can

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prioritize, they can decide that, for instance, some of the disciplines

that Mr. Hicks and Dr. Downs were referring to are the ones that

need to be addressed first. But you still need this national entity

that can look at the financial needs, for instance, of all the various

crime laboratories that Pete Marone was talking about.

One of the fundamental problems we have seen in forensic

science, and I don’t think there will be any disagreement in this

panel, is there has been kind of a balkanization of forensic science

in America so people have to go to 20 different pots, people have

to deal with 20 different organizations, and it would be much better if there was a single entity that could coordinate all of this and

it could create its own priorities for research, for giving out the federal money, for doing all those things that you would expect to do

if this is to be a science-based undertaking.

Mr. SMITH. Thank you very much.

Chair WU. Thank you very much.

The gentlelady from Maryland, Representative Edwards.

Ms. EDWARDS. Thank you, Mr. Chair, and thank you to the

panel. I would say I do look forward to at some point in the future

hearing directly from NIST about some of the analyses and recommendations and the way that they believe they can play a continued role in the good work that they are doing out in the fourth

Congressional District in Maryland.

To Mr. Neufeld, I really appreciate—and I have been pronouncing your name apparently wrong since 1992, but I appreciate

the work that you have done. I had the great fortune when I was

at the Arca Foundation of being able to support some of the work

of the Innocence Project and all the projects around the country

looking at DNA and obviously other evidence that resulted in people being wrongfully convicted, particularly of capital crimes and

serving life terms and facing execution, and I just think that the

work that you have done with this new technology has been an

amazing revelation into our criminal justice system and the way

that it sometimes can fail people who sometimes are of little means

and don’t have the ability to defend themselves, so thank you very

much.

I have a question really that relates to funding, and while you

may not be able to project the amount of resources that it would

take to do this work, I wonder if any of you have any estimates

across the federal landscape of the amount of resources that are already being spent in forensic sciences and technology. Because I

think with a lot of things, we are not always in a position here in

Congress of creating a new agency because we have a new field,

and that in itself could be very expensive and maybe not even very

productive. I look at the work, for example, around climate change

that is actually taking place across—which has a number of different kinds of disciplines contributing to the field and taking place

across many different agencies and now with some greater coordination out of the White House and so I wonder if you could comment about a way that we can—and particularly Ms. Henderson—

about the way that we can look at the work that is in front of us

and the recommendations which I think are important, but that we

can use some existing resources or build on those capacities rather

than creating a separate federal agency.

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Ms. HENDERSON. Well, I think if we look at what is existing and

then we would have to look, of course, at the latest legislation that

is out there but, if you have to look at different entities, it is going

to be NIST, it is going to be NIJ. There are forensic capacities that

are being utilized in the Department of Defense [DOD]. There is

the Department of Homeland Security. See, that is the thing. As

Peter pointed out, there are many little pockets out there with different resources, and in fact sometimes there is—and this goes

back to what Pete said too. There is research that is being done

that we in the forensic community are not privy to because it is in

Department of Defense or something and that is not out for peer

review, for example. So I think if we look—and I think, Pete, you

had mentioned something about that in the new economic stimulus

package. There is between $4 billion and $5 billion. Is that correct?

Ms. EDWARDS. But do you have an idea across federal agencies

of the resources? Maybe that is something that we need to figure

out to get a better handle on. Whether the resources that you are

talking about that would be used, perhaps, even to create a new

agency already in existence, and maybe there is a way to figure out

a coordinating role among these agencies, even the ones that are

out of our hands in some ways like Department of Defense or

Homeland Security.

The other question sort of goes not so much to the funding levels,

but what type of coordination do you think is necessary even

across, you know, the ones that we know about, FBI, NIJ, NIST?

Ms. HENDERSON. Well, I would like to talk about that because

when I was the President of the Academy, one of my sub-themes

was collaboration, and sometimes there isn’t as much as we would

hope for in the forensic science community, but I think now we are

all saying we must all work together. I mean, this is a diverse

panel if you look at us and we have come to the table, so to speak,

because it is of such concern both for the justice system, and I am

saying both the criminal and the civil justice system. So I think

what we have to do is identify all the resources that are available.

We all want to make sure that justice, both civil and criminal, are

successful, and we cannot do that unless we identify what is available now. Don’t duplicate efforts. I think that is a waste of everyone’s time. And we have to be cognizant of what our economy is

looking like these days. I mean, we cannot ignore that and we are

suffering across the board here whether we are in education, the

Innocence Project, in a crime laboratory, you know, pathology work,

all of that.

So I would say the first thing probably to do is to identify the

pots of money, who is working on it and then can we bring people

to the table. I don’t know whether, you know, people have to be

dragged kicking and screaming or not. I am hoping not, since I

think we are all trying to collaborate at this point.

Ms. EDWARDS. My time is up, and I think this is something that

we actually do need to explore and then we can look at the set of

short-term recommendations that we could follow through on right

away even though we may not be able to quite reach the long-term

yet. Thank you, Mr. Chair.

Chair WU. Thank you.

The gentleman from Georgia, Mr. Broun.

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Mr. BROUN. I thank the Chair.

Let me give you a little background about me. I am a physician

from Georgia and so Dr. Downs might be able to understand what

I say. If you all need some interpretation, he will be glad to do

that, I am sure.

Mr. Marone said that NIST does not have all the package, and

I am concerned. I would like to see a show of hands, please. Some

of you seem to be promoting a new National Bureau of Forensic

Science or new agency. Who of you all’s group are proposing a new

national bureau? Would you please raise your hands? Okay. Three,

four, one not. Okay. Of the four that are proposing a new national

bureau, why not in the private sector? Why not in the states? Why

can’t this be done? Because I am as a scientist seeking truth all

the time. When I graduated from medical school, the Medical College of Georgia in Augusta, I was taught things as being absolutely

true. Three or 4 years later, through continuing medical education,

I found the opposite is true, and I can give you many examples of

that, and that is true with all of science and we have to have peer

review and we have to have the independence that Ms. Henderson

was describing, and having that independence is extremely important as far as I am concerned to make sure that we don’t convict

people who are not guilty. I want to put the guilty folks in jail and

make them pay for their crimes and I want to make sure that people not guilty are exonerated if they are charged.

So why not do this in the private sector? We have got two competing forces here, the district attorneys, the prosecutors on one

hand, the defense attorneys on the other with a lot of money involved on both sides at the local and State level. Why not allow

market forces to develop this kind of scientific inquiry to find the

truth and the new truth as it develops? Mr. Hicks?

Mr. HICKS. Well, I think the—again, because this is driven typically by the D.A.’s, I mean, they are the ones that—and the police

investigators at the crime scene—they are the ones that have the

need to try to gather the kind of information that will help again

reconstruct the event, establish elements of the crime, maybe link

the suspect and the victim together. So it seems to me that is

where the need is going to be defined. And then whether or not you

can turn that to the private sector, I think you probably could. I

think maybe that is where NIST actually is kind of uniquely positioned because they are involved with the private sector to a great

extent, and it just strikes me that if given this role with respect

to the forensic activities, as these new needs are defined and

emerge, they may recognize opportunities in the private sector that

can be brought to bear on those. And of course, just as with DNA

technology, while the significance of the technology was recognized

early on, but having the reagents, the testing equipment, all the

supplies necessary for performance in the laboratory, these all had

to be communicated with the private sector and so there was, you

know, a lot of interaction there at that time. The private sector was

eager to find out what the needs were because, I think, they too

recognized the potential for growth in that area.

Mr. BROUN. Thank you, Mr. Hicks.

I would like to ask another show of hands, who of you all out of

the panel have read and studied the Constitution of the United

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States? Could I see hands? Okay. Four or five of you. I carry a copy

in my pocket and I believe in this document as it was intended by

our Founding Fathers. Could you all show me somewhere in this

document where we should develop a new bureau of agency of forensic medicine or forensic science here in the United States? If

you all could show me that, I would appreciate it.

Ms. HENDERSON. Actually Peter would probably say something

like we could look for a penumbra, right, or a shadow within some

of the Constitutional amendments that say that we—to protect people’s rights that we would be able to have something like this.

Peter?

Mr. NEUFELD. Congressman, if I may, I also wish to respond to

your last question because I think you raised a very good question,

and I actually do believe that the private sector can play a huge

role in doing a lot of the research that you are describing, but the

one overarching principle that came out of this report, and I think

there is no disagreement on this panel, is that whatever fixes need

to happen have to happen upstream of a courtroom, that historically defense lawyers, prosecutors and judges have not done a very

satisfying job of separating the wheat from the chaff when it comes

to good science and bad science in criminal cases. I would be more

than happy to send you a peer-reviewed article that I wrote last

year on that specific subject, and what you will see is that even the

very famous Daubert decision that came down in 1993 is not really

used in criminal cases, very, very rarely, and that it is believed by

everybody here that if you can get this stuff right before it ever

gets into a courtroom, then we can all have much more confidence

in what goes on, and you can’t simply leave it to the so-called crucible of the courtroom to work it out.

Mr. BROUN. Mr. Neufeld, I appreciate that. My time is about out.

If the Chair would just permit me to make a statement, then I will

quit.

Chair WU. Absolutely.

Mr. BROUN. Back to my question about the Constitution, unless

you look at a perverted sense of the Constitution, you will not find

in that document anywhere Constitutional authority to develop a

new national agency or department of forensic science. You won’t

find it. But we are operating here on the perverted idea in Congress, the courts as well as the Administration whether it is Republican or Democrat, all seem to operate on a perverted idea of

what the Constitution is all about, and I find that very regrettable.

But as a scientist if I am extremely interested in finding truth

whether it is in forensic medicine, forensic science, just even medicine as I still practice or not, but I don’t think we are going to have

the intellectual freedom with a new government body because there

is going to be government control over that body, and I encourage

you to think long and hard before continuing to promote a national

body. NIST does a great job of setting standards and I think we

have other opportunities to develop truth in the forensic areas

without developing a new body, and we frankly don’t have the

money now to develop these new standards. So I encourage you

and others to look at—we have got to solve the economic problem

in America and developing new bodies and new bureaus and other

things, maybe they are nice and maybe they are not Constitutional

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but we would want to do that. I think there are better ways than

trying to look at that, and let us find those solutions because I

don’t want anybody sitting in jail who is not guilty and I want to

know the truth as a physician.

So I have other questions I will submit for you all to answer and

I appreciate you all’s time and I thank the Chair.

Chair WU. Thank you, Mr. Broun. I am sure that we will be able

to get back to you on a second round of questions if you would like,

and I would like to thank the gentleman from Georgia for giving

me the opportunity to pull out my hip pocket copy of the Constitution. The argument is typically that article 1, section 8 provides

various authorities. There is a specific authorizing provision in the

Constitution for NIST to provide a system of weights and measures

for the country but I just want to point out, because this issue has

come up in my Congressional district repeatedly, usually with respect to Social Security or Medicare about Constitutional authority.

I just want to point out that there doesn’t appear to be textual reference to NASA or to the Air Force in the Constitution either but

we have seen fit to stretch it in each instance, and this is not to

engage the gentleman in Constitutional debate at this point but we

perhaps could continue the conversation over lunch sometime.

Mr. BROUN. If the Chair would yield a moment?

Chair WU. I would be happy to yield.

Mr. BROUN. I would love to have that opportunity to have lunch

with you and discuss that, but from my perspective, we are operating governmentally in the Congress, pretty much throughout the

Congress as well as in the federal court system as well as in the

Administration on a perverted idea of what the Constitution is all

about, and I believe in the original intent of the Constitution. National defense is Constitutional so therefore the Air Force and

NASA and some of those other things that were not specifically

mentioned fall within the aegis of national security and national

defense. NIST certainly is one of those things that I agree we need

to have the national standards, and that is the reason I would like

to see NIST take over some of these things to make sure that the

science is correct, but here in this committee, throughout Congress,

we hear people talk about the climate change and global warming

that is absolutely certain manmade and there are many, many scientists across the world who say that is absolutely not true and

there are scientists who look at all things, in my medicine, my

field, and others, and there is always debate, and that debate is

good in the scientific community because that is what peer review

is all about, and I think it would be critical for us to continue in

forensic science back to this issue so that we have that independence and have many entities looking at these various things whether it is DNA testing or bite marks or other entities so that we get

the truth and continue to seek that truth. Having one federal body

that is focused on this is I think counter to good scientific inquiry,

and besides being un-Constitutional in my opinion. So let us have

lunch and we will talk about that further. Thank you.

Chair WU. I thank the gentleman.

Mr. BROUN. I thank the Chair.

Chair WU. Reclaiming my time. While the gentleman from Georgia and I may have slightly different Constitutional interpretaVerDate 11-MAY-2000 14:26 Jun 13, 2009 Jkt 047720 PO 00000 Frm 00069 Fmt 6633 Sfmt 6601 C:\DWORK\T&I09\031009\47720 SCIENCE1 PsN: SCIENCE1
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tions, I think we share a concern about whether the creation of a

new agency at this point in time is the appropriate response, and

I would like to get to that after we return to mining the subject

of the core concern about is there sufficient science, where is the

science behind forensic science, what difference does it make. I am

still trying to understand the core concern here, and forgive me if

I am a little bit slow, but it appears to me that with DNA evidence

we had a body of science that was developed independently of any

forensic application and then a forensic application was found and

eventually solidified, but DNA is something that we have been

working on since the 1950s, maybe even a little bit before, but

there is an independent body of work. What Mr. Hicks seems to indicate is that a lot of the methodology developed in forensics stems

from investigative work and is experiential and a body of work that

developed over time and pieces of it have been—pieces of it are

supported by research, other pieces remain perhaps more experiential. Am I beginning to understand the picture here, Mr. Hicks?

Would you care to expand on that?

Mr. HICKS. Yes, I think you have hit it right on the head. That

is exactly right. And as Peter mentioned earlier, I don’t know what

the response was when they invited those practitioners in those

fields to come forward with information. I suspect that they didn’t.

I suspect part of it may have been an issue of trust and a question

about where is this going, who are we giving it to, and knowing

that they operate in a very adversarial environment of the courtroom all the time. But the other is that it may just not have been

in sort of the more formal scientific forum as well. And that is

where again I think if people who are trained and have the experience in that type of activity, if that could be brought to bear on the

existing information—and there will be gaps, I am sure, identified

and holes identified and——

Chair WU. Can we try to bear down on the issue of what difference would it make? Now, Mr. Neufeld gave a very graphic example of 200 innocent individuals exonerated by DNA, let us say,

who were convicted, subsequently exonerated, and out of those 200

perhaps 100 perpetrators who were, if you will, loose on the streets

because of the wrongful incarceration of the 200, that 100 real perpetrators, if you will, were loose longer. I mean, that is one graphic

example of a difference that it would make. There seems to be different levels of challenge as to different testing methods whether

it is ballistics or bite marks or hair or paint chip analysis. Can the

panel further address for me examples of what difference it might

or might not make to the judicial process if we were to apply

science more broadly to what has historically been a collection of

experiential data points?

Ms. HENDERSON. Mr. Chair, if I could respond. One thing, and

I think Peter pointed this out also, we have to remember in the

criminal justice system only two to four percent of the cases ever

go to trial, so we want to make sure that—so we are not really able

to cross-examine and challenge many of these issues because things

are pled out, there are all kinds of other things that go on. I would

say because we have such a diverse area in forensic science, like

Dr. Downs, pathology is not really—I don’t think there are really

challenges to that as much although there are some, like shaken

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baby syndrome, and things like this come up as theoretical debates

and also are challenged in court. But then we have the pattern evidence area and I think that is really when we look at the NAS report, they are looking at what we call pattern evidence. We are

looking at fingerprints, we are looking at bite marks, we are looking—see, paint and things like that, we have chemistry. I mean,

that—again, there is not as many, I think, attacks on toxicology,

on chemistry, drug chemistry. I mean, there are always new methodologies that are developed.

Chair WU. Are most of the problems focused in these pattern

areas where we seem to have, if you will, a statistical problem?

Ms. HENDERSON. And you can’t—I would say one thing, that they

have not—you can’t really have statistics in some of these areas.

There are actually in tool marks, for example—I will give you an

example. Somebody comes to pry open, you know, your sliding door

and then they have someone come from the crime scene to say,

here, we know that this is the pry bar that we just found in this

person’s car to pry open that door. There is a debate whether you

count striation marks. I mean, there are two theories of this. One

group says we don’t need to do that. The other people say—so within—and again, that is like science. You are always debating in

science, coming up with new methodologies. So there are actually—

and like Pete pointed out with the knife patterns, that is another

one. They have all kinds of pattern evidence with tool marks but

it is highly debated. So I think I saw, at least when I read the

whole report, the more the challenges are in the area of what I

would call pattern recognition forensic science, but not in some of

what I would say forensic pathology, toxicology, drug chemistry and

areas like that, and I don’t think that is really where the concentration was in the report.

Chair WU. Help me understand that. Where there are things like

toxicology reports and chemical analysis of paint chips, do you all

agree that those are more settled procedures and less doubt about

them? Mr. Neufeld.

Mr. NEUFELD. I agree with your original comment that the biggest problems occur in those so-called matching disciplines, pattern

disciplines, but there are other types of problems in the way that

they are actually implemented in the criminal justice system which

you should be made aware of, which are in the NAS report. For instance, since most cases don’t involve DNA, we all agree on that,

and we all agree that most cases don’t go to trial. Most cases are

either dismissed or resolved by a plea of guilty and so therefore in

most cases the people who are the principles, the lawyers and the

defendant and the victim, are looking at a lab report, a piece of

paper, and there are no national standards on what goes into a lab

report. And one of the things that the NAS report calls for is there

needs to be national standards so whoever reports the report can

figure out what happened.

Chair WU. So even where there is, if you will, more science as

in chemistry, there are certifications issues about the accuracy of

the lab tests. There are issues about procedure. There are issues

about the format and the content of various reports.

Mr. NEUFELD. That is correct. Thank you.

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Chair WU. And nobody disagrees with that. But is there still consensus that there is a much bigger problem in the pattern recognition fields like ballistics, bite marks, fingerprints? Dr. Downs.

Dr. DOWNS. I think what we are looking at is a couple of issues

that overlap. One is the fundamental scientific testing, the reproducible number, and I am going to probably get my good friend,

Mr. Neufeld, upset, but he refers to ‘‘DNA exonerations.’’ To my

knowledge, DNA has never exonerated anyone. It has been used for

that purpose but it is only a test result, and we have to place that

test result into context. DNA has never convicted anyone. It has

been used and interpreted for that purpose but what we are talking

about is the metric of actually performing a scientific test.

The accreditation and certification goes to the scientist practitioner—that they are actually qualified to interpret that test result

and put it into the context. So I think that part of the report, that

you need to have both of those together simultaneously because the

reports need to be understood. They need to be understandable.

Someone needs to be able to read my report and understand why

I made a determination.

Chair WU. Well, Dr. Downs, I think that we are in agreement

that if there is a sound methodology, one still has to have a sound

practitioner and have standards for the form of the report and the

content of the report.

Dr. DOWNS. Yes, sir.

Chair WU. So we are in agreement on that, and there is a certification issue here and a standard-setting set of issues. I am trying

to get back to, are there core issues with some of these technologies

that we use that have a deep history but perhaps have not been

analyzed in ways that we would consider supported by lab science?

Ms. Henderson?

Ms. HENDERSON. Yes. Actually this brings up another issue

which I wanted to touch on is education.

Chair WU. Can we finish this one first?

Ms. HENDERSON. Yes. Well, that is what I am getting at. I am

going in a circular fashion right now. No, actually it is education

because lawyers for a long time—these things weren’t challenged

because lawyers did not have science backgrounds. Only 5.3 percent of law students have any education in physical sciences. So

now that people are getting, I would say, up to speed in whether

it is computer science or something else, now there are many more

challenges that are being made, and for a long time fingerprints

were never challenged, tool marks were never challenged. It was a

given that this is good science. But then when people started asking well, where is the rigor, where is—and there is the very famous

case that took place in Philadelphia with fingerprints. It was the

first time that somebody in federal court challenged a fingerprint,

and this was in a bank robbery case, and all of a sudden people

said well, where is the data, we don’t have anything that supports

that the fingerprint evidence is really valid. So I think that is

where we are looking, and these are many cases. I mean, if you go

to my website, NCSTL.org, we have cataloged all these types of

cases that say here is where the challenges are and that is again,

I think—really what we are seeing is the challenges are being

made in things that, as John said, developed through law enforceVerDate 11-MAY-2000 14:26 Jun 13, 2009 Jkt 047720 PO 00000 Frm 00072 Fmt 6633 Sfmt 6601 C:\DWORK\T&I09\031009\47720 SCIENCE1 PsN: SCIENCE1
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ment but then didn’t have the rigor until the attorneys started getting educated, and they are still not that well educated, I have to

say, in most science, other than Peter Neufeld, of course. But, you

know, that is one of the things, and he has been doing this for

years, but other people are not being trained in that particular

area. So I think the rigor needs to be imposed in many of, I would

say, traditionally accepted pattern evidence areas and that is what

the report says.

Chair WU. Thank you, Ms. Henderson.

Mr. Hicks, you headed up the FBI crime lab. Have we just been

taking on faith these fingerprint matches, these bite mark matches,

and if you drill down to really focus on: is there evidence that a

match is a match, do we have problems when we actually drill

down and start asking those questions?

Mr. HICKS. Well, of course, I am not an expert in all those areas,

you know, to that extent, but it is experientially based and I think

if you were to speak with someone who has worked in that field

for some period of time, they have confidence that they are able to

distinguish patterns. But again, there are so many uncertainties in

an actual forensic evidence case, for example, fingerprints. You

may not have a full, clear image. You may——

Chair WU. But, I mean, a full fingerprint is a full fingerprint, but

the problem is you are frequently working with something a lot

less than that.

Mr. HICKS. What you are faced with, right. And so that is where

the—as Pete mentioned earlier, about the quality assurance practices where you do want to be sure that you have some level of redundancy in your analytical system. You have a confirmation process maybe where somebody else looks at it and verifies, at the very

least reviews, the work done to agree that they come to the same

opinion. And can errors happen? I think they can as has been demonstrated and undoubtedly will in the future. Errors even happen

in medicine with all the rigor that is behind that. So I think that

is where the quality control process and the accreditation process

of course supports that to be sure that you have systems in place

that help to detect when things go wrong or inconsistent, you

know, with what the sort of established community standards.

I think if you were to go—I mentioned scientific working groups

earlier. I think if you go to the FBI website, for example, and then

look at some of their publications, Crime Laboratory Digest, for example, is one of those publications, and you will find on there listings of recommended guidelines for fiber identification, for example, fiber matching, and it will go to the level of what should be

included in the report. It will talk about the kinds of tests which

should be at least considered and applied, although not all tests

would apply in all circumstances, but at least it defines which tests

will provide certain elements of information that might help to resolve whatever question it is they have been put to.

Chair WU. Mr. Hicks, in those fields where the FBI does have

guidelines, in your professional experience, what percentage of

tests submitted in those fields where there are guidelines do you

think actually meet those guidelines?

Mr. HICKS. I am reluctant to even hazard a guess. I don’t know.

It has been—first, with the FBI, it has been a long time since I

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have been there. Much has changed in the last 10 or 15 years at

the FBI as in all laboratories—the entire community, in part because of the DNA experience.

Chair WU. Yes, this is why we are spending a bit of time on this

because frequently when you focus down on an area, as a legislator

I don’t get to do that nearly as often as I want to, what is there

is not what one fully expects and many of us strive for original intent or for truth but it is a little bit slipperier than being able to

get it on the first pass. I guess even though I didn’t—I don’t think

I have ever seen the TV show. I perhaps fell in the same trap of

assuming that because folks said it was so, it must be so, and I am

beginning to wonder if it ain’t so and whether we should be asking

that question more consistently.

Mr. HICKS. Well, I think, again, it is a question of being in the

forum that is expected, and that is again why I keep getting back

to NIST. I mean, they have the competencies to help make that assessment, to look at that kind of information and working with the

laboratories and the scientific working groups of experts in those

individual fields, people that are at least practitioners in the field

to draw together what information is there and put it to that kind

of scrutiny, and I suspect that there will be many areas where they

can find that there are some gaps that need to be filled. Some

areas might just be simply a matter of conducting—refining the

scope of the study and performing the study in a slightly different

way to get to the very specific questions being asked.

Chair WU. Well, I want to get to the other Members for another

round, and I will continue this, but I just want to comment that

it disturbed me greatly when I made the transition from a science

background to law school and then it took me a while to figure out

how the paradigm had shifted because in science you kind of work

at something and you have competing hypotheses. Until you collect

the data you don’t draw a conclusion about which of the competing

hypotheses one should proceed upon. With law, with judicial process or the legislative process, it is really quite different. There is

a deadline and there is a deadline for decision. There is procedural

fairness but one has to reach a decision by the deadline and you

make the best choice you can under the procedural rules and then

you live with that decision until something else comes back and

you reverse it. It was very unsettling to come to that conclusion.

I am still not sure that I am fully comfortable with it but I am not

sure that there is any way to proceed in our society without those

deadlines. I am still going to come back to this topic before getting

to a few crass administrative things like cost and transitional

issues.

Mr. Smith, you have been very patient. Thank you.

Mr. SMITH. Thank you. Actually I find this interesting and I appreciate the expertise that you bring. That is, I think, why we have

these hearings and I am grateful for the opportunity to participate.

We have got progress of science and we have got a criminal justice system. Are they keeping up with each other? I mean, Mr.

Neufeld, you cited over 200 cases and I certainly commend your organization for striving for a better way, if you will. If we used today’s system that is most often practiced, I mean each state would

probably have a little different way of doing things but if we apVerDate 11-MAY-2000 14:26 Jun 13, 2009 Jkt 047720 PO 00000 Frm 00074 Fmt 6633 Sfmt 6601 C:\DWORK\T&I09\031009\47720 SCIENCE1 PsN: SCIENCE1
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plied today’s practices to those cases over the last several years, I

am not real certain with the timeline of all of those cases that you

mentioned, but have we made progress? How are we doing, say,

from the 40,000-foot level?

Mr. NEUFELD. You have made progress with respect to those

cases which would be resolved through DNA testing, but as—because DNA is that robust. But again, as everybody on this panel

will tell you, the types of cases which lend themselves to DNA is

a very small minority of what goes on in a crime laboratory or

what goes on in the broader area called forensic science. Many of

the same disciplines that gave rise to the wrongful convictions are

still practiced today and they are still practiced today much the

same way they were practiced five or ten or fifteen years ago. They

haven’t changed, and that is one of the reasons why there is concern for a new initiative because others before have failed to have

that initiative to make the changes. Okay. People knew, for instance—and I am not going to—John Hicks was an expert in hair

microscopy which the Chair asked him about, that is, looking at

hairs under a microscope, a hair from a crime scene, and comparing with a hair or hairs from a suspect and seeing whether they

are similar. They would look at, you know, perhaps a dozen or

more variables, and I will defer to him on what the exact number

is. But the problem is, they never had any empirical data as to how

common or rare each of those variables were. Nevertheless, they

would make statements in courts of law about how unusual it is

to find two things that are similar or common without any database, without any empirical data, and to a large extent the problem

with a lot of these so-called matching disciplines is they lack empirical databases to allow people to create a statement about an association, and that is still a problem today. It hasn’t changed. And

it is not getting any better in the courts because judges don’t deal

with it any more adequately and the lawyers, the defense lawyers

and prosecutors, don’t deal with it any more adequately because if

they had done well in organic chemistry they would have followed

Mr. Wu to medical school as opposed to me to law school. It is that

simple.

Chair WU. Mr. Hicks, do you want to respond?

Mr. SMITH. Go ahead.

Mr. HICKS. Well, again, with hair identification you are looking

at features that may help to distinguish one person from another

but always in the reports that were issued there was a disclaimer

more or less, a warning statement put in there, that this is not an

absolute means of identification, and so it should be viewed in that

light. There may have been circumstances where the hair had been

artificially treated, for example, repeatedly where it would add

some level of uniqueness. At least in the experience of the examiner it would seem to be something that they had rarely observed

and that might be offered during the course of testimony there to—

but I am not aware of any instance where there was testimony

given in a hair case, maybe Peter knows some, but some instance

where it was given that this is an absolute match that nobody else

has. It was always considered—urged that it be considered in the

context of other information. And so, for example, in some cases,

it might have been a fiber case, for example, if you find a blue

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nylon fiber on a victim, on a homicide victim, and you find a suspect that has a blue nylon sweater. That may be some association

but of course there are many sweaters that might have been produced like that so that I think intuitively most people would recognize that and wouldn’t have difficulty understanding that that is

not an absolute association.

On the other hand, if you have a case as in Georgia, the Wayne

Williams case some years ago, the Atlanta murders case, as it was

referred to, where there were a number of young men who were

found killed and there were many different fiber types that were

found, 28 different fiber types, in fact, that were consistently found

on the homicide victims and there was at the suspect that was

eventually developed sources for those fiber types were found in

one location. Now, was it an absolute identification? I don’t think

so. There was an effort to try to develop some statistical estimate

of how likely it might be that type of circumstance might occur.

But that is the challenge again. In forensics, you don’t know what

you are going to be presented with, and the whole idea is to try

to assess and reconstruct what you are observing and to see if it

might help bear light on a particular investigation, particularly either to corroborate or dispute eyewitness testimony that you might

have or other facts and circumstances that you have. It should always be considered in the context of the whole case, and I think

that is what you had gotten to earlier, I guess. Of course, that is

sort of the legal requirement to look at the totality of things and

assess whether or not you can come and make your best decision

based on the information you have. In some respects, that is taking

place to some extent in some of those types of experiential types

of practices in some forensic labs.

On the other hand, hair identification, the cases that Peter is referring to where they had success in reversing these convictions,

those are convictions which occurred 15 or 20 years ago prior to the

advent of DNA technology typically. If you were looking at a forensic laboratory today, I suspect there are a few that actually end

with the microscopic observation of features of the hair. Now they

would typically use that only to identify hairs which might be good

candidates for DNA analysis. So rather than analyze 20 different

hairs recovered in the debris from a crime scene, they will focus on

one or two that seem to be similar in appearance maybe to the hair

from the suspect source that they are considering but then they

would isolate those hairs that looked to be the best candidates for

a potential DNA match and then pass that on for DNA confirmation.

Mr. NEUFELD. You know what? Actually it proves too much because even when you talk about a combination between hair and

mitochondrial DNA, you have the National Academy of Sciences explicitly reporting on page 5–26 of their report, but no studies have

been performed, referring to mitochondrial, working with hair microscopy specifically to quantify the reliability of their joint use.

The problem is, frankly there are dozens of cases that we have

where people were wrongly convicted based on the inappropriate

use of statistics in those hair microscopy cases and sometimes it

was FBI agents themselves who actually offered these statistics

completely in the absence of any empirical database. That is docuVerDate 11-MAY-2000 14:26 Jun 13, 2009 Jkt 047720 PO 00000 Frm 00076 Fmt 6633 Sfmt 6601 C:\DWORK\T&I09\031009\47720 SCIENCE1 PsN: SCIENCE1
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mented in transcripts. We can share them with the panel. It is not

at all controversial.

But there is a bigger problem. Even if you don’t do as we did in

the case which I submitted to the panel, say giving a number of

one in 10,000, even if you say that something is more likely than

not to have come from this individual, that in itself, even without

giving a number, is a probabilistic statement and you can’t give a

probabilistic statement unless you have some empirical data. So it

is not enough to say that we would have a disclaimer that we will

not say it is this person to the exclusion of the rest of the world,

but when you give any statement like that, it most likely hairs or

more likely than not hairs, that is a probabilistic statement and

you can’t make those kinds of statement in the absence of a scientific empirical database, and they never had it.

Mr. SMITH. Ms. Henderson?

Ms. HENDERSON. Yes. I thought Peter might cite to the—was it

the Williamson case that was in Oklahoma, I believe, or Texas.

There have been cases where they have said something was a

match with hairs and fibers and they said you cannot do that. It

is true, as John says, there are some, you know, evaluations, improvements now with hair and fiber evidence, but a lot of laboratories have done away with microscopy. They just said we don’t

want to do this anymore, instead we are going to see if we can do

mitochondrial DNA testing, we will do that on the hairs but we are

not going to go ahead and just say it is microscopically similar because there is not the data.

Now, one thing I wanted to point out though, when you asked

before about whether—how reliable certain areas were, there was

a publication in the Journal of Forensic Sciences on proficiency

testing. They went back to 1978 and looked at—Joe Peterson is the

author of this particular article and he has done an update. He

started in 1978 and looked at proficiency testing in every area of

forensic science and their reliability, and I have to say hair and

fiber was one of them. You might as well as have flipped a coin.

In fifty percent of the cases they made misidentifications and so

that is I think something that—and I can provide that to the Committee if they would like to look at this particular study.

Chair WU. Ms. Henderson, can you explain that to me a little bit

further? I don’t know what you mean by proficiency testing.

Ms. HENDERSON. Okay.

Chair WU. And when you say 50 percent is misidentified, tell me

what this means.

Ms. HENDERSON. Okay. Pete can probably talk more about proficiency testing because he does this in the laboratory.

Mr. MARONE. Sure.

Ms. HENDERSON. Go ahead, Pete.

Mr. MARONE. Proficiency testing is a quality assurance method,

if you will, that is designed to test, ascertain the competency of the

individual examiner. Each drug chemist every year, accredited laboratories must go through a proficiency testing program. For example, every drug chemist is given an unknown. They have to identify

what it is. That could either be from an external source or an internal source but they don’t know what the outcome is. And it is the

same thing for trace evidence, for DNA folks. They will get a stain,

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identify the stain, tell us what the profile is, is there semen present

or whatever. And so what it literally is, it is a test of the competency of both the individual and the operating process within the

laboratory. DNA requires two a year. Everybody else gets one a

year in every discipline. Part of the proficiency testing process is

to ascertain why you got the wrong answer, whatever that might

be. In a lot of instances it is something minor that you can fix. If

it is an instance where you find out the person really has issues,

that individual is taken off of work until the problem is fixed, and

at that same time you go back and look at other work that that

person has done prior to that proficiency test to see if those issues

are——

Chair WU. Actually I misunderstood you. When you were talking

about proficiency testing and then said 50 percent of test results

were incorrect, I thought the implication was that 50 percent of the

results submitted as evidence were incorrect.

Ms. HENDERSON. No, this is looking at proficiency testing within

the laboratory, not necessarily that they made it to the courtroom,

if I wanted to—and again, it was in certain areas. Now, again,

when they started in 1978 and looked at this and moved forward,

we have put in place, I have to say in the forensic community, a

lot more proficiency tests than were ever done before. We also have

put into place of course ASCLAD/LAB [American Society of Crime

Laboratory Directors—Laboratory Accreditation Board] accreditation, which then requires these proficiency tests. Before many laboratories did not have these requirements, and I know Peter

Neufeld will probably chime in on this at some point. But that is

one of the things that have been improved. I have to say, things

have improved over the years, although I can say it is human nature. It is not perfect. I mean, these are human beings doing laboratory tests. But what they are trying to do—and that is why they

have quality assurance groups that go out to the laboratories and

identify if there are weaknesses perhaps in the system, and that

is the other thing that they are trying to work through and that

is something to encourage, I believe with more funding as well.

Chair WU. Here is an analogy from a different field. Ms. Henderson, what you are saying is that this is like having sanitary tests

for restaurants and the restaurants fail 50 percent of the tests or

inspections but that is not to say that 50 percent of the customers

are necessarily eating unsanitary food?

Ms. HENDERSON. I don’t know if I would say it that way. I have

to say, with all due respect, I think that is putting words in my

mouth. I don’t think that is really—what I am saying is, in certain

areas reflected in the work by Dr. Peterson, he found that over the

years, and he looked at 20 or more years of proficiency tests, that

in certain areas, I won’t say all areas of forensic science, but in certain areas of forensic science people failed proficiency tests, right,

and that was in—the hair and fiber was one of the most, I would

say, telling areas of the proficiency test failures.

Chair WU. I am sorry, Ms. Henderson. You all are experts. That

is why you are here. We are not. That is why we are here. And

I am just trying to understand the policy implications of what you

all are trying to tell us.

Ms. HENDERSON. Okay. I think Peter can address that.

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Mr. NEUFELD. Mr. Wu, there is a fundamental disconnect, and

the fundamental disconnect is that the reason you use proficiency

tests is there is no way to know. When you are looking at a piece

of crime scene evidence and you match it to me, did you get the

right answer or the wrong answer, if you will, because you don’t

have a control. It is an unknown. And so proficiency tests are a

substitute for that. Is that clear kind of? That is the fundamental

difference. So for instance, when you——

Chair WU. That is clear. It is somewhat troubling but it is clear.

Mr. NEUFELD. Well, it is very troubling and so one of the things

that you would want from a national——

Chair WU. Mr. Hicks does not agree.

Mr. NEUFELD. One of the things you would want from a National

Institute of Forensic Science, for instance, would be to come up

with a program of proficiency testing because there are four types

of proficiency testing. There are external, there are internal, there

are open, and there are blind. So a lot of the proficiency testing

that is done, for instance, is the kind where the individual analyst

knows it is a proficiency test and may or may not treat it the same

way that he or she would actual casework. So what you would like

to do ideally is to make the proficiency test more challenging and

more robust and be able to sort of move it into the lab system so

the proficiency test looks no different than an actual case. So you

get the laboratory and the personnel to treat it the same way they

would a regular case. It is expensive to do that. I think we all

agree with that. But hopefully if you had this NIFS, okay, they

could create national standards, they could create, if you will, a national proficiency test so the expense would not be on every laboratory and that kind of robust proficiency testing could happen more

consistently throughout the country. The reason you want to do

it—one of the problems we had, for instance, you know, in some of

these other disciplines is you can assume that you have got the

right person, but you don’t have the same kind of scientific control

that you have with the proficiency test to tell you for sure that you

have the right person.

Mr. SMITH. Full circle. Back to the creation of a new agency perhaps. Do we not have enough of a grasp of where we need to go

within the current agency framework, NIST or however we might

proceed without creating yet another new agency that I think could

end up being a bit of a distraction with the administrative parts

of it rather than ramping up with current agency framework.

Ms. HENDERSON. I would like to go back to my immediate action

first. I think let us take existing resources. And we do have—I

want to mention, we do have ASCLAD/LAB, which is the American

Society of Crime Laboratory Directors Laboratory Accreditation

Board, which also has testing methods. NIST has testing methods

in place already and I think then we do the interim action. So first

let us start with what we have in existence. We don’t throw out the

baby with the bathwater, to use a hackneyed phrase here, but go

ahead and say what do we have, and we have to corral the existing

resources and I think Ms. Edwards, when she said let us see what

is out there, we need to see what is existing in terms of funding,

then let us see what federal resources we already have in terms of

testing and things like that. Then we go to the interim action,

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which would be to evaluate strategic policy decisions and strategies

because we need to say what do we have here right now, and I

think probably us in the forensic community would be able to probably pull all these things together and see what is out there. Then

do the interim action. Then we go to the long-term action. I think

it has to be a three-step plan. I think that is a much better way

to exercise this particularly and looking at policy and strategies.

Mr. SMITH. Thank you.

Chair WU. Thank you, Mr. Smith.

I ask the forbearance of the witnesses in repeatedly asking these

questions related to the role of science and forensics and why it

makes a difference. I think this is a topic to which we will return

at some future date. I just want to say in my own defense or admission of guilt that I have been asking why does nanotechnology

matter for the last ten years because people don’t seem to have

good explanations about why it should be important just because

it is small. And I have come to the conclusion that it is important

and it is worth supporting. I have come to the conclusion that we

are on to something here and that it deserves more focus, but I still

quite frankly do not—I am still trying to understand the role that

scientific rigor can play in being brought to bear on what has been

an experiential field for the most part. Mr. Neufeld has provided

some graphic examples based on DNA and I am trying to understand how it might affect the rest of what we do, whether it is conviction rates going up or going down, and our certainty about providing a sound service. I think that Mr. Smith has asked some good

questions about what would happen in the organizational interim

in trying to organize a new agency if that were the path we were

to choose.

I want to focus on that a little bit, but first I start with Mr.

Marone, and Mr. Marone, you said that resources are a real problem, but when asked specifically about how much more in resources, you begged off on the question, and I want to press you

a little bit on that because it is easy to come here and say we need

more, and we are in the line-drawing business about how much

more, so if you are going to ask for more, I am going to have to

ask you how much more.

Mr. MARONE. Well, I didn’t beg off from the answer of what kind

of resources, how much resources. I begged off the question as to

how much it is going to cost, which are two different things, one

could argue. But for example, if you want to look at resources——

Chair WU. We deal with dollar funding here, so if you could help

us with that metric?

Mr. MARONE. Well, I can tell you things that it is going to take.

For example, we need more people. How many people? We have to

assess that and find out where we are. But where does that begin?

We need a better entry source for our examiners. One of the things

that we are looking at is the forensic science applicant pool. Who

do we want them to be? Do we want them to be hard science or

would we like them to be more science based and not requiring a

baccalaureate degree as in many instances now with fingerprint examiners, firearms examiners and so forth. So we need to start at

that level just like Dr. Downs needs to start with—if you need

more people, you need to educate more people, you need to train

77

them for pathology. You know, there are reasons why people go

into other fields. We have got to make it more meaningful to them,

more palatable to them to go into the forensic science field, to go

into public service. Forensic science has no scholarship program,

for example, like in graduate school they get a free ride to go get

a Ph.D. Okay. There is no such thing even at a Master’s level in

forensic science. We need that to get the qualified higher-caliber

students interested in forensic science. That is going to——

Chair WU. Mr. Marone, what I think we need from you to make

a case for this are the measurable inputs that you need. The factors that you are mentioning are all important policy concerns but

ultimately I think, you know, we have to decide what are we going

to put into this, what are the dollars and cents, what are the undergraduate or graduate programs, what are the certification programs, what are the standards that need to be developed, and I

hate to be so pedestrian about this but I think that is what we

need for action going forward. And I would like to ask you for help

with that if we are going to take meaningful action in this field.

Mr. MARONE. I fully understand. That is one of the things that

as a community we have to be able to provide to you is——

Chair WU. Yes, I am asking you to provide it, and if you are saying you can’t provide it today, I am saying we need to have that

before we can take meaningful action. At least I think we need to

have that before we can responsibly take meaningful action.

Mr. MARONE. I defer to anybody else on the panel because I

know among us we have hammered this thing around a lot and I

don’t know that we have come up with any definitive answer.

Dr. DOWNS. I may be able to give at least a partial answer regards medical examiners. Recommendation number 11 specifically

referred to the medical examiner community replacing lay coroners

with physicians, board-certified medical examiners.

Chair WU. And Dr. Downs, I wanted to ask you about that because in your written testimony you do make that recommendation,

and if you look at the graduation rate for board-certified forensic

pathologists, which is also in your written testimony, there is just

no way that we can get to having the qualified pathologists that

you want with the graduation rate that we have.

Dr. DOWNS. Agreed. It is staggering. We go through extensive

training, as you know. Then we go into the subspecialty of forensic

pathology, which I did in order to cut my salary in half. No one

spoke to my wisdom in doing that, but the reality is, we go into

forensic pathology for a different reason than perhaps other people

go into medicine. It is a public service, and the number of people

we need—we graduate 37 residents in forensic pathology a year,

37. We have 400 medical examiners actively practicing full time.

We need an estimated 800. The cost per citizen, somewhere between $3 and $5 a head. So you can multiply that out. I get roughly $1 billion to $2 billion just to have an operating system. That

doesn’t get into the infrastructure of how many offices need to be

replaced and quite honestly need to be up to code for CDC [Centers

for Disease Control], safety and performance of an autopsy.

Chair WU. That is the medical examiner side of things, the medical examiner/coroner side of things?

78

Dr. DOWNS. Right, and if we actually were to do away with the

1,000-year-old office of the coroner, there are 3,000 counties out

there and a fair number of them are served by coroners, and I

would imagine that the counties would have something to say

about that issue. In some places——

Chair WU. Well, Dr. Downs, when an institution has survived for

1,000 years, there is usually a reason, and the paperless office has

been predicted for a long time but papyrus has been with us a long

time. There is a lot of paper up here.

Dr. DOWNS. Yes, sir.

Chair WU. So I think I get the drift of where you want to go and

we ought to push in that direction but implementing from here to

there is the challenge.

Dr. DOWNS. If we could enhance the investigation, the abilities

of the coroner to do their job, I think that is a good place to start.

We aren’t going to get rid of the office of the coroner anytime soon,

as you pointed out, sir, and I think if we can professionalize the

office, we are way ahead of the game.

Chair WU. Ms. Henderson, you make recommendations about

substantially increasing research. Do we have the infrastructure in

place to do the amount of research that you are recommending?

Ms. HENDERSON. Well, we do have in many universities now, because, of course, forensic science has increased attention so there

are different programs that are out there that have Ph.D. students

but we can also go to other institutions. I think there is—and

again, if we want to look at hard science, and that is one of the

areas to go to, let us go to biology departments, we will go to chemistry, because all of these things can be worked, not just in a forensic science program, but also in hard science programs. So I think,

particularly if there is money to do research—I know this because

I live on grant money myself—that people will then come and do

the research, again working, I think, in conjunction with existing

laboratories to know what are the needs or with the medical examiner’s offices.

Chair WU. What I am hearing is a mixed answer. There are existing laboratories, State laboratories, private laboratories, federal

laboratories. There is a university research base and——

Ms. HENDERSON. And they are not always talking to each other.

That is one of the problems.

Chair WU. And what I don’t hear you saying is that the capacity

is there. I don’t hear you saying the capacity isn’t there.

Ms. HENDERSON. Well, of course, I know that—I think the capacity is there. Of course, people will say we need to have the dollars

to fund it and then I will have to get back to you with how much

money we would need to fund those types of research programs. As

I told you, when I was president of the academy, one of the things

we saw was, there was a lack of research dollars within the Forensic Sciences Foundation, which is a group that actually spun off,

if I can say it that way, from the American Academy of Forensic

Sciences. So now what we are doing is, with this $300,000 plus, we

are giving stipends basically to graduate students in these accredited forensic science programs so that they can do research and

they can go present the research in peer-review settings. So there

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has been a movement in that particular area. So I think we are

making many efforts in that particular area.

Chair WU. Would it be constructive to have departments of forensic science or a new organization at the federal level to handle forensic science when this is a very important applied field but it

brings together so many, if you will, different stovepipe sections of

science, whether it is metallurgy, whether it is mechanics, whether

it is biology, organic chemistry or DNA and biochemistry. Would

this be a meaningful add to try to create this field, if you will?

Ms. HENDERSON. Well, we actually have—I have to say, and this

is where I receive some of my grant money from is the National

Institute of Justice. They have a science and technology section

that, you know, gives grants to people to do research. The Bureau

of Justice Assistance also has money. So there are existing institutions that do provide money for people to do significant research,

and of course NIST has been doing research over the years as well.

In fact, they testified before the National Academy of Sciences

group, so I think that—I don’t know that creating another entity

is always a good idea. I don’t know whether there could be better

coordination between entities. That perhaps might work. And I

don’t know if you, you know, can actually twist enough arms from

federal agencies in order to all work together as a collaborative

venture.

Chair WU. Well, it seems to me that this is a field that is tailormade for our research university structure where there are disciplines from across many different fields and you really need to

tap and access those fields in order to do good work.

Ms. HENDERSON. I would not disagree with that.

Chair WU. Mr. Neufeld.

Mr. NEUFELD. I would just, you know, echo the words of recommendation number three of the NAS report which calls for the

creation of a competitively funded peer-reviewed research program

that would be at this National Institute of Forensic Science. They

point out through the two years of hearings they had that there

was a terrible paucity of federal funds available for meaningful research in the forensic sciences, and certainly what you would want

to have is some coordinator, or quarterback, who could decide what

the priorities are, and even if there are pools of money at DOD or

Homeland Security or other places, at least the quarterback could

decide maybe we can tap into some of those other pools of money

but at least there will be strategic decisions made by somebody,

and there are no strategic decisions being made now by anybody.

When the NAS had their hearings, somebody testified in fact from

NIJ, who was in charge of their science and technology program

there and felt that NIJ was a poor place for locating this research

undertaking because of their own internal perceived conflicts of interest as representing the different law enforcement agencies that

NIJ currently represents. Moreover, there is a historical problem at

NIJ of almost all their research money being earmarked, terribly

earmarked for not just a discipline but earmarked that it would

take place at a particular institution, which is the antithesis of the

way that the National Science Foundation works. It is the antithesis of the way the National Institute of Health works. One of the

things that the reports recommends, for instance, is the NIH

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should have a research budget to help forensic pathology so to help

people who are medical examiners get research done in the areas

that are breaking into new territory. They don’t even have that,

okay. But if there is a quarterback somewhere who is going to be

looking out for the interests of all these people in the forensic community, then they can push the NIH to get some of that money.

Then they can push Defense or other agencies that have pools of

money to bring it to bear where it is needed.

Chair WU. Well, Ms. Henderson, thank you for sharing your perspective on Australia, that it has taken them 20 years of work on

this. I expect that as we go down this road, it will not be a short

one no matter what path we choose to take.

Last pass. Mr. Hicks, you seem to have a different opinion about

whether a new independent agency or quarterback or anything else

is needed and I wanted to give you and anybody else who wants

to take the other side a moment to more fully explore whether to

do that or not. What do you see as the downside of proceeding

down that path?

Mr. HICKS. I think just from the practical aspects of implementation, and you have already articulated, I think, a lot of the concerns about trying to establish that large an agency. And even in

conducting research, I think it is important that this be community

driven so that someone in an academic setting who is not familiar

with the ongoing operations of a laboratory and the kinds of questions that they need to address, there needs to be some connection

there so that they have a sense of directing research that is applicable to the questions to be answered. And as has already been

mentioned, again, there have been other federal initiatives here to

try to support problems and needs in the forensic community such

as backlog DNA testing and overall quality laboratory improvement. These may be vehicles that can continue to be brought to

bear to help improve laboratory services. It seems to me where the

big gap is, as I have said repeatedly here, is that in looking at

some of those currently practiced forensic techniques as to whether

or not they meet the scientific rigor and scrutiny that will help to

assure confidence in the courts and that is where again I think you

could direct activity instead of sort of open-ended research but you

could direct activity into looking specifically at some of those areas,

and it is a question of where does the competency lie to try to address that right now. Do you have to build a new organization to

do that or are there competencies now that might be brought to

bear on that question.

Chair WU. Does any advocate for a new organization want to

take a minute to address that? You all are good? Okay. Very good.

Thank you all very much for being here today. The record will remain open for additional statements and for questions and answers

on the record that Members of the Committee may ask of each of

the witnesses. I want to thank you all for beginning this path at

this committee level to explore what we can do to improve the state

of forensic science in America and look forward to working with

you all going forward.

Thank you very much, and the hearing is adjourned.

[Whereupon, at 12:17 p.m., the Subcommittee was adjourned.]

(81)

Appendix 1:

ANSWERS TO POST-HEARING QUESTIONS

82

ANSWERS TO POST-HEARING QUESTIONS

Responses by Peter M. Marone, Director, Virginia Department of Forensic Science

Questions submitted by Chair David Wu

Q1. The NAS recommends that the Federal Government oversee education standards

and accreditation of forensic science programs in colleges and universities. What

is your opinion of this recommendation?

A1. One of the main points discussed throughout the report is standardization. The

Committee’s recommendation was not to replace the existing accrediting body with

a totally newly developed federal program, but to utilize the existing, already working program which can be reviewed to assure that it meets the needs. Then support

this program and the institutions applying to it for accreditation. The example for

accreditation of forensic science educational programs would be the Forensic Education Program Accreditation Commission (FEPAC), which is a standing committee

of the American Academy of Forensic Sciences. While this Commission has been in

existence for just five years, it has shown significant success in raising the scientific

rigor of the programs which it has already accredited. There is a quantum difference

between overseeing the accrediting body and creating a new body from the ground

up. A benefit of the standardization of these requirements is that students and

these accredited universities could receive the benefit of federal support in the nature of scholarships or loans for tuition (forgivable at a rate of say, 20 percent for

each year of service in a publicly funded crime laboratory).

For the existing undergraduate FEPAC accredited universities there are approximately 1,600 students. If the average cost for each student is $25,000 per year, the

cost to fully fund undergraduate education for the existing forensic programs would

be approximately $40,000,000.

For the existing FEPAC accredited graduate level programs, there are approximately 175 students. If the average cost of graduate study is $30,000 per year for

each student, the cost to fully fund graduate education for the existing forensic programs is approximately $5,250,000.

Q2. What is the level of funds the Federal Government currently allocates to forensic

science research? What will the transitional issues be in changing from a mostly

experienced-based system to a rigorous scientific-based system?

A2. As noted in the report, in Chapter 2, pages 14 & 15, NIJ funding for the forensic sciences in 2007 was a total of $6,590,702, of which $4,048,563 was directed to

DNA related research and only $2,542,139 was directed to crime scene tools, techniques and technologies; Impression Evidence; Facial Recognition; Iris Recognition;

and Automatic Fingerprint Matching. The Federal Bureau of Investigation has

about $33 million allocated for research purposes. Currently, I have no idea as to

the amount of forensic research funding from the Department of Defense, Department of State or other agencies. However, it must be noted that other agencies are

not developing forensic technology intended for State and local use. It could, however, be commercialized but it is critical that Congress recognize that even if a R&D

program for technology was increased, the forensic community would not have the

funding to purchase the new equipment or to maintain it if they were able to purchase it. Further, these programs are focused on the advancement of existing technologies not on validation.

Transitional issues should be considered first, research to validate the underlying

principles of the disciplines at issue, namely friction ridge determination, firearms

and toolmark analyses, and questioned document analyses. In addition to this would

be determination as to the application of statistical models that would allow for the

assessment of a statistical significance of the particular comparison.

Q3. What federal resources would be required to establish a National Institute of Forensic Science?

A3. I don’t believe that I am qualified to give a number for this as I do not work

in the Federal Government. However, if one were created or if the existing structure

was expanded, then funding would be necessary for staffing of the entity. In addition, there would be needed travel funds for numerous technical advisors necessary

to review, comment on and aid in implementation. They would then require a budget of great significance to support the operational needs of the State and local forensic community which I believe must be assessed through annual requirements analysis of that community.

83

Questions submitted by Representative Adrian Smith

Cost

Q1. What would the recommendations in the NAS report cost? Specifically, how

much funding do you think is required for the proposed forensics institute? How

much is necessary to fulfill the other technical recommendations, such as basic

research, validation, and standards for accreditation and certification?

You also state in your testimony that federal funding for disciplines outside of

DNA ‘‘falls far short of what is necessary.’’ Could you provide an estimate of

how much is necessary—even a ballpark figure for us as we move forward?

A1. I do not believe I can provide to you a total cost to do this as I am not a federal

employee so I am unsure of what it costs to run a federal agency. I have, however,

put together the numbers I believe to be rough for accreditation which I have listed

below. It is important to realize that this does not include daily operations

of labs, such as additional personnel (which have been estimated by some

to be as many as 10,000 examiner positions), nor the equipment needed not

only to support the new individuals, but also to replace and upgrade the

equipment existing in laboratories now, nor the additional laboratory

space for the additional personnel.

Accreditation NOTE: These numbers do not include any estimates for the

inclusion of Coroner or Medical Examiner offices.

From very preliminary surveys and numbers drawn from the number of police departments and sheriff offices, it is estimated that there may be 11,000 entities that

fit into the category of forensic service providers.

To train one individual in each agency to prepare for accreditation is approximately $5,000 each or a total of $55,000,000.

It requires approximately two years of time for that trained individual to bring

the agency into compliance to achieve accreditation. The cost of two years (times

11,000 agencies) for this process is estimated at $900,000,000.

Cost of upgrading of facilities to meet safety, security, etc., cannot be estimated

since these issues are variable.

The average cost of an accreditation site visit is approximately $10,000 per visit,

totaling $110,000,000.

The accreditation cycle is five years. The average cost of an annual surveillance

visit is $1,000 per site, so the total cost for a five-year cycle would be approximately

$11,200,000 for the surveillance visits.

Currently, administrative cost of the program is approximately $150.00 per (what

would be a certified individual). If each agency has an average of 10 individuals

working as forensic service providers, (that’s 110,000), the total is 16,500,000 per

year or $82,500,000 for a five-year cycle.

Certification NOTE: These numbers do not include any estimates for the inclusion of Coroner or Medical Examiner offices.

The cost of certification fees, travel to testing site, study materials, etc. is approximately $1,000 per individual (times the 110,000 estimated above), for a total of

$110,000,000. The ongoing fees and annual fees will be less than this figure for the

succeeding four years, maybe $75,000,000 each year.

NIST Capabilities

Q2. Assume for a moment that Congress opts not to create a new forensics institute

but still follows through on the technical recommendations in the NAS report.

Which among those should be carried out by NIST versus other agencies or private sector organizations? (May want to ask for more detailed answers in writing.)

To put this question another way, if no new agency is created, is NIST capable

of, and should they: a) Establish best practices for scientists and laboratories?

b) Establish standards for accreditation of forensic labs and certification of forensic scientists? c) Develop standard operating procedures for forensic labs? d)

Oversee education standards and accreditation of university forensic programs?

A2. Once again, the intent of the report was not to establish new provisions from

scratch, but to work from existing programs. NIST can aid in standardizing of the

protocols and best practices recommended (but not mandatory) as outlined by the

various Scientific Working Groups. I have already answered b., c., and d. above.

84

Crime Lab Accreditation

Q3. You note in your testimony that great progress has been made with respect to

accreditation of public crime laboratories—in 2005 over 82 percent of labs were

accredited. How do you think existing accreditation mechanisms should be dealt

with in light of your recommendations for the Federal Government to develop

its own accreditation standards? How might government intervention impact

private sector organizations’ incentives to continue its accreditation work?

A3. Actually, the report is quite clear. Just as in the accreditation of academic forensic science programs, the committee specifically stated that the existing accreditation programs not be ‘‘reinvented’’ by the Federal Government. What we intended

was for the federal entity to review and assess whether an accrediting body (for testing laboratories) met the international standards of ISO/IEC 17025 and therefore

would be able to conduct the assessments of compliance to those standards. During

that process, an accrediting body may have to adjust their requirements to meet the

ISO/IEC 17025 specifications. This action is to assure that all accreditations would

meet the standards required and therefore comply with federal requirements for

funding.

‘‘On Friday, September 12, 2008 at an annual meeting of the General Assembly

of the InterAmerican Accreditation Cooperation (IAAC), held in Paraguay,

ASCLD/LAB was formally accepted as a signatory to the IAAC Multi-lateral

Recognition Arrangement. This action means that ASCLD/LAB, and specifically

the ASCLD/LAB–International accreditation program for testing laboratories, is

now internationally recognized and accepted as operating in conformance with

ISO and IAAC standards and practices. ASCLD/LAB is the first Forensic

Science Accrediting Body in the United States to achieve this recognition.’’

Upon acceptance by the federal entity, the ASCLD/LAB International Accreditation Program would continue to conduct accreditations, meeting the intent of the

committee report. This would be true of any accrediting body which meets or would

meet the requirements and is approved.

Prioritization of NAS Recommendations

Q4. Among the technical recommendations in the NAS report, what one or two stand

out to you as the highest priority, and why?

A4. I believe that this is not a circumstance where A needs to be completed before

proceeding to B or C. Several of the recommendations can be implemented concurrently. Certainly the research needed to validate the underlying principles for latent

print comparison, firearms and toolmark examinations, and questioned document

analysis needs to begin (Recommendation 3), as well as the research into the effects of observer bias (Recommendation 5). This will take some time. At the same

time, the preparation for implementing and requiring accreditation forensic service

providers (labs, fingerprint comparison units, crime scene, and digital evidence sections) and certification of individuals can begin. This also will be a multi-year process for educating the applicable parties, aiding in the preparation, application, and

final accreditation and/or certification. (Recommendations 2, 6, 7, and 8).

Prioritization of Research Needs

Q5. Has the forensic science community attempted to prioritize research needs across

various disciplines? If not, in your opinion what areas of research are likely to

contribute the greatest benefits to the legal system through increased funding?

A5. See answer to number 4 above concerning research. While some research has

been conducted along these lines, there has been no nationally coordinated process

to assure that the needs of the community have been addressed.

85

ANSWERS TO POST-HEARING QUESTIONS

Responses by Carol E. Henderson, Director, National Clearinghouse for Science,

Technology and the Law; Professor of Law, Stetson University College of Law;

Past President, The American Academy of Forensic Sciences

The questions posed by the Committee are thoughtful and relevant. However,

most cannot be answered accurately at this time because of a lack of data.

For example: there is no data on how many of the Nation’s approximately 17,000

law enforcement agencies are conducting pattern analysis investigations such as fingerprint and tool mark comparisons and no line for ‘‘Forensic Science Research’’ in

the budget of federal agencies.

Without a solid platform of information it is not possible to answer questions such

as the cost of establishing a NIFS, the cost of implementing a national research

agenda and conducting the associated research, or even the cost of moving pattern

evidence from experiential to science-based. The same applies to the recommendation on transitioning control of forensic services from police to non-law enforcement

control.

While I have tried to give the Committee the best answers to their questions, I

strongly caution—as I did consistently in my written and oral testimony—that significant research is required to provide adequate data on which to base supportable

cases regarding implementation of most of the NAS recommendations.

Although much of the focus in this response has been on federal agencies, the majority of cases are processed by State and Local agencies.

A thoughtful, well-researched strategic plan to propel the forensic science community forward so that we all serve the justice system in the manner in which it deserves is required.

The first step should be to require an independent study of the funding and resource implications of the report recommendations, and to produce a strategic plan

for their implementation.

I know that the National Clearinghouse for Science Technology and the Law,

which I direct, has the capability and experience in bringing together expert groups

to be able to deliver such a plan in a timely fashion.

Questions submitted by Chair David Wu

Q1. The Academy of Forensic Sciences (AAFS) has created an Education Committee

and Accreditation Board to review the quality of forensic science education programs and current accreditation and certification programs. What have been

your findings?

A1. The AAFS established a Forensic Science Education Programs Commission

(FEPAC) in 2004 to review education programs.

FEPAC accredits forensic science education programs that lead to a Bachelor’s or

Master’s degree in forensic science or in a natural science with a forensic science

concentration. All programs that FEPAC accredits are located within institutions

that are accredited by a regional accreditation organization.

The review function of FEPAC is to assess programs against standards, and either grant or not grant recognition. There are currently 25 programs that have applied for and received FEPAC accreditation. The AAFS has estimated that there are

148 forensic science programs offered by colleges or universities in the United

States.

Q2a. What is the level of funds the Federal Government currently allocates to forensic science research?

A2a. There has been no study of all the funding resources covering all federal agencies. However, the following describes the situation as best as can be determined.

The only on-going source of general research funding in the scientific aspects of

forensic science is the National Institute of Forensic Science (NIJ).

Funds for DNA research were $9.227M in 2008 (http://www.dna.gov/funding/research-development/). Information about funding for non-DNA research is not readily available as they are allocated on a year-to-year basis depending on the level of

funds available, including Congressionally-directed funds.

Not all of the available discretionary funding is allocated to forensic science research.

There is a National Academy Panel working on the topic of NIJ research funding,

with an expected reporting date of early 2010 (see http://

www8.nationalacademies.org/cp/projectview.aspx?key=48868, Project Title ‘‘AssessVerDate 11-MAY-2000 14:26 Jun 13, 2009 Jkt 047720 PO 00000 Frm 00089 Fmt 6601 Sfmt 6621 C:\DWORK\T&I09\031009\47720 SCIENCE1 PsN: SCIENCE1
86

ing the Research Program of the National Institute of Justice’’; Project scope includes ‘‘1) What is the role of NIJ in supporting and sustaining the Nation’s scientific infrastructure of crime and criminal justice research . . ..’’

In general, only eight percent of requests to NIJ are supported. Other agencies

such as the FBI, BATF, DHS and DOD fund forensic research on an ad hoc basis.

Q2b. What will the transitional issues be in changing from a mostly experiencedbased system to a rigorous scientific-based system?

A2b. This question is impossible to answer without extensive research, as I described in my testimony to the House Subcommittee.

It is not known how many of the 17,000 or so law enforcement agencies in the

U.S. conduct some sort of forensic science testing, such as latent print or firearms

examinations.

Issues include: personnel qualifications; training and education, grandfathering or

waivers for non-science practitioners who can demonstrate competency (which in

turn begs the question of whether there is a need to transition); national quality

assurance standards; and the rights of states to implement their own standards

independent of federal mandates.

Q3. What federal resources would be required to establish a National Institute of Forensic Science?

A3. Australia has a national institute of forensic science with a mandate similar to

that proposed for NIFS in the NAS report.

The current fiscal year budget for NIFS Australia is $1.233M Australian (http:/

/www.anzpaa.org/pubs/ANZPAA%20Business%20Plan%202008-2009.pdf) which is

approximately $13.5M U.S. allowing for population and currency exchange rates.

Questions submitted by Representative Adrian Smith

Prioritization of NAS Recommendations

Q1. Among the technical recommendations in the NAS report, what one or two stand

out to you as the highest priority, and why?

A1. There is no national prioritization of forensic science research needs, identification of gaps and opportunities in anything other than in short-term, ad hoc or narrowly focused ways.

Without a valid research program and strategy forensic science cannot develop the

sound knowledge base needed for training, education, and service delivery that is

needed to serve the justice system.

Prioritization of Research Needs

Q2. Has the forensic science community attempted to prioritize research needs across

various disciplines? If not, in your opinion what areas of research are likely to

contribute the greatest benefits to the legal system through increased funding?

A2. Many forensic tests-such as those used to identify the source of tool marks or

bite marks—need to have additional, rigorous, scientific research to prove their validity and reliability.

Proper and rigorous scientific studies must be performed and published, which are

tightly coupled to legal requirements that focus on accuracy, validity and reliability,

including the human component (understanding human performance, bias, and

human error).

Sources of error and limitations of each discipline and associated methods have

to be identified.

87

ANSWERS TO POST-HEARING QUESTIONS

Responses by John W. Hicks, Director, Office of Forensic Services, New York State

Division of Criminal Justice Services (Ret.); Former Director, FBI Laboratory

Questions submitted by Chair David Wu

Q1. What is the level of funds the Federal Government currently allocates to forensic

science research? What will the transitional issues be in changing from a mostly

experience-based system to a rigorous scientific-based system?

A1. With regard to current funding levels for forensic science research, it is respectfully suggested that the federal budget may be the most accurate and reliable source

for this information. Traditionally, the National Institute of Justice is recognized as

the primary agency supporting forensic science research by academic institutions

and other practitioners. In addition, research funding is typically supported for

agencies which operate forensic laboratories such as the Federal Bureau of Investigation; the Drug Enforcement Administration; the Bureau of Alcohol, Tobacco,

Firearms and Explosives; the United States Secret Service; the U.S. Postal Inspection Service; and Department of Defense agencies. Research funds usable for these

purposes may also be available within and through the National Institute of Standards and Technology.

With regard to your ‘‘transition’’ question above, I think it is important to recognize that a sound scientific basis already exists for much of the work performed by

federal, State, and local forensic laboratories—especially work performed under the

discipline headings of forensic DNA analysis, forensic analysis of controlled substances, and forensic toxicology. In addition, work performed in other disciplines to

determine the chemical composition of materials recovered from a crime scene such

as explosives, paints, and polymers is carried out using proven and well-established

scientifically-based analytical methods. Many of these laboratories are accredited by

the American Society of Crime Laboratory Directors/ Laboratory Accreditation

Board (ASCLD/LAB) under their ‘‘Legacy’’ or ‘‘International’’ programs of accreditation. Under these programs, the laboratories must demonstrate that test methods

in use are fully documented and validated in order to maintain their accreditation

status.

As indicated in the recent report of the National Academy of Sciences, there appears to be a need for independent review of methodologies employed in the ‘‘experience-based’’ forensic disciplines which rely in large part on pattern recognition and

comparison techniques such as those employed in the examination of fingerprints;

firearms and fired ammunition components; toolmarks; impression evidence; hand

writing; and crime-scene reconstruction. As indicated in my testimony before the

Subcommittee, I believe that data may exist that could be subjected to further studies to bolster the scientific underpinnings of the work being performed and provide

greater assurance for the courts in considering forensic evidence. In some areas, it

may be necessary to gather additional data for specific studies to address questions

that have arisen.

In my view, the most efficient, effective, and economical way to accomplish the

‘‘transitions’’ where such a need is indicated is through a coordinated effort by agencies already engaged in forensic science research under the general guidance of a

national advisory board comprised of forensic science practitioners, research scientists and academicians. Established Scientific Working Groups for the various forensic disciplines would be engaged in this effort subject to the general guidance of

the national advisory board. The National Institute of Standards and Technology

has already demonstrated its core competencies for this effort and should be given

a primary role in carrying out assessments of current methodologies and their supporting data and in conducting detailed and rigorous scientific studies where a need

is indicated to further validate forensic methods. This process should be sufficiently

transparent to assure the courts of the general acceptance and scientific validity of

forensic techniques. It would be important to provide expanded resources to support

the development and delivery of specialized training programs not only for forensic

laboratory personnel but also for the ‘‘client’’ groups that receive their work product

such as investigators, prosecutors, defense attorneys and judges. As indicated in my

testimony before the Subcommittee, the forensic DNA experience provides a helpful

and proven model in this regard.

Q2. What federal resources would be required to establish a National Institute of Forensic Science?

88

A2. I do not support the call for the creation of a National Institute of Forensic

Science. In my view, a separate federal agency would be unnecessarily duplicative

of well-established expertise, forensic services, and resources now in existence in

several federal agencies.

I also do not believe it is politically feasible or practical to incorporate all activities that might be characterized as ‘‘forensic’’ under a single entity as has been proposed. For example, death-investigation services as provided by Medical Examiners

and Coroners are typically and with rare exception conducted independent of and

apart from forensic laboratory operations as are other specialty services such as ‘‘forensic’’ odontology (bite mark evidence), and Fire Marshall activities in determining

the cause and origin of a suspicious fire. In addition, it is not clear that non-governmental forensic practitioners (so-called private experts) who provide services in civil

matters or for criminal defense purposes would be included under the scope and authority of a National Forensic Science Institute as proposed.

Questions submitted by Representative Adrian Smith

Prioritization of NAS Recommendations

Q1. Among the technical recommendations in the NAS report, what one or two stand

out to you as the highest priority, and why?

A1. In my opinion, elements found in NAS recommendations #1, #3 and #10 should

be given the highest priority.

As set forth under their recommendations #1 and #3, funding should be directed

at promoting scholarly, competitive peer-reviewed research which addresses issues

of accuracy, reliability, and validity in forensic science disciplines. Funds should also

be directed at assessing the development and introduction of new technologies in forensic investigations, especially technologies that improve the detection and discrimination potential for materials typically encountered at crime scenes and automation technologies which can be applied to reduce evidence processing times.

Under the NAS recommendation #10, funding should be made available for distribution to educational institutions and other appropriate organizations to encourage the development and improvement of graduate education programs in the forensic sciences. Funding should also support continuing education programs for lawyers, judges, law enforcement personnel, practitioners and other groups that are involved in the collection of physical evidence or groups that utilize the results of forensic analyses within the criminal justice system. Such groups might include those

involved in the medical treatment of victims of crimes.

Prioritization of Research Needs

Q2. Has the forensic science community attempted to prioritize research needs across

various disciplines? If not, in your opinion what areas of research are likely to

contribute the greatest benefits to the legal system through increased funding?

A2. I believe that steps have been taken within individual forensic disciplines to

identify research and developmental needs. Typically these have been articulated

through the various Scientific Working Groups. As expressed in my written statement, I believe a national advisory board comprised of representatives from the

criminal justice and crime laboratory communities, working with relevant professional organizations, accrediting bodies and individual discipline scientific working

groups, would provide the best perspective for assessing and assigning these priorities. This activity would be supported by a closely coordinated effort among key federal agencies to include the National Institute of Standards and Technology, the National Institute of Justice and the Federal Bureau of Investigation.

89

1Dr. Martin Luther King, Letter from Birmingham Jail. 2Strengthening Forensic Science in the United States: A Path Forward. National Academies

Press. 2009.

ANSWERS TO POST-HEARING QUESTIONS

Responses by James C. Upshaw Downs, Forensic Pathologist/Consultant, Coastal

Regional Medical Examiner, Georgia Bureau of Investigation

Questions submitted by Chair David Wu

Q1. What do you feel have been the institutional impediments that have prevented

a national vision for the forensic sciences? What about our current infrastructure

proves resistant to change?

A1. Impediments to change in forensics exist on multiple levels.

Inertia

Lumping (one size-fits all solutions)

Accreditation& certification

Resources/facilities

Massive unfunded mandate

Personnel

Training/continuing education

Caseload

Adversarial jurisprudence

Lack of sufficient information acquisition and transfer

First and most pervasive is inertia. A national resignation to the status quo is

defended with typical ‘‘easy’’ answers: insufficient resources, lack of jurisdiction, lack

of incentive, overwhelming case loads, etc. The truth is that there is no ‘‘system’’

to change. The present U.S. local, county, State, and federal jurisdictions have different strategies for accomplishing the scientific analysis of evidence and the presentation of same into the courts. Even as far reaching a change as the Daubert decision by the Supreme Court of the United States is not a national evidentiary standard. It does provide guidelines to courts under the federal umbrella but is not directly applicable across the board. Thus the legal precedent arguably insisting that

quality forensic work is a federal responsibility and essential for justice is little

more than a footnote in many areas. ‘‘Injustice anywhere is a threat to justice everywhere.’’ 1

The reality is that, as was pointed out by the NRC report, the forensic sciences

have no champion to provide that vision for change or a unified drive to implement

and follow through on what is sure to be a slow and trying process of updating. The

NRC Committee recognized a compelling to do things differently if we truly wanted

substantive change. Having carefully considered the issue over the course of years

and benefiting from numerous presentations by practitioners in numerous sub disciplines, the diverse NRC Committee made this challenge their first priority. The

response to this, their paramount recommendation, will determine just how ingrained the mindset of inertia is. Merely complaining that change is needed does

nothing to effect such change.

The need for a high-level champion for the needs of forensics is obvious. The question then becomes where such best to locate the oversight. Again, the committee

specifically considered numerous possibilities but these experts best advice was to

start anew.2 Failing that, it would seem most logical that since we are talking about

the application of science to justice, the existing natural fit would be within justice.

All the revisions in existing practice would have to take place concurrently with

continued case throughput. In many areas, crushing backlogs in evidence analysis

are albatrosses around a lab’s neck. Leadership to instill confidence in the personnel

involved and in the user agencies must occur in advance of and continue simultaneously with implementation in order to achieve maximal success.

Although in practice the crime lab and Medical Examiner/Coroner worlds intersect routinely, they are not by any stretch the same. As a former State crime lab

director, I fell qualified to address certain large picture issues in that arena but

would defer to a more experienced active crime laboratorian in discussion of details

and certain other issues. In the area of death investigation, the recognition of the

important difference between the office of the Medical Examiner and that of the

Coroner must be kept in mind. Of course, there is no national death investigation

system at all. Every one of the 50 states and all ∼3,000 counties operate differently—sometimes dramatically so. Roughly half of the U.S. population is served

90

3 U.S. Rep. Tip O’Neil by http://www.riverdeep.net/current/2000/10/103000¥politic.jhtml 4Strengthening Forensic Science in the United States: A Path Forward. National Academies

Press. 2009.

by a forensic pathologist-based (read scientifically founded) investigation and half by

an elected coroner-based (read little to no training or background required) operation. If we are to truly reform the medical practice of death investigation, it is essential to not only recognize the inequity inherent in such a structure but to take

the step of doing something about it.

A brief digression into the history of the Anglo-based office of Coroner may help

to give perspective. References to a Coroner, charged with death investigation, can

be found as early as tenth century England. In the twelfth century, the office was

reinvented in order to balance the national debt, owing to the ransoming of Richard

the Lionhearted from Austria. The office was staffed by a nobleman of means in

order to ensure that the then-corrupted office of Sheriff (viz. Sheriff of Nottingham)

was kept at bay. The office then remained largely unchanged over the ensuing centuries until immigrating to the colonies. In the worst present-day cases, the office

of Coroner is elected and requires no requisite training in death investigation at all.

The myth of a general physician or other medical personnel somehow being better

qualified seems to derive from the belief that since most deaths are natural and

since a general physician knows about natural disease, they can triage the cases

with the remainder being referred to a more skilled Forensic Pathologist. The inherent flaw here is that it assumes that persons with natural disease have died a natural death—the Pygmalion effect in the extreme. Stagnation is comfortable. Since

the office of Coroner is generally elected and since ‘‘all politics is local’’3 it may well

continue prove to be difficult to eliminate an office that has existed for over a millennium. In order to ensure public health, national security, and justice roles, a national death investigation system should be created to ensure all similar cases are

treated the same, regardless of jurisdiction. This can only happen with a dramatic

change in the status quo and with a, heretofore abdicated, federal interest in the

process. With a strategic plan to correct extant jurisdictional iniquities, the office

of the Coroner can be absorbed into a professional medicolegal death investigation

system wherein the local (city, county, region, or State—depending on population

and needs) director is a board-certified Forensic Pathologist. The Coroner would become a skilled paraprofessional tasked with referral of appropriate cases for evaluation by the specialist.

All of the changes called for by the study are going to require significant funds

to accomplish the goals spelled out. Unfortunately, especially in the present economy, such a massive unfunded mandate calling on locals to eliminate a system

largely recognized to be working will be a tough sell. The NIFS would be an important component in getting nationwide compliance.

Another impediment is the seeming metastasis of the courtroom’s adversarial system into the forensics laboratory. While there have clearly been some high visibility

failures, the fact that we have recognized and corrected issues in the past speaks

to the fundamental fairness and confidence we should have in practitioners. Just as

other non-forensic sciences have weathered the storms of unethical practitioners and

faked research, so has the forensics world. Regardless of specialty, practitioners

should have no agenda in conducting their analyses other than finding immutable

scientific facts. As a practical matter it makes sense to assign forensic laboratories

to work closely with justice-related agencies. The reality is that the unquestioned

biggest user of forensic services is law enforcement. Although unheralded by some,

these results are oft used to exclude individuals and to avoid prosecutions. Some

argue an inherent bias in such a relationship but as the NRC committee clearly recommended (is carefully edited out of the commentary by many) is that forensic labs

should be operationally autonomous4 from law enforcement agencies. This does not

mean removed from same. In point of fact, too great an independence can bring its

own very real problems. Despite media popularity, television ratings have never

really equated with budget numbers. Especially in trying economic times, a free

agent crime lab or Medical Examiner/Coroner may find it difficult to compete for

funding.

An important and little recognized issue is the marked differences between crime

laboratories and Medical Examiner/Coroner operations. Further, within the latter,

the differences between Medical Examiners and coroners range from vast to none—

in short, there is no one-size-fits all answer, off-the-shelf answer. Were there, the

NRC committee would have called for same. Instead, the loud and clear message

of the panel was ‘‘we need change, we need it now, it will be expensive, and we need

guidance.’’

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5http://www.cms.hhs.gov/clia/

6http://www.reuters.com/article/pressRelease/idUS238414+29-Jul-2008+PRN20080729

7http://thename.org/index.php?option=com¥content&task=view&id=67&Itemid=69 8http://theiacme.com/iacme/accreditation.aspx

Accreditation and certification should go a long way to ensuring requisite neutrality and checks and balances. Practitioners of a craft are in a much better position to address the particular scientific expectations and needs of a specific discipline—one would not want a Forensic Pathologist (unless, perhaps one uniquely

skilled in that discipline) advising a trace evidence analyst how to conduct an assay

any more than one would think the reverse a good plan. As such, lab accreditation

should be spearheaded by groups such as the American Society of Crime Laboratory

Directors—Laboratory Accreditation Board to expand.

We are creating an artificial distinction in the forensic sciences in the over-emphasis of the forensic component and not enough on the science. In short, science

is science. A theory is developed, experiments conducted, results obtained, and an

interpretation is made. The difference is that in the forensic world, the test results

and opinions related thereto are often used in court proceedings (although oftentimes they are used to avoid taking a matter to trial). Skeptics argue that this

raises the bar on these test results because in the courtroom, someone’s life, liberty,

and/or livelihood are at stake. What they fail to mention is that this is no different

from scientific endeavors in other fora. A medical test may determine if medication

is given and if that medicine will save or take a life. An incorrect engineering test

can result in catastrophic design failure and untold loss of life.

Fundamentally, if we are to trust a laboratorian, we have to bestow that trust.

The qualifications and ethics of the practitioner must be assured in advance. For

example, in the medical model, clinical pathology labs are expected to receive national accreditation—usually a prerequisite for reimbursement. The Clinical Laboratory Improvement Act (CLIA) some two decades ago sought to assure the public of

such baseline confidences:5

The Centers for Medicare & Medicaid Services (CMS) regulates all laboratory

testing (except research) performed on humans in the U.S. through the Clinical

Laboratory Improvement Amendments (CLIA). In total, CLIA covers approximately 200,000 laboratory entities. The Division of Laboratory Services, within

the Survey and Certification Group, under the Center for Medicaid and State

Operations (CMSO) has the responsibility for implementing the CLIA Program.

The objective of the CLIA program is to ensure quality laboratory testing. Practitioners are expected to achieve individual certification in their respective disciplines—again an important assurance of laboratory excellence.

The lab accreditation model, although not universal, is well-accepted in the crime

lab world, with upwards of 80 percent of publicly funded crime labs accredited.6 In

the Medical Examiner world, there has been significantly less achievement of this

benchmark, with only ∼60 accredited sites.7 Coroner operations vary so dramatically

across the country that only a handful has achieved.8

Again to the medical model—in many areas, the Medical Examiner’s office falls

under a medical university. Such hospitals are tertiary care and training centers,

seeing the most complicated patients while training tomorrow’s physicians how to

treat them. Regrettably, in many cases, the outcome not surprisingly is bad. In such

cases falling under Medical Examiner jurisdiction (a fairly sizable percentage), the

medicolegal autopsy examination is conducted by employees of the same hospital

who will later be sued for malpractice in the death of the patient. There is simply

no reasonable alternative, as the paucity of Medical Examiners assures no other

qualified practitioners within a given area. As a result, some might question the veracity of the Pathologist’s conclusions due to the ‘‘obvious bias’’ in such circumstances. With sufficient checks and balances assured by accreditation, certification, peer review, continuing quality improvement, and enforced ethical canons

such issues are disposed of routinely as a matter of course. Challenges come when

some may not like the outcome of the report, as is to be expected. Certainly serious

allegations of wrong-doing should be investigated thoroughly, completely, and impartially but no more so than in any other arena. The first step to ensure confidence

in the practice of forensic sciences is to require the accreditation and certification

which will mandate a system of checks and balances is in place.

The lack of available recent data regards the overall needs and status of the Nation’s forensic services providers makes a compelling case for one of, if not the most,

important impediments. Annual practitioner needs assessments should be conducted

to determine what those actively engaged in the profession need in terms of eduVerDate 11-MAY-2000 14:26 Jun 13, 2009 Jkt 047720 PO 00000 Frm 00095 Fmt 6601 Sfmt 6621 C:\DWORK\T&I09\031009\47720 SCIENCE1 PsN: SCIENCE1
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9Strengthening Forensic Science in the United States: A Path Forward. National Academies

Press. 2009. 10http://www.aaas.org/spp/rd/fy09.htm 11 H.R. 1105, One Hundred Eleventh Congress of the United States of America. 12 H.R. 1105, One Hundred Eleventh Congress of the United States of America. 13http://www.ojp.gov/bjs/abstract/meco04.htm 14 H.R. 1105, One Hundred Eleventh Congress of the United States of America.

cation/training, equipment, facilities, staffing, research, and other resources. Such

information is simply unavailable at present.

Q2. What is the level of funds the Federal Government currently allocates to forensic

science research? What will the transitional issues be in changing from a mostly

experience-based system to a rigorous scientific-based system?

A2. Ascertaining the present level of federal funding to all forensic matters is beyond my ability, as it was beyond the NRC committee’s.9 Based on the 2009 budget, some observations can be made. Total federal research includes, ‘‘. . . $151.1 billion

in federal R&D, an increase of $6.8 billion or 4.7 percent above the FY 2008 estimate. As a result, every major R&D funding agency will receive an increase greater

than the expected rate of inflation, and in many cases the final FY 2009 numbers

are larger than the budget request submitted by the previous administration

. . ..’’ 10 In the fiscal year 2009 year, the Office of Justice Programs is appropriated $156,000,000 for DNA related and forensic programs and activities, specifically include through the National Institute of Justice $151,000,000 for DNA analysis and

capacity enhancement program; $5,000,000 for the Post-Conviction DNA Testing

Program; and $25,000,000 for Paul Coverdell Forensic Science Improvement

Grants.11 Thus 0.1 percent of the total federal research money goes to ALL the

forensics needs. By way of comparison, the budget includes $125,471,000 for the National Center for Complimentary and Alternative Medicine and $134,344,000 for the

Center for Veterinary Medicine.12 There is absolutely no assurance that any of this

money will go to practitioner or end-user driven targeted research or that research

done in Defense or similar areas will be made available as deliverables to the locals

involved in forensic practice. In general, I believe a budget analyst would have to

research the question in depth to be more precise than that.

In my specialty of medicolegal death investigation, the numbers are much easier

to find. I believe the answer is basically none. The only funding stream open to Medical Examiners is the $25,000,000 Coverdell grant program—but it must be remembered that this pot is distributed across the board to all states via formula grants

and a small portion for competitive grants—none of which are designated specifically to research. Arguably, some programs such as the Violent Death Reporting

System impact the Medical Examiner/Coroner world, but not in terms of research

directly applicable to the practice of the craft. The Bureau of Justice statistics did

analyze the status of the country’s Medical Examiners/coroners for the first time

ever in 200513 but again this fact-finding assessment is hardly useful applied

science research.

Medical Examiners have long clamored for increased funding in the field. True,

a proportion of the U.S. Medical Examiners are affiliated with Medical Schools and

may get small research stipends through such associations but these amount to basically to little more than slightly expanded basic service provisions (for example

histology slides, chemical analyses, etc.). Serious questions such as the rates of and

differences in wound healing, injury mechanisms in shaken/impact syndrome cases,

and radiologic-clinical-pathologic correlation abound. The low fruit is remains and

is easy to pick.

Personally speaking, I have never received federal dollars for research nor am I

familiar with any Medical Examiner who has received such monies. In fact, despite

being actively engaged in research throughout my career, I have only received a

one-time, $1000 stipend to employ a medical student one summer to compile case

data for me. Everything else I have done, including ongoing very expensive CT and

MRI studies in child abuse cases, has relied exclusively on the charity of others.

This is hardly a basis on which to build a system. Consider that of the in excess

of $151 billion in federal research and development, millions are spent on medical

research alone14 and none on medicolegal death investigation. The potential for improvement here is obvious and the cost should be remarkably cheap.

As for transitional issues, movement to a more science-based system presumes the

system in question lacks a scientific basis. Medicolegal death investigation, properly

conducted, is headed by a board-certified physician specializing in the medical

science of forensic pathology. The major issue in transition would then relate to

bringing lesser systems ‘‘up to code.’’ This would mean redefining the role of lay

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15http://thename.org/index.php?option=com¥content&task=view&id=97&Itemid=41

Coroners who presently serve roughly half the U.S. population and ensuring in all

cases a qualified physician is not only available to but responsible for each local jurisdiction.

Issues would relate to the inadequate numbers of board certified Forensic pathologists available to assume such a role. Given the present numbers of active full-time

practitioners (estimated at 400) we would have to double the number of newly-minted practitioners from the present of slightly less than 40 to ∼80. Recruiting and finding the resources for doubling the population in question then become related

issues. Replacing the office of coroner, as called for by the NRC Committee, would

require several matters be dealt with. As the Coroner is an elected and/or constitutional office, the relevant laws would have to be changed. Appropriate new law

would need to be enacted (such as the Model Post Mortem Examinations Law proposed by the National Association of Medical Examiners15 ). Acceptable interim procedures and practices would need to be formulated. Adequate facilities, resources,

and support would need to be put in place at the regional and/or local levels to handle a dramatically increased workload at whichever level would be involved. Additional costs for storage, transport, and processing of remains would be incurred regardless of which model system were established. The eventual fate of the office of

Coroner would need to be decided—either fading into the annals of antiquity or revision into a scientifically trained medicolegal lay investigator.

Arguably some other forensic disciplines are on clearly less solid footing. In the

vast majority of forensic sciences as a whole, the laboratorians’ efforts began as scientific endeavors to answer specific questions. The system is really built more on

applied science answering targeted questions than systematic research as many

other applications practice. Some issues can be anticipated to be similar to those

faced in medicolegal death investigation—facilities, resources, and personnel—while

maintaining active case throughput. Incumbent with such a dramatic increase in

staff and labs would require sufficient accreditation and certification opportunities

to keep up with the increased dramatically demand for same, if the recommendation

to require accreditation and certification. Others areas of concern might include actual prioritization/conduction of research and translation from the theoretical to the

practical. Obviously, the oversight of such an undertaking would be important—who

will, without bias, ensure compliance with regulations is uniform across the board.

The NRC assigned the duty to their chief recommendation, the National Institute

of Forensic Sciences.

Acceptance of all the foregoing is assumed by those directly involved at various

levels in the affected systems. Given the track record, as relates to the existing system, this may a pipe dream. Without strong, public, and broad support for the suggested improvements, there is little reason to believe that the net result will be anything but the same.

Another issue would be understanding of and acceptance of the new system by

users of the services. All the change would be for naught if the adversarial system

of the courtroom failed to accept them. There is precious little reason to believe that

the actual test results will dramatically differ from those presently achieved. Those

same present results that we know from years of experience are valid, although dismissed by some (to whom the data are unfavorable) as somehow flawed, will remain

valid. The interpretations of results, as presented in courts, will remain inclusionary

to some accused and exclusionary to those many who do not make it to trial. Without addressing the undue influence of the adversarial legal system on the reportage

of scientific testing, there can be little hope of a better outcome. The bias inherent

in a system where (almost uniformly) the prosecution must use an accredited lab

and a certified scientist because they are already employed for that specific purpose

and therefore the prosecution cannot afford to solicit multiple persons for the purpose of proving a case the crime lab’s own scientist said there wasn’t one. Such extravagance is not a wise use of limited tax dollars. The defense argues it must use

the same crime lab already extant and when the result is not to their liking, argues

by insinuation that the analysis is somehow biased or flawed but such ad hominem

attack amounts to nothing more than empty words. Expert shopping, an option

chiefly available to the defense which is free to use whatever engaged report(s) favor

their position while conveniently never disclosing the many more support the prosecution’s case, must end. Some will protest loudly that such a fundamental change

in their ability to seek out qualified professionals jeopardizes their ability to represent their position. Such an argument is easily overcome if all solicited expert reports—on both sides—are automatically allowed, regardless of outcome. In my opinion, this would be one of the most difficult issues to address if we are to effectively

modify our system.

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16Strengthening Forensic Science in the United States: A Path Forward. National Academies

Press. 2009. 17 Ibid.

Q3. What federal resources would be required to establish a National Institute of Forensic Sciences?

A3. The NRC Committee said of the proposed NIFS:

‘‘The forensic science system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to overhaul

the current structure that supports the forensic science community in this country. This can only be done with effective leadership at the highest levels of both

Federal and State governments, pursuant to national standards, and with a significant infusion of federal funds.’’ 16

‘‘The forensic science enterprise needs strong governance to adopt and promote an

aggressive, long-term agenda to help strengthen the forensic science disciplines.

Governance must be strong enough—and independent enough—to identify the limitations of forensic science methodologies, and must be well connected with the Nation’s scientific research base to effect meaningful advances in forensic science practices. The governance structure must be able to create appropriate incentives for jurisdictions to adopt and adhere to best practices and promulgate the necessary sanctions to discourage bad practices.’’ 17

The resources existing within the Federal Government can be expected to include

the Department of Justice; the National Institute of Justice; the Federal Bureau of

Investigation, the Bureau of Alcohol, Tobacco, and Firearms; the Office of the Armed

Forces Medical Examiner; The National Institute of Standards and Technology; the

Department of Defense; the Department of Health and Human Services; the Drug

Enforcement Administration; the National Science Foundation; the National Academy of Sciences; the Institute of Medicine; the Library of Medicine; the Department

of Homeland Security; and other agencies.

The financial resources can be anticipated to be substantial. I have no experience

in the federal funding world and fell uncomfortable trying to predict how these existing entities might use their resources towards the forensics effort.

Questions submitted by Representative Adrian Smith

Prioritization of NAS Recommendation

Q1. Among the technical recommendations in the NAS report, what one or two stand

out to you as the highest priority, and why?

A1. Although the NRC committee charged with studying the issues advised against

separating the initiatives or emphasizing one to the exclusion of others, the reality

is that such a broad-reaching revision of such a far-reaching vision may not be easily achieved without dividing the response. Ideally all the recommendations should

proceed simultaneously on their own intersecting paths. If we separate the component proposals and attempt to sort by category, the recommendations can be simplified to address: accreditation/certification, education/training, research, oversight,

and medicolegal death investigation.

Professionally, I am keenly aware of the many needs of the Medical Examiner/

Coroner system nationally, however, I believe the greater good is served in addressing two issues which would arguably have the most impact the most quickly—accreditation/certification and research.

Accreditation of existing labs is a seeming daunting task given the lack of existing

investment in the process. The good news is that this should be much easier to

achieve than many fear because a sizable percentage of State crime labs already

have accreditation. Other labs are typically small and I believe lack of a concerted

effort is likely the biggest sticking point in moving to full accreditation. I can speak

from the personal experience as the former director of a State crime lab system with

175 employees who oversaw a 10 lab operation spread across a broad geographic territory go from zero to full accreditation in basically two years. There were naysayers

early in the process, especially since there were basically no new State funds set

aside for the effort. This can only be overcome by achieving buy-in from staff first,

followed by users. The mantra must reflect a philosophy that ‘‘one does not strive

for mediocrity.’’ This case example of how to achieve success though one’s own efforts reflected well of an excellent staff but credit for the financial aspects must be

given to the National Institute of Justice, who, working through the National ForenVerDate 11-MAY-2000 14:26 Jun 13, 2009 Jkt 047720 PO 00000 Frm 00098 Fmt 6601 Sfmt 6621 C:\DWORK\T&I09\031009\47720 SCIENCE1 PsN: SCIENCE1
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18 Executive Director, National Association of Medical Examiners. 19http://theiacme.com/iacme/accreditation.aspx 20http://medschool.slu.edu/abmdi/index.php

sic Science Technology Center and other partners within the Forensic Resource Network (Marshall University) showed that indeed the impossible can be achieved if

one merely sets the bar high enough and settles for no less than the best. A relatively small financial investment continues to pay massive dividends. Top management must aggressively pursue the goal if the mission is to succeed.

Employee certification is a slightly more difficult matter as a smaller percentage

of crime lab personnel already possess the requisite background. As this is a personal achievement, there may be policy requiring revision in some areas to allow

governmental employers to require and/or fund this credentialing process. In some

disciplines, there may need to be special provision made to ‘‘grandfather in’’ existing

scientific personnel. Another obstacle would be the strain the volume of scientists

requiring certification would place on the existing system.

In the area of death investigation, the present status of accreditation and certification are to a certain extent reversed for physicians and minimal to none for large

numbers of lay coroners. Some 85 percent of pathologists active in the field have

Pathology boards and 75 percent sub-specialty certification.18 All have the requisite

physician training. Professional practice standards have been promulgated. Only a

minority of existing Medical Examiner facilities have achieved accreditation. Usually this shortcoming relates to insufficient resources, staff, or facilities. Regardless,

the root cause would need to be addressed. Lay coroners have only a handful of operations (eight total19 ) achieving any formal accreditation. Formalized recognition

of basic skills is available through the American Board of Medicolegal Death Investigation,20 however, this has been primarily achieved by lay investigators employed

by Forensic Pathologists. If the coroners were to achieve the necessary training to

obtain this credential, it should dramatically improve death investigation in the affected jurisdictions—up to half the U.S. population.

Both certification and accreditation would ultimately serve to provide confidence

in the fairness of the analyses being conducted and impartiality and qualification

of the analyst. Structures are presently in place for both, however, the stress of

scale may well overburden the existing process. Advantages of the

professionalization of the practice and the practitioner in the achievement of these

goals would include adoption of ethical codes and continuous quality improvement

as part of the criteria for the standard.

The other issue of utmost concern would be validation of the underlying science.

As there are individuals presently incarcerated or awaiting trial, personal liberty is

at stake. Despite the foundation of all forensics in the underpinnings of science, the

focus has not been sufficiently broad. In order to confirm what experience tells us

is valid and to restore full confidence by the users in the truth and accuracy of the

system, sufficient validation should be aggressively pursued in those areas most

often used and most often challenged.

Prioritization of Research Needs

Q2. Has the forensic science community attempted to prioritize research needs across

various disciplines? If not, in your opinion what areas of research are likely to

contribute the greatest benefits to the legal system through increased funding?

A2. I do not believe there has been anything approaching a national plan on

forensics research. The field really originated by conducting targeted experiments to

answer case-specific questions. The tradition basically continues to the present day,

although obviously there has been more extensive research conducted through the

years. Another benefit of the proposed NIFS would be to ensure such a strategy

were created and implemented.

Specifically regards the research likely to be most cost-effective most quickly

would be validation of pattern-type forensic disciplines (fingerprint analysis, footwear impression comparison, firearms examination, document analysis, etc.). Another important area would be to expand preliminary work done on bias and see

the extent to which it actually could impact a case. It is imperative such research

on bias not be biased itself—if conducted with an eye to ‘‘proving’’ bias by governmental labs, a much more obvious potential bias (solicited contract forensic analysis)

might be overlooked, creating an illusion that one is a problem while the other is

not. Individuals involved in such research should absolutely have no real or perceived bias which might adversely impact the outcome of the studies.

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ANSWERS TO POST-HEARING QUESTIONS

Responses by Peter J. Neufeld, Co-Founder and Co-Director, The Innocence Project

Questions submitted by Chair David Wu

Q1. What is the level of funds the Federal Government currently allocates to forensic

science research?

A1. The Federal Government allocated $106 million to DNA related forensics programs in 2008 the bulk of which went to DNA backlog reduction. Non-DNA forensic

program spending by the Federal Government in 2008 has not yet been calculated,

but in 2007 that amount was $16.5 million.

Of the money spent on DNA, approximately $9 million was allocated for research.

Little to none of the non-DNA forensic funding is spent on research; the Coverdell

Forensic Science Improvement Grant Program awards grants primarily to eliminate

backlogs and to train and employ forensic laboratory personnel.

Q2. What will the transitional issues be in changing from a mostly experiencedbased system to a rigorous scientific-based system?

A2. In order to transition forensic sciences to a rigorous science-based system, basic

and applied research on the validity and reliability of assays, technologies, and devices will need to be conducted by an independent, science-focused federal agency.

After this research is completed, standards for methodology, reporting procedures,

and court testimony will need to be developed and implemented so that all assumptions made, conclusions reached, and inferences drawn by forensic science expert

witnesses will be supported and confirmed by research.

For forensic practitioners, the greatest transitional issues will involve continuing

education, training, and professional development so that they can meet certification

requirements in the fields in which they conduct examinations. As the research

evolves in each discipline, so too will the guidance on how evidence is presented and

how the forensic practitioners can testify in court.

For public crime laboratories, the greatest transitional issues will involve accreditation to the ISO 17025 level. While most publicly-funded crime laboratories are accredited, the majority of crime labs are not accredited to this more rigorous international standard. States and localities will also need to be encouraged to make

their crime laboratories independent of law enforcement agencies to ensure a working environment free of external pressures and bias.

Finally, on an immediate and ongoing basis, significant and continuous educational programs about the report’s findings regarding non-DNA forensic assays,

devices, and technologies and their limitations needs to be conducted for judges and

criminal practitioners, and updated as the research progresses.

Q3. What federal resources would be required to establish a National Institute of Forensic Science?

A3. Many of the ‘‘pieces’’ required for a National Institute of Forensic Science

(NIFS) exist in the Federal Government today. The National Science Foundation

and the National Academy of Sciences have experience in competitive grant-making

and have existing relationships with research universities and bodies to whom such

grants would be made. Once the research is completed, standard setting could be

done by the National Institute of Standards and Technology. Lastly, the compliance

and enforcement needs could be handled internally at NIFS and/or in cooperation

with other law enforcement entities. NIFS could be modeled after the lean and flexible regulatory body that administers the Clinical Laboratory Improvement Amendments (CLIA) at the Centers for Medicare & Medicaid Services. CLIA oversees all

clinical laboratory diagnostic testing in the United States and employs just 27 people in their administrative office and 30 employees over 10 regional cities across the

Nation.

Questions submitted by Representative Adrian Smith

Accreditation

Q1. Mr. Neufeld, you emphasize in your testimony the importance of laboratory accreditation to ensuring quality control, and Mr. Marone noted that the overwhelming majority of crime labs used by prosecutors are now accredited. Does

the Innocence Project also make sure to support work only from accredited labs?

Why or why not?

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1Strengthening Forensic Science in the United States: A Path Forward, Committee on Identifying the Needs of the Forensic Science Community, The National Academies Press (2009), p.

7–18. 2 Ibid., p. 7–2. 3 Ibid., p. 7–3.

A1. The National Academy of Sciences’ (NAS) report on Strengthening Forensic

Science in the United States’ seventh recommendation1 is for the mandatory accreditation of all crime laboratories and the certification of all practitioners.

It is critical, however, that the existing, voluntary accreditation standards are assessed for strength and reliability. The largest crime laboratory accreditation organization in the United States, the American Society of Crime Laboratory Directors

Laboratory Accreditation Board, accredit 362 laboratories (the majority of which are

publicly funded). However, only 80 of their laboratories are accredited under their

‘‘international’’ program—the higher tier of crime lab accreditation that is most compliant with the international standard, ISO/IEC 17025. That program notably omits

three important elements that are present in its lower tier accreditation program:

(1) blind proficiency testing, (2) requirements for safety equipment and the physical

design of the lab, and (3) requirements for written objectives.

The NAS report also notes that, ‘‘[a]ccreditation is just one aspect of an organization’s quality assurance program, which also should include proficiency testing

where relevant . . .. In the case of laboratories, accreditation does not mean that

accredited laboratories do not make mistakes, nor does it mean that a laboratory

utilizes best practices in every case, but rather, it means that the laboratory adheres to an established set of standards of quality and relies on acceptable practices

within these requirements.2 . . . Accreditation cannot guarantee high quality—that

is, it cannot guard against those who intentionally disobey or ignore requirements.’’ 3

In fact, past allegations of negligence or misconduct filed under the federal Coverdell program have included accredited laboratories. Consequently, there is a need

to assess the strength of current accreditation standards and to make sure make

sure that the standards reflect best practices and are as stringent as they can be.

Moreover, for the solo or two person laboratory, current accreditation requirements

may be unduly burdensome. It is certainly possible that NIFS would make the accreditation requirements more rigorous on matters that affect reliability of results

yet more accessible for the excellent but very small forensic laboratories.

The Innocence Project typically engages accredited laboratories for conducting

post-conviction DNA testing in their cases. At times—particularly when more advanced testing on minute samples is required—a two person laboratory that has not

applied for accreditation, Forensic Science Associates (FSA), has provided more reliable results than the accredited laboratories. Indeed, Mr. Marone is personally familiar with the extraordinary high quality work accomplished by FSA. In the Earl

Washington DNA exoneration, the initial post-conviction DNA typing was conducted

by Virginia’s ASCLD–LAB accredited State forensic laboratory. Subsequent testing

was conducted by FSA. Not only did the FSA results contradict the Virginia State

lab results but FSA concluded that the State lab had reached an erroneous conclusion. When the then director of the State lab refused to conduct a meaningful investigation of what went wrong or even acknowledge that an error had been made, the

Governor asked ASCLD–LAB to intervene and conduct an external investigation.

ASCLD–LAB’s report, which I attach to this document, confirmed that FSA’s results

were both correct and reliable and that the accredited Virginia laboratory had indeed made a serious error. Nevertheless, within days of that report, ASCLD–LAB

re-accredited the Virginia State lab, without so much as a comment on the impact

of its own highly critical external investigation in the Earl Washington case.

Admission of Evidence

Q2. Mr. Neufeld, you state in your testimony that ‘‘it is absolutely clear—and essential—that the validity of forensic techniques be established ‘upstream’ of the

court, before any particular piece of evidence is considered in the adjudicative

process.’’ Based on the NAS report findings then, are you calling for courts to

deny admission of forensic evidence from all disciplines except DNA analysis?

If so, do you think that will improve the justice system’s ability to convict the

guilty and protect the innocent?

A2. It is not the job of judges and lawyers to become scientific experts, and hardly

a responsibility we can place on the shoulders of a jury. This is the reason why

clarifying the specific reliability of all such evidence and the parameters for testifying on such evidence are so critical to the administration of justice. When forensic

98

4 Ibid., p. S–5. 5 Ibid., p. 5–1. 6 Ibid., p. S–5. 7 Ibid., p. S–6. 8 Ibid., p. S–6.

evidence enters the courtroom, it should be sound and not used beyond its demonstrated scientific limits. The NAS report states ‘‘with the exception of nuclear

DNA analysis, however, 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.’’ 4

The Report divides forensic disciplines into laboratory-based and experience-based

disciplines. Laboratory-based disciplines such as ‘‘DNA analysis, serology, forensic

pathology, toxicology, chemical analysis, and digital and multimedia forensics—are

built on solid bases of theory and research.5 The level of scientific development and

evaluation varies substantially among the forensic science disciplines.’’ 6 Some experience-based disciplines (fingerprint analyses) have had the support of more dedicated research in the past compared to other experience-based disciplines (lip print,

ear print comparisons7 ). Secondly, experience-based disciplines suffer from the same

problem—‘‘A body of research is required to establish the limits and measures of

performance and to address the impact of sources of variability and potential bias.

Such research is sorely needed, but it seems to be lacking in most of the forensic

disciplines that rely on subjective assessments of matching characteristics.’’ 8

This strongly suggests that non-DNA forensic evidence should not be used to individualize in the courtroom, and the entire criminal justice system would be well

served by respecting this fact as soon as possible. This is not, however, to say that

non-DNA forensic evidence has no place in the courtroom, nor to say that there

should be a rule or rules immediately imposed upon courts to ban all such evidence.

The report offers no judgment about closed or pending cases and instead offers forward looking recommendations for the future of forensic science. We agree with the

report. Indeed, each case, post-conviction or pending, must be considered on its own

merits.

Prioritization of NAS Recommendations

Q3. Among the technical recommendations in the NAS report, what one or two stand

out to you as the highest priority, and why?

A3. Aside from the NAS report’s primary recommendation to create a National Institute of Forensic Science, the two priority recommendations for the forensic community should be funding research (Recommendation #3 and #5) and developing

standards from that research (Recommendation #6). In competitively funding peerreviewed research to establish validity and reliability of the non-laboratory-based forensic disciplines, Congress would be applying and requiring the same scientific

principles and processes for validation that had been utilized so successfully for forensic DNA. Once the research has been satisfactorily completed and the technique,

method or assay validated, then standards must be developed so that reliable procedures and practices can be provided to the forensic examiners in a shovel-ready format.

Prioritization of Research Needs

Q4. Has the forensic science community attempted to prioritize research needs across

various disciplines? If not, in your opinion, what areas of research are likely to

contribute the greatest benefits to the legal system through increased funding?

A4. In terms of prioritizing research, I can’t speak for the forensic science community. To date, the non-DNA forensic science community has had to use virtually all

of the funding it receives for addressing backlog issues and funding laboratory

needs. In the past, there has been little time and virtually no money available for

research efforts. Previous needs assessments, The U.S. Department of Justice report, Forensic Sciences: Review of Status and Needs (February 1999 and the American Society of Crime Laboratory Directors’ 180–Day Study Report: Status and

Needs of United States Crime Laboratories (May 2004) did not prioritize the research needs in the forensic sciences intended to spur the change in practice that

the NAS report deems essential to justice. It is the Innocence Project’s position that

areas of research should be prioritized by areas of greatest needs. We look forward

to working with Congress to find a way to assess this prioritization.

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Appendix 2:

ADDITIONAL MATERIAL FOR THE RECORD

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