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49–681 PDF 2009

NATIONAL RESEARCH COUNCIL’S PUBLICATION 

‘‘STRENGTHENING FORENSIC SCIENCE IN THE 

UNITED STATES: A PATH FORWARD’’ 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

MAY 13, 2009 

Serial No. 111–28 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia, Chairman 

PEDRO PIERLUISI, Puerto Rico 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

ANTHONY D. WEINER, New York 

DEBBIE WASSERMAN SCHULTZ, Florida 

MIKE QUIGLEY, Illinois 

LOUIE GOHMERT, Texas 

TED POE, Texas 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

J. RANDY FORBES, Virginia 

TOM ROONEY, Florida 

BOBBY VASSAR, Chief Counsel 

CAROLINE LYNCH, Minority Counsel 
(III) 

C O N T E N T S 

MAY 13, 2009 

Page 

OPENING STATEMENTS 

The Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from 

the State of Virginia, and Chairman, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 1 

The Honorable Louie Gohmert, a Representative in Congress from the State 

of Texas, and Ranking Member, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 2 

WITNESSES 

Mr. Kenneth E. Melson, Acting Director Bureau of Alcohol, Tobacco, Fireams 

and Explosives, former Director, Executive Office for the United States 

Attorneys, U.S. Department of Justice, Washington, DC 

Oral Testimony ..................................................................................................... 5 

Prepared Statement ............................................................................................. 8 

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

Richmond, VA 

Oral Testimony ..................................................................................................... 15 

Prepared Statement ............................................................................................. 18 

Mr. John W. Hicks, Director, Northeast Regional Forensic Institute, The 

University at Albany, State University of New York, Albany, NY 

Oral Testimony ..................................................................................................... 26 

Prepared Statement ............................................................................................. 27 

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

Oral Testimony ..................................................................................................... 29 

Prepared Statement ............................................................................................. 31 

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 69 

(1) 

NATIONAL RESEARCH COUNCIL’S PUBLICATION ‘STRENGTHENING FORENSIC SCIENCE 

IN THE UNITED STATES: A PATH FORWARD’ 

WEDNESDAY, MAY 13, 2009 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 3:36 p.m., in room 

2141, Rayburn House Office Building, the Honorable Robert C. 

‘‘Bobby’’ Scott (Chairman of the Subcommittee) presiding. 

Present: Representatives Scott, Weiner, Gohmert, and Poe. 

Staff present: Bobby Vassar, Majority Subcommittee Chief Counsel; Mario Dispenza, (Fellow) ATF Detailee; Veronica Eligan, Majority Professional Staff Member; Jesselyn McCurdy, Majority 

Counsel; Caroline Lynch, Minority Counsel; and Kimani Little, Minority Counsel. 

Mr. SCOTT. The Subcommittee will now come to order. Good 

afternoon, and welcome to the hearing before the Subcommittee on 

Crime, Terrorism, and Homeland Security on the National Research Council’s Publication ‘‘Strengthening Forensic Science in the 

United States: A Path Forward.’’ 

The term ‘‘forensic science’’ refers to a broad range of disciplines, 

each of which aims to solve and understand crimes based on physical evidence. Forensic science has played a critical role in criminal 

investigations and prosecutions for decades, and law enforcement 

and prosecutors have come to rely on it and for good reason. 

Scientific evidence offered at a trial by a witness identified by the 

court as an expert can be powerful and often indisputable. Forensic 

science is also popular. So popular that television networks have 

created a number of successful fictional, sometimes nonfictional, 

programs based on forensic science, which reach virtually every 

jury pool across the country. 

Between the popularity of forensic science and the court’s acknowledgement of the forensic evidence witness as an expert, the 

evidence presented against a defendant can be very persuasive. 

Unfortunately, the reality is that not all forensic techniques have 

the same reliability. DNA is now recognized as among the most reliable and useful tools in the area of forensic science. 

The development of DNA technology has allowed scientists to use 

genetic evidence to identify victims and perpetrators with almost 
2 

complete accuracy, enable investigators not only to solve many 

crimes that otherwise would have gone unsolved, but also to establish innocence of 233 wrongfully convicted people in the United 

States. 

Alarmingly, in over 50 percent of these wrongful conviction cases, 

other non-DNA forensic evidence was introduced and likely contributed to the wrongful conviction. This revelation has raised serious 

questions about the reliability of many forms of non-DNA forensic 

evidence. Where the defendant’s liberty or even life at stake, evidence as powerful as forensic evidence must have the utmost reliability. 

In response to these disturbing questions about the reliability of 

forensic science, Congress authorized the National Academy of 

Sciences to conduct a study. The committee made up of members 

of the forensic science and legal communities examined the current 

state of forensic science and, in February 2009, issued a report entitled, ‘‘Strengthening Forensic Science in the United States: A 

Path Forward.’’ 

The report confirmed our fears and cites many serious problems 

with the national forensic science system. The report shows that 

the most pressing problem is a need for a comprehensive knowledge base for many disciplines. 

While DNA evidence has benefited from extensive scientific research, other forensic fields such as hair and fiber analysis, ballistic analysis, and handwriting samples, among others, have not 

had the same level of research and scrutiny leaving their reliability 

questionable. The report also describes a system that is woefully 

understaffed and undertrained and lack uniform standards and 

poor oversight. 

Perhaps the most disturbing part of this study’s findings is that 

trial judges rarely exclude forensic evidence at trial even though 

the scientific community cannot ensure reliability of the evidence. 

Moreover, trial lawyers lack scientific training to adequately assess 

and question the forensic witnesses’ conclusions. 

This condition does not bode well for justice, and changes are 

clearly in order. The report makes a number of recommendations 

to approve forensic sciences in the United States, most prominently, creating a National Institute for Forensic Science. The 

NIFS would be a new entity, independent from the existing forensic science system, law enforcement agencies and would be tasked 

with organizing and overseeing all forensic science operations in 

the country. 

It would be tasked with, among other things, establishing best 

practices, creating accreditation standards, coordinating and promoting research initiatives, and assessing new and existing technologies and funding state and local forensic science agencies. 

Today we will discuss the study’s findings and recommendations. 

It is now my pleasure to recognize the Ranking Member of the 

Subcommittee, the gentleman from Texas, Judge Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. And thank you for 

having a hearing to address the ongoing efforts to identify weaknesses and make improvements to the forensic science community 

in the United States. 
3 

I do welcome the witnesses, appreciate your being here. Thank 

you for joining us and, obviously, you submitted written testimony, 

and we appreciate your being here to talk to us in person. I also 

understand too well the significance of forensic science to our criminal justice system at every level of government having been a prosecutor, a district judge, and then a chief justice. 

But forensic science, particularly DNA technology, has an extraordinary ability to assist in solving crimes, identifying missing 

persons and victims of mass casualties as well as guaranteeing justice in American courtrooms and courtrooms throughout the world. 

As noted by the National Academy of Science’s study on forensic 

science that brings us here today, nuclear DNA testing is now the 

forensic gold standard by which all other forensic disciplines are 

measured. For it is now well-accepted, scientifically validated ability to support individually specific conclusions to the level of research funding so that the legal foundation for its admission in 

courtrooms, DNA testing is a forensic science that has grown up 

right, so to speak. 

The NAS study does not, however, portray other forensic disciplines in such positive light. In fact, it calls into question the scientific validity and legal reliability of a number of forensic disciplines that have been admitted into courtrooms throughout this 

country for decades. 

The study takes great pains to question the scientific validity of 

many, if not all, of the so-called ‘‘pattern based’’ disciplines, such 

as friction ridge analysis, ballistics, and tool mark identification. 

Excuse me. 

Not surprisingly, the study’s findings have caused significant 

concerns among those in the legal profession who are involved with 

these forensic disciplines. In a recent article of the National Law 

Journal, the real life consequences of these findings are explored. 

The article documented numerous defense councels who are citing 

the report’s finding in post-conviction motions, appeals, and pending trials challenging what they claim is invalid ballistics testimony. 

The article went on to quote a member of the board of directors 

of the National District Attorneys Association as saying, the 

science of ballistic has been tested over and over again, and the 

problem was not with the science but with those applying it. By 

contrast, various defense attorneys work hard at suggesting that 

the science of ballistics did not support the testimony that was 

being given. 

Which brings me to what I think is an important point that was 

not brought out in much of the reporting following the release of 

this study. That is this: the belief that particular forensic disciplines have not been scientifically validated does not mean that 

they are invalid or unreliable, simply that more research needs to 

be done to validate them. I will be interested in hearing the panel 

review on that topic. 

The study does not stop there. It documents what is called fragmented forensic community in need of oversight and governance, 

community that lacks standard methodologies and terminologies, 

mandatory accreditation and subrogation, and sufficient peer-reviewed research. 
4 

The study recommends that we create a new independent Federal entity, the National Institute of Forensic Science, to accomplish these objectives. I wonder given the current economic climate 

whether it makes sense to create an entirely new entity that will 

attempt to replicate what a number of other state and Federal 

agencies as well as private entities are already doing. 

Recent history has shown us that creating new agencies at the 

Federal level can be a tremendously costly and complex endeavor 

with moderate success. By its terms, the study did not purport to 

address the financial largesse that will be required to implement 

this new recommendation. 

The study specifically left that task to the congressional budget 

office. Similarly, there was very little discussion about the 

downsides of creating such an entity. I look forward to hearing the 

panel’s views on this matter as well as the possibility of leveraging 

some of the strengths of those currently involved in the forensic 

community to address some of the needs documented in the study. 

But it was my understanding this was addressed years back 

when the U.S. Supreme Court said that the judge in a case would 

be the gatekeeper. You couldn’t bring in scientific evidence and a 

supposed ballistic expert, for example, could not testify unless the 

judge found that they met the requirements as set up by the Supreme Court for legal sufficiency. 

As a former gatekeeper myself, sometimes I let in evidence, 

sometimes I didn’t, but it had more to do, particularly in the case 

of ballistics, of whether the individual seeking to testify had the required requisite training and experience and, you know, whether it 

was credible testimony and worthy of being presented to the jury 

before it was presented to the jury. That was our job. 

You are a distinguished panel of witnesses with a wealth of experience dealing with the legal, scientific, and leadership aspects of 

forensic science, and I look forward to hearing from you. And, 

again, I do appreciate your time here today. 

Thank you, Mr. Chairman. I yield back. 

Mr. SCOTT. Thank you. We have been joined by the gentleman 

from New York, Mr. Weiner. I will ask if you have a brief comment; otherwise, we will ask for opening statements to be placed 

on the record. 

Mr. WEINER. I appreciate the offer—— 

Mr. SCOTT. Thank you. We have a distinguished panel of experts 

for us today. Our first witness is Mr. Kenneth Melson, acting director of the Bureau of Alcohol, Tobacco, Firearms and Explosives. He 

is a past president of the American Academy of Forensic Sciences, 

and in 2006 became chair of the Council of Scientific Society Presidents. 

He presently represents the Department of Justice as a board 

member on the American Society of Crime Laboratory Directors 

Laboratory Accreditation Board, serves on the editorial board of the 

Journal of Forensic Science, on the ethics committee of the AAFS 

and on the advisory council of the National Clearing House for 

Science, Technology, and the Law at Stetson University College of 

Law. He is a graduate of National Law Center at George Washington University. 
5 

Our next witness will be Mr. Peter Marone, director of the Virginia Department of Forensic Science and a Member of the Committee that developed the report. He is a member of the Forensic 

Science Education Accreditation Commission of the American Academy of Forensic Science and the National Academy of Sciences 

Committee on identifying the needs of the forensic science community. 

He is also chair of the Consortium of Forensic Science organizations. He has a bachelor’s degree and master’s degree in chemistry, 

each from the University of Pittsburgh, and I would like to particularly welcome him, because he is representing the Commonwealth 

of Virginia, which has a great reputation in forensic science, particularly in the development of DNA. 

So I want to give you a personal welcome, Mr. Marone. 

Next witness is John Hicks who is director of Northeast Regional 

Forensic Institute at the University of Albany, State University of 

New York, which provides specialized workforce development training and educational services for forensic laboratory personnel. 

He is the former director of the Office of Forensic Sciences, New 

York State Division of Criminal Justice Services, deputy director of 

the Alabama Department of Forensic Sciences, and assistant director in charge of the FBI laboratory. He holds a bachelor’s degree 

in chemistry from Arkansas State University, master’s degree in 

public administration from the University of Southern California. 

Our final witness is Peter Neufeld, cofounder and codirector of 

the Innocence Project at the Benjamin Cardozo School of Law. The 

Innocence Project is directly responsible for the release of hundreds 

of people who were wrongfully convicted, who were factually innocent of the charges, some of which were actually sentenced to 

death. 

Mr. Neufeld’s work has therefore shaped the course of case law 

across the country and helped to lead another influential study— 

and he helped to lead another influential study by the National 

Academy of Sciences on Forensic DNA testing as well as important 

state and Federal legislation settings standards for the use of DNA 

testing. He has a bachelor’s degree from the University of Wisconsin and his law degree from New York University School of 

Law. 

I would like to welcome all of our witnesses for joining us. Their 

written statements will be made a part of the record in their entirety, but I would ask that you summarize your testimony in 5 

minutes or less, and to help stay within that time, there is a timing 

device before you, which will start with green, when a minute is 

left, it will go to yellow, and when the 5 minutes are up, it will 

turn to red. 

Mr. Melson? 

TESTIMONY OF KENNETH E. MELSON, ACTING DIRECTOR BUREAU OF ALCOHOL, TOBACCO, FIREAMS AND EXPLOSIVES, 

FORMER DIRECTOR, EXECUTIVE OFFICE FOR THE UNITED 

STATES ATTORNEYS, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC 

Mr. MELSON. Thank you very much. Good afternoon, Chairman 

Scott and Ranking Member Gohmert. Thank you for the oppor-
6 

tunity to present the views of the Department of Justice on the 

NRC report. 

DOJ considers the report to be a helpful addition to the public 

discourse on the state of the forensic science community. It recommends many of the same useful steps to strengthen forensic 

science that the 1999 and the 2004 Department of Justice reports 

recommended. 

While the NRC recommendations are not entirely new, the Department certainly agrees with virtually all of them. The forensic 

community has been and continues to address most of the recommendations in the report. Laboratory accreditation programs 

under ISO 17025 standards are in place. 

Scientific working groups are establishing standards and protocols. A uniform code of ethics for accredited laboratories have been 

adopted. NIJ grant solicitations for validation research have been 

issued. And experts in the field have already begun to conduct research on such topics as context and confirmation bias. In fact, yesterday I was pleased to get in the mail my copy of the Journal of 

Forensic Sciences, which is one of the world’s foremost peer-reviewed forensic journals. 

And there was an article in there on just that type of bias, and 

it was funded by a grant. So the work is ongoing, but more needs 

to be done. 

Although one charge the NRC by Congress was to assess the 

present and future needs of the forensic science community to include state and local crime labs, medical examiners and coroners, 

the report did not attempt to create a so-called gap analysis or 

needs assessment with funding requirements. 

The cost of developing and implementing the report’s recommendations and achieving significant capacity building are important and urgent questions. For the first time, a President’s proposed budget includes $35 million for the Paul Coverdell Forensic 

Science Improvement grant in anticipation of such an assessment. 

As the President’s leadership in this regard reflects, the Federal 

Government has an important role to play in support of our criminal justice stakeholders and constituents, and the Department of 

Justice has already focused on that effort. 

We have been consulting with our Federal laboratory directors 

across the government on ways to harness the full power of the 

Federal experience and expertise to assist these ongoing efforts. 

We have met with forensic science groups to listen to their concerns and ideas, discussed the issues with groups like ISAP and 

crime lab directors at the Crime Laboratory Management Symposium sponsored by the FBI, and we have participated in conferences throughout the U.S. since the report was published. 

The Department intends to continue to work with the FBI-sponsored scientific working groups, also known as SWGs to create consensus standards and guidelines for testing protocols while significant advances have been made in the accreditation programs regarding report writing and terminology, we will continue to work 

with the non-profit internationally recognized accreditation programs like AFSCA Lab to enhance the reporting guidelines and 

consistent use of terminology. 
7 

And as I have already mentioned, the National Institute of Justice has issued grant solicitations for validation studies and is arranging for community input on a variety of forensic science issues. 

And NIJ is also working with NIFT on AFIS interoperability 

issues, which is one of the recommendations in the report and the 

expert working group on human factors on latent print analysis 

project, all of which address the issues that were raised in the report. 

And, of course, as always, we look forward to working with Congress to develop and refine a comprehensive approach including 

necessary executive branch action and legislation to address serious issues raised by the NRC report. There are two recommendations, however, that the Department does not, at this time, support. One is the creation of the National Institute of Forensic 

Sciences, of NIFS, to oversee the Nation’s entire forensic science 

community, and the removal of all forensic labs from administrative control of law enforcement agencies or prosecutors. 

Since my time is almost up, I hope I will have the opportunity 

to comment on those two recommendations during the question and 

answer period. Thank you. 

[The prepared statement of Mr. Melson follows:] 
8 

PREPARED STATEMENT OF KENNETH E. MELSON
9 
10 
11 
12 
13 
14 
15 

Mr. SCOTT. Thank you. 

Mr. Marone? 

TESTIMONY OF PETER M. MARONE, DIRECTOR, VIRGINIA 

DEPARTMENT OF FORENSIC SCIENCE, RICHMOND, VA 

Mr. MARONE. Good afternoon, Mr. Chairman, Ranking Member 

Gohmert, Congressman Weiner. 
16 

My testimony today—— 

Mr. SCOTT. Is your mic on? 

Mr. MARONE. No. 

Mr. SCOTT. Thank you. 

Mr. MARONE. I would like to simplify the 250-page report, if you 

will, into the scientific and technical challenges that must be met 

in order for the forensic science community in the United States to 

operate to its full potential. 

Specifically, I will discuss these challenges in the four categories 

of resources, and it should be resources, resources, resources, but 

resources, research, standardization, and education. These are the 

primary challenges for our community at this time. The report 

found that some of the work has already begun by many of the forensic scientists but that additional efforts and coordination are 

needed to carry it through. 

To make this effective, however, an annual assessment—this is 

one thing the report didn’t do—an annual assessment or, if you 

will, a requirements analysis, need to be done to set forth a valid 

national strategy. 

The first element of the charge of the committee while not specifically addressed in the form of a recommendation was very clearly put in the report, ‘‘For the state and local laboratories, there has 

been a lack of resources—money, staffing, training, and equipment—necessary to promote and maintain strong forensic science 

laboratory systems. The state and local crime labs as well as the 

medical examiner community have not been receiving the support 

they need, but the case loads have been increasing exponentially.’’ 

If we continue to—and that is the end of the quote—if we continue to focus solely on backlog reduction rather than on actual capacity enhancement and methodology advancement, the capacity of 

the labs that process the work will be continuing to keep getting 

backlogs back again. 

I want to make it clear, Mr. Chairman, that this is the root of 

many of our issues, and as a laboratory director, I am asking Congress to please establish funding in an adequate level for all disciplines, not just a single discipline, but on the other hand not in 

place of that discipline. In other words, we are not asking to take 

the DNA money away, we are looking to spread the bigger pie 

around. 

Congress has been consistently putting some funding for other 

disciplines, but it falls short of what is necessary. The amount of 

funding to accomplish this is probably the most difficult to estimate, since we really don’t have an accurate number of forensic 

service providers, and that may be a term that you haven’t heard 

before. You are familiar with forensic laboratories. Forensic service 

providers would include the crime scene units or the ID units, fingerprint sections in police departments. 

And the instrumentation and facilities involved are equally difficult to ascertain their conditions and needs. There are over 17,000 

police and sheriff departments, and we have roughly estimated 

there may be 11,000 forensic service providers—units, not people— 

in those departments in addition to the 400 plus publicly funded 

laboratories across the country. 
17 

All of these numbers need to be verified and understood. Under 

the category of research, the report determined that some of the forensic science disciplines need further research to provide 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. 

However, as Congressman Gohmert mentioned, not validated by 

one man or another does not mean it is of no value. The report 

clearly states that there is a value in many of the disciplines addressed. We need studies, for instance, that look at a large population of fingerprints or tool marks so as to quantify how many 

sources might share similar features. 

In addition to investigating the limits of the techniques themselves, the research also is needed on issues of context effect and 

examiner bias. In the realm of standardization, the report raises 

concerns about the lack of mandatory requirements for professional 

certification and for laboratory accreditation and also the variability in ways that forensic science results are reported in courts. 

I think it is critical to first understand that most of the forensic 

science laboratories in the community have already begun to move 

in the direction of accreditation. In fact, in the recently published 

census of publicly funded crime labs, which was from 2005, just recently published, it stated then that 82 percent of the public laboratories were accredited. 

That number is much higher now, but more can be done. There 

are a significant number of forensic service providers—those are 

the police ID units—which need to be notified of the existence of 

accreditation programs, which are appropriate for their functions. 

Few realize that existing ISO/IEC 17025, that is the international accreditation, is actually applicable for their use. The community fully supports mandatory accreditation, but we do not believe one needs to reinvent the wheel. The report did not intend to 

establish new accreditation or certification programs but to bolster 

the existing structure. 

Lastly, the NRC report stresses a need for establishing a robust 

educational component. The Federal Government needs to support 

such a program and the institutions applying to the program for 

accreditation. The example for accreditation for forensic education 

programs has already been mentioned, FEPAC. It has been quite 

successful in raising—in just the 5 years it has been in place—in 

raising the scientific rigor of the program for which it has been— 

the programs it has been accredited. 

The primary recommendation of the report, Mr. Melson has already mentioned, so I will skip over that, and I would like to thank 

the opportunity to speak to the Committee and answer any of your 

questions. 

[The prepared statement of Mr. Marone follows:] 
18 

PREPARED STATEMENT OF PETER M. MARONE
19 
20 
21 
22 
23 
24 
25 

Mr. SCOTT. Thank you very much. 

We have been joined by the gentleman from Texas, Judge Poe. 
26 

Mr. Hicks? 

TESTIMONY OF JOHN W. HICKS, DIRECTOR, NORTHEAST REGIONAL FORENSIC INSTITUTE, THE UNIVERSITY AT ALBANY, STATE UNIVERSITY OF NEW YORK, ALBANY, NY 

Mr. HICKS. Thank you, Mr. Chairman. It is a pleasure to be here 

with you today, and I thank you for this opportunity. I must say, 

first, I share many of the views that have already been expressed 

by the previous panelists here. 

I also should say that I also do not support the notion that there 

should be a separate independent agency developed as was put 

forth in the National Academy, but on the other hand, there does 

need to be close coordination amongst the Federal agencies that are 

involved in forensic’s development and we can look to the DNA experience to kind of see how that has successfully been applied to 

bring in the new DNA technology as, again, was acknowledged in 

the report. 

The three agencies that played key roles—there are many agencies involved and many academic institutions and research centers 

that were involved throughout the country—throughout the world 

for that matter—with DNA. 

But the three primary agencies were the FBI, the National Institute of Justice, and the National Institute of Standards and Technology. Each of those agencies, I think, bring certain elements that 

can help in addressing many of the issues that were raised in the 

National Academy report. 

With respect to the—what I think is probably the primary recommendation—the most significant recommendations of the report, 

and that is to address the—there were recommendations number 

one, three, and ten in the report, but they speak to providing funding that would be directed to promoting scholarly, competitive peerreviewed research, which addresses issues of accuracy, reliability 

and validity in forensic science disciplines. 

As Mr. Marone has already said, that is an area, clearly, of need 

and application, particularly in areas which have been around for 

many years, and from my perspective, I think we can have confidence in many of these pattern-based recognition techniques if 

they are applied by people that are properly trained and they have 

experience in the field, and they operate in a way that accreditation programs call for, and that is a quality management system 

that has appropriate review processes in place to verify the systems. 

I think we can have confidence in the systems. That is not to say 

that mistakes can’t be made and that there is definitely a need to 

know more about those technologies and applications and do some 

of the kind of developmental research work that really is within 

the core competencies of the National Institutes of Standards and 

Technology. 

I think they should play a lead role in helping to apply their expertise in developing some of this kind of data that has been called 

for. I think just to sum up my perspective. I think I have already 

said it, but that is that the most efficient, effective way to quickly 

try to address the kinds of recommendations and issues that came 

up in the National Academy of Science report is to assure that you 
27 

have a high degree of coordination among these agencies, that 

there is a lot of input from the forensic community at large. 

Of course with the DNA experience, one of the key elements to 

help coordinate the development was what was called the technical 

working group on DNA analysis methods. Now it has been sort of 

changed to the scientific working group, and based in part on that 

experience, the community has adopted scientific working groups in 

virtually all disciplines, and their products can be seen in different 

kinds of publications where they have been working toward articulating standards and coming to more uniformity in the practice nationally. 

So, in my judgment, that kind of a model might be a very useful 

model to follow with respect to the other recommendations in the 

report. 

Thank you, sir. 

[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. 

First, I should say 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 costly to establish and unnecessarily duplicative of well-established programs and activities now 

found within several federal agencies. I do agree with the underlying premise of this 

proposal that there needs to be a well coordinated effort among these agencies and 

within the national forensic community to focus attention on issues related to the 

quality and delivery of forensic services by publicly funded agencies. 

The essential recommendations found in the NAS report may be grouped 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 the resource needs within the forensic 

community 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. 

Priority attention should be directed to elements found in NAS recommendations 

numbered 1, 3 and 10. Specifically, under NAS 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 those automation technologies which can be applied to reduce evidence 

processing times. 

As called for under the NAS recommendation 10, funding should be made available for distribution to educational institutions and other appropriate organizations 

to encourage the development, improvement, and delivery 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 
28 

the results of forensic analyses within the criminal justice system. Such groups 

might include those involved in the medical treatment of victims of crimes. 

It should be noted that with regard to the forensic use of DNA technology, the 

Congress has already authorized a series of highly relevant and critically needed 

programs that provide the resources to help meet the unprecedented demand for 

DNA testing services. These programs are administered by the National Institute 

of Justice (NIJ) 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 examiner 

services, legislation was enacted in 2000 which created the Paul Coverdell Forensic 

Sciences 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 highly effective in bringing needed improvements to the 

22 state and local forensic laboratories across the State. 

It is strongly recommended that federal support be continued for these programs 

which have already been demonstrated to address critical needs identified in the 

NAS report. There is a need to expand or establish other programs which can focus 

greater attention on the development and validation of methodologies used in forensic disciplines. In addition, funding is needed to support a range of in-service and 

other specialized training initiatives to maintain and improve the technical skills of 

forensic laboratory personnel. 

In the NAS report, as in the Senate report that ordered the NAS study, forensic 

DNA technology was set apart from other forensic disciplines with the recognition 

of the robustness of the underlying research and 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—academic researchers and forensic science practitioners—to identify, 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. This 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 which has been proven so helpful in 

resolving crimes which might otherwise have gone unsolved. 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 as used in the examination of fingerprints; firearms and fired ammunition components; tool marks; and handwriting. For these 

and other ‘‘non-DNA’’ forensic techniques that are widely 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 kinds of activities are among the core competencies found in NIST and supported by other federal agencies such as NIJ and 

the FBI. 

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 as well 
29 

as with industry and academia. For example, in close coordination with the FBI and 

NIJ, 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 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. 

In my view, the most efficient, effective, and economical way to move the forensic 

community forward, especially in those disciplines 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. The DNA experience 

provides a useful model and a framework upon which to build. The National Advisory Board for Forensic Sciences might include federal, state and local 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). 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. 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 engage the academic research 

community in this effort and 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. Again, the forensic DNA 

experience provides a helpful and proven model in this regard. 

Mr. SCOTT. Mr. Neufeld? 

TESTIMONY OF PETER NEUFELD, CO-DIRECTOR, 

THE INNOCENCE PROJECT, NEW YORK, NY 

Mr. NEUFELD. Good afternoon, Mr. Chairman. Good afternoon, 

Ranking Member, Mr. Gohmert. 

On September 18 of 1985, a 16-year-old girl was abducted in 

Utica, New York and eventually sexually assaulted and murdered. 

Initially, one of the people who was suspected of that crime was a 

gentleman named Steven Barnes, only because he owned a pickup 

truck which fit the description of a truck seen driving along the 

road at about the time that the young gal was abducted. 

He wasn’t arrested then, because they didn’t have enough evidence. But during the next 2 years, they built a forensic case 

against Mr. Barnes. He was ultimately charged, convicted, sentenced to life in prison and spent 20 years in prison before, just a 

couple of months ago, forensic DNA testing on the semen recovered 

from the victim and on the clothing recovered from the victim exonerated Steven Barnes. 
30 

I would like to introduce Mr. Barnes to the Committee. Would 

you stand up 1 second. As Mr. Barnes was exonerated in the last 

couple of months after 20 years in prison for a crime he did not 

commit. 

The reason I wanted to mention Mr. Barnes’ case to you is because a very professional criminalist forensic scientist working at 

a first rate forensic science laboratory—the Connecticut State 

Crime Laboratory—provided three pieces of very powerful evidence 

that were used to convict him. 

First, she testified that the soil under the truck that Mr. Barnes 

was driving was very consistent with the soil found on the dirt 

road where the victim was found. Two, that hairs found inside Steven’s vehicle were consistent with hairs belonging to the victim. Indeed, that they were microscopic matches to those hairs. 

And, three, that a layer of dust found inside the van left an impression of blue jeans and of blue jean stitching, and that the victim wore similar blue jeans, and that she looked at other manufacturers of blue jeans—five or six of them—and didn’t see that particular pattern and, therefore, these were very unusual patterns. 

Now, this was somebody who probably came from a laboratory 

that would no doubt be accredited, a person who is extremely professional and would be certified. However, the underlying disciplines that she was describing had never been adequately validated. 

And when I say ‘‘adequately validated,’’ it doesn’t mean that 

somebody can’t examine soil or somebody can’t look at hairs under 

a microscope or can’t look at a pair of blue jeans, but what it 

means is—and this is one of the things that the National Academy 

of Science talked about so vociferously—is that well, what does it 

mean to say that something is similar or matches? Is it one in 10, 

one in a million, or one in a billion? 

And what you realize is—and what the National Academy realized is that the hypothesis suggesting that a certain piece of evidence left at a crime scene had as its source a particular defendant 

or may have come from that defendant is the type of the thing that 

hasn’t been adequately validated. And that is one of the main problems here. 

And that is why the National Academy of Science found—not me, 

I don’t know science. I am a lawyer with a project in New York, 

but what the scientists found is that with the exception of nuclear 

DNA analysis, no forensic method has been rigorously shown to 

have the capacity to consistently and with the high degree of certainty demonstrate a connection between evidence and a specific 

individual or source. 

That is their finding, not ours. And the problem is that you now 

want to figure out how to test that hypothesis to see whether or 

not they can be validly used for that specific purpose or whether 

they can’t be. And no doubt if we do studies like that some will 

pass, some might not. 

But, you know, what is interesting is that in other institutions, 

we don’t do that kind of testing after the horse is out of the barn. 

We don’t decide after we first have the FDA look at a new piece 

of medicine or a medical device and decide whether it has been 

adequately validated before we unleash it on the consumer public. 
31 

1The Innocence Project’s analysis regarding wrongful convictions involving unvalidated or improper forensic science that were later overturned through DNA testing is attached to this testimony. 

We don’t have the pharmaceutical companies decide how the National Institute of Health should give out grant money for basic research and applied research. We don’t do that for other kinds of applied science. Why should we do it in forensic science? We 

shouldn’t. 

We should have, number one, an entity that looks at these things 

before they are used, not after. One of the problems that other 

speakers have recognized here is that some of these systemic problems were known for a long time, yet no one at NIJ, no one at the 

FBI laboratory did anything affirmatively about many of these systemic problems and testing that basic hypothesis for 5 or 10 or 

more years. 

Now they want to do something because the NAS report is out, 

but the other thing, which is very important for us to learn in 

terms of a lesson from what we do with clinical laboratories in 

medicine, is we don’t have the users themselves decide when a 

product is ready. We have independent people do that. 

What is being suggested by some other people at this point in 

time is that it is okay to have the leaders of the forensic laboratories or the leaders of these different forensic disciplines decide 

when a device has been adequately validated. 

We have never felt that is an adequate assurance when matters 

of public health are at stake. I don’t see any reason why we should 

have less rigor when matters of criminal justice are at stake. 

Thank you. 

[The prepared statement of Mr. Neufeld follows:] 

PREPARED STATEMENT OF PETER NEUFELD

Thank you Chairman Scott, Ranking Member Gohmert, 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. I am 

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. 

The development of DNA testing has allowed the Innocence Project to help exonerate 238 factually innocent Americans—17 of whom were on death row awaiting 

execution. 

However, fewer than 10 percent of cases that come before the courts involve biological evidence that could be subjected to DNA testing; DNA testing cannot help 

us identify the truth in the remaining 90 percent of cases, many of which involve 

some form of forensic evidence. Thus the need to be as sure as possible about the 

probative value of non-DNA forensic evidence is critical to the integrity of our criminal justice system. 

This is particularly true given the fact that our work with DNA exonerations has 

shown us the shortcomings of non-DNA forensics. Our cases have allowed us the 

opportunity to examine what went wrong, and that research has yielded a stunning 

statistic: police and prosecutors’ reliance on un-validated and/or improper forensics 

was the second-greatest contributing factor to those wrongful convictions.1 Those 

cases show what the NAS report documents—that the lack of science underpinning 

non-DNA forensics has tremendous potential to mislead the criminal justice system 

away from the real perpetrators of crime, and that the system must use science to 
32 

address these scientific shortcomings in order to improve the reliability of forensic 

evidence, and thus our criminal investigations, prosecutions and convictions. 

The Innocence Project strongly believes that the NAS report provided a critical 

wakeup call 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. 

While the findings of this expert scientific panel was a source of alarm about the 

criminal justice system’s forensic practices, we must recognize that it provides the 

system with a tremendous opportunity. Namely, its recommendations will allow us 

to increase the accuracy of criminal investigations; strengthen criminal prosecutions; bring justice to victims; conserve resources so law enforcement can dedicate 

them toward finding true perpetrators; and protect the innocent from wrongful conviction. The Innocence Project therefore strongly endorses the report’s recommendations; the findings and recommendations of this report are critical to the improvement of our criminal justice system. 

The Innocence Project strongly supports the Academy’s central recommendation: 

to ensure the integrity of the forensic evidence used to guide the criminal justice 

system, the federal government must create a National Institute of Forensic 

Sciences. Many forensic techniques—such as hair microscopy, bite mark comparisons, fingerprints, firearm tool mark analysis and shoe print comparisons—have 

never been subjected to rigorous scientific evaluation. Yet as I speak, 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. Likewise, forensics techniques that have been properly validated—such as serology, commonly known as 

blood typing—are sometimes improperly conducted or inaccurately conveyed in trial 

testimony. The overarching problem has been that all too frequently, these forensic 

disciplines have been improperly relied upon to connect our innocent clients to crime 

scene evidence. 

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 NAS 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. 

An example of this is the case of Steve Barnes. Barnes was convicted in 1989, 

at the age of 23, of the rape and murder of a high school classmate he did not commit. Three types of unvalidated forensic science were used in the trial to convict 

him. Eyewitness testimony at his trial was shaky and the lack of other strong evidence put particular weight on the forensic evidence involved in the case. That evidence included testimony that soil on Barnes’ truck tires was similar to soil at the 

crime scene, that an imprint in the dirt on the surface of Barnes’ truck matched 

the fabric pattern on a particular brand of jeans the victim wore when she was 

killed, and that two hairs collected from Barnes’ truck were microscopically similar 

to the victim’s hairs and dissimilar from Barnes’ hair. 

The soil, fabric, and hair analysis are examples of an area of forensics called ‘‘pattern evidence’’ techniques. These techniques take an item found at the crime scene 

and determine if it is a match with a sample from the suspect to link them to the 

scene. However, microscopic hair analysis, soil comparison and fabric print analysis 

have not been tested to determine their scientific reliability or validity; as a result, 

it is impossible to know how many other soil samples might be similar to soil from 

the crime scene or the likelihood that other brands of jeans can make prints of a 

similar pattern, and there is not adequate empirical data on the frequency of various class characteristics in human hair. Without an existing database or set of 

‘‘knowns,’’ a proper statistical inference of likelihood cannot be made. 

However, neither the defense counsel, judge, nor jury were familiar with these underlying facts, and as a result this misleading and inaccurate forensic evidence was 

accepted as scientific fact. In 2007, the Innocence Project secured the latest DNA 

testing, which yielded conclusive results on sperm cells from the victim’s body and 

clothing—none of which matched Barnes. After serving near 20 years in prison for 

a murder and rape he always said he didn’t commit, Barnes was freed on November 

25, 2008. His exoneration became official on January 9, 2009, when prosecutors announced that they were dropping all charges. Shortly after his exoneration he celebrated his 43rd birthday—the first one at home in two decades. 
33 

2Strengthening 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. 

3–20. 3 Ibid., p S–3. 

According to the NAS report, ‘‘[f]or a variety of reasons—including the rules governing the admissibility of forensic evidence, the applicable standards governing appellate review of trial court decisions, the limitations of the adversary process, and 

the common lack of scientific expertise among judges and lawyers who must try to 

comprehend and evaluate forensic evidence—the legal system is ill-equipped to correct the problems of the forensic science community. In short, judicial review, by 

itself, is not the answer.’’ 2

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. 

The vast majority of forensic employees are hardworking, ethical and responsible. 

They use the best scientific techniques available to them to deliver objective, solid 

information—regardless of whether the science favors the defendant, supports the 

prosecution or is inconclusive. In most cases, the science—rather than the scientist—is inadequate. In other cases, forensic analysts make mistakes that could result from lack of training, poor support or insufficient resources to meet an evergrowing demand. In still other cases, forensic analysts’ testimony goes further than 

the science allows because the techniques that have been practiced for years have 

not been subjected to the rigors of scientific research. Our review of the nation’s 

DNA exonerations showed that 72 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. They are accepted and repeated as fact, leaving juries 

with the impression that the evidence is more scientific than it is. According to the 

NAS report, the shortcomings in education, training, certification, and standards for 

testing and testifying that contributed to wrongful convictions in those cases threaten the integrity of forensic results.3

Some may argue that mandatory accreditation and certification would be a sufficient oversight mechanism for the forensic community. While this would, of course, 

be superior to no oversight structure at all, the NAS Report makes clear that this 

alone would fail to solve some of the most pressing deficiencies in forensic evidence. 

Specifically, mandatory accreditation and certification alone would fail to address 

the lack of validity and reliability the NAS identified in numerous forensic practices. 

Voluntary accreditation of laboratories and voluntary certification of analysts 

have, of course, been part of the forensic system for years. However, many of the 

accredited labs and certified practitioners have, nevertheless, been reporting results 

that the NAS concludes—and DNA exonerations have confirmed—have never been 

scientifically validated for their accuracy. Accreditation only provides assurance that 

protocols for laboratory operations, evidence handling, personnel management, review of lab reports, and monitoring of testimony takes place; and certification only 

monitors education, experience, training, and completion of a skills-based test. Neither practices are determinative of the accuracy of the forensic product. 

Without the basic and applied research and comprehensive assessment and standardization needed to validate the various forensic techniques and assays, mandatory 

accreditation and certification alone would do little to address the fundamental scientific shortcoming which is of such serious concern to the NAS. If the underlying 

forensic discipline adopted by the lab and used by the analyst has not been scientifically validated nor its reliability assessed, the final product proffered to prosecutors 

and court will remain in question. 

However, we cannot expect the courts to sort through or overcome the patchwork 

of standards, or to assess for themselves the reliability of a device or technique, no 

matter how widely used. Judges nor juries cannot be expected to understand the 

accuracy of an expert witness’s testimony and whether the science they claim to represent has been tested and validated by the best scientific practices. Because of the 

fragmentation of the criminal justice system, and because of the lack of a sound scientific foundation for many forensic technologies and assays, 50 states may be operating under 50 definitions of ‘‘science’’—and therefore 50 standards of justice. While 

states’ autonomy must be respected, it is entirely appropriate for the federal government to establish the scientific standards that foster justice when any court is considering forensic evidence. 

For our justice system to work properly, standards must be developed and quality 

must be assured as part of the formal system of vetting the scientific evidence we 

allow in the courtroom. Before the evidence is presented to the courts—or even be-
34 

4 Ibid., p. S–11 

5 Ibid., p. 5–5. 

fore police seek to consider the probative value of such testing for determining the 

course of their investigations—the application of the scientific method to each forensic assay or technology, as well as parameters for report writing and proper testimony, must be required. Since the police officers, lawyers and judges who are 

tasked to adjudicate these cases are very rarely forensic specialists themselves, 

properly understanding forensic scientific evidence presents a challenge that demands a strong, unified, federal response before scientific evidence reaches the 

courtroom. This is particularly important because the overwhelming majority of 

cases are resolved with plea bargains, necessitating defense lawyers and prosecutors—with no judicial involvement—to interpret and rely on the reports’ conclusions 

as a basis for making an important decision affecting the liberty of life of the accused. 

Another challenge to the quality of forensic evidence is information dissemination. 

When information about new technologies and technique surfaces, there are few formal channels for sharing that information with practitioners in the field. As a result, many practitioners continue to practice unaware of the latest critical advances 

and news that can inform their work, a problem that is exacerbated because of the 

lack of resources for continuing education and training to adapt to those advances, 

when they are known A formal entity is needed to track the latest advances, and 

to serve as a centralized repository and to validate the newest technological advances, and ideally to promote innovative research as well. This is also an opportunity to harness the federal government’s resources to promote and subsidize continuing education and training. 

The NAS report states that ‘‘The forensic science enterprise also is hindered by 

its extreme disaggregation—marked by multiple types of practitioners with different 

levels of education and training and different professional cultures and standards 

for performance and a reliance on apprentice-type training and a guild-like structure of disciplines . . .’’ 4 What is called for is a standardized approach to education, 

training, proficiency testing, and ultimately certification of practitioners to ensure 

a consistent and high standard is met nationwide. Likewise, enforceable parameters 

for interpretation of data, report writing, and courtroom testimony must be developed. 

Because of both a lack of resources and the current fragmented allocation of funding streams, most crime labs are focused on eradicating backlogs in addition to new 

casework. In addition, current funding is not adequate to allow necessary research 

to be conducted to improve the various disciplines. This both delays justice and 

hinders the ability of a practitioner to conduct his or her work as well as possible. 

It is clear that a comprehensive assessment of the resource needs of the forensic 

science community—and those who employ forensic evidence—must be conducted to 

ensure that funding is allocated appropriately. This will also allow us to fully grasp 

the magnitude of the problem and work to make sure that suitable funds are appropriated to address the work that needs to be done. 

And of course, the variety of assays, devices, and technologies must be closely examined and subjected to the scientific method. The Innocence Project can cite well 

over a hundred cases that involved faulty forensics, from the nation’s 239 post-conviction DNA exonerations alone. And the NAS report is very clear: ‘‘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.’’ 5

Non-DNA forensic assays have not been scientifically validated, and there is no formal apparatus in place to do so for developing forensic technology. 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. 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 FDA ever scrutinized the forensic devices and assays, nor were crime laboratories subject to mandatory accreditation and forensic service practitioners subject to certification. Only the federal government has the resources and the power to undertake such a challenge. 

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 
35 

6 Ibid., p. 2–19. 

Report is the first step toward fully establishing and acting 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. 

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. Given the clear and comprehensive message delivered by the NAS on this subject, further delay would be unconscionable. 

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. 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 methodologies and must be well connected with the Nation’s scientific research base in order 

to affect meaningful advances in forensic science practices.’’ 6

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. 

The investment of time, effort and resources necessary to improve forensic 

sciences will pay tremendous dividends in terms of time, effort and resources not 

wasted by faulty data. It will make criminal investigations, prosecutions and convictions more accurate, and our public more safe—and perhaps most importantly, justice more assured. It will allow us to eliminate backlogs, allowing properly-funded 

crime labs to turn around evidence in time for a quick trial. There will be no question about what evidence is admissible: all forensic assays, devices, and technologies 

will have been validated, reliability studies will have been done, and reports will 

be properly documented. Clear guidelines for testimony will be set which will prevent evidence from being manipulated or mischaracterized to benefit the defense or 

prosecution. Research on developing technologies will not only improve forensic 

technology, but will uncover ways to innovate and improve upon current technology 

and devices. 

Our work has shown the catastrophic consequences of such a lack of research, 

standards, and oversight. Science-based forensic standards and oversight will increase the accuracy of criminal investigations, strengthen criminal prosecutions, 
36 

7 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. 

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.7

We have an unprecedented opportunity to significantly improve the administration of criminal justice in the United States. By strengthening forensic science 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, just as the development of DNA technologies and their 

applications has done. With your support, we will minimize the possibility that tragedies like those endured by the nation’s 238 (and counting) exonerees and their families will be needlessly repeated, and we will significantly enhance the quality of justice in the United States. 
37 

ATTACHMENT 
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Mr. SCOTT. Thank you very much. We will now recognize ourselves observing the 5-minute rule. And I will begin by recognizing 

the gentleman from New York who has been relentless in his advocacy for getting overdue and rape kits tested in New York. I mean, 
51 

we have an embarrassing backlog, and he has just been relentless 

trying to get funding for that particular science. 

I will recognize the gentleman from New York, Mr. Weiner. 

Mr. WEINER. Thank you, Mr. Chairman, and I appreciate your 

continuing this conversation going. 

Peter, let me pick up on what you just finished with. The difference between a pharmaceutical drug or a process is that no one 

has to go into a court of law ask a judge, do you think this—I am 

a kosher expert, do you think that this is—you know, no one is 

going to stand there and present that evidence without having 

someone on the other side. 

It strikes me that the report identified some problems with collection, some problems with the standards for testing, and now you 

are talking about problems with how you interpret any information 

that is presented before a jury. 

Now, in the tragic case of your client—and I welcome him here 

today—wasn’t this just a case though that you had a jury was too 

willing and a judge that were too willing to let into evidence as 

proof of a hypothesis stuff that was really just stuff that you— 

wasn’t really up to standard, that even if we solved the other problems of standards, that you are still going to have someone saying, 

aha, I found a jean print in dust, and going to a jury and said here 

is the picture, and I think that this is the jean of whatever. 

So why don’t you take a stab at that. 

Mr. NEUFELD. Okay. First of all, you are not going to have that 

problem for two reasons: one is, it is one thing for someone to say 

that this jean print is consistent with or matches whatever, I don’t 

even have a problem with that. The problem is that the jury has 

to be told is it a rare jean or a common blue jean, okay? 

If the jury doesn’t know that, they don’t know how to interpret 

the evidence. When an expert very often says that something is 

consistent with or similar, there is a whole series of psychological 

studies which prove that jurists take that to mean it is his, it is 

a match, it is unique, it is individualized. 

The problem is that that hypothesis—you don’t know what it is. 

Is it one in 10 or one in 1,000? That has to be proved scientifically. 

That is what the NAS report says. Before the evidence comes into 

court. 

The other difference that you mentioned between pharmaceuticals and the FDA and NIH and the criminal justice system is 

a suggestion that there is a judge who is a gatekeeper. And, yes, 

there are several judges who are good gatekeepers, and there are 

even a few lawyers who know when to challenge something, be 

they prosecutors or defense attorneys, but I did a peer-reviewed 

published study showing the way that Daubert was administered 

over the first 12 years of existence. 

And in the civil context, it was administered very rigorously. In 

the criminal context, it wasn’t administered at all to speak of. So 

90 percent of the time, the evidence would be kept out in a civil 

case and only 2 or 3 percent of the time would it be kept out in 

a criminal case. There was no either meaningful challenge. There 

was no meaningful cross examination. Most the judges, frankly, 

were interested in other kinds of legal issues as opposed to scientific issues. 
52 

After all, they didn’t go to medical school, they went to law 

school and then went onto become judges, and I mean that in all 

fairness, sir, that is just a natural tendency. But the data speaks 

for itself. There haven’t been any kind of meaningful scrutiny, and 

that is why the NAS said in its report that it is too late if you wait 

until it gets to court. 

Mr. WEINER. Right. 

Mr. NEUFELD. The idea is to try and fix a lot of this upstream 

before it gets to court. The judges can still be gatekeepers, but at 

least they will have much more guidance. 

Mr. WEINER. I appreciate that. Can I change subjects and ask 

the rest of the panel this question? You know, it is true that we 

have made strides on dealing with the backlog, although there are 

problems that have emerged. 

But in the testimony that I heard here today that now we have 

got other types of problems that are building up. Are we reaching 

a place though that the process of taking collected DNA evidence, 

presenting it into a form that attorneys like Mr. Neufeld can use 

it—are we reaching a place where through advance of technology 

or economies of size that that is getting more foolproof. 

It is getting easier now to take data and to take this information 

is it more likely that you are going to be able to reduce the costs, 

make it simpler to process the evidence, and then our problem 

moves elsewhere in the system. I mean, is it getting more foolproof, 

kind of like developing film a hundred years ago turned into a 

Fotomat 50 years ago, turned into a digital one-click camera today. 

Are we reaching that point with DNA evidence collection? 

Mr. MARONE. I would have to say that is simply putting it, yes. 

But the bottom line is that a lot of the methods now are lending 

themselves quite more easily to automation and when you get into 

automation, obviously, you get an efficiency of scale, one. 

Two, it is less chances for manipulation errors with individuals, 

because you are working on a math scale, an automated scale with 

robotics, you can use smaller samples. So I would say yes to all 

those, but the caveat with that is, when you start looking at smaller and smaller samples and higher and higher sensitivity, you then 

have to worry about the consequences of unintended DNA that you 

are picking up—— 

Mr. WEINER. Contamination. 

Mr. MARONE. I hesitate to use contamination, because it may or 

may not be a contamination issue. For example, if you are looking 

at door lobs, you are now looking at everyone who touched a doorknob. Those kinds of issues. 

So, yes, we are getting better along those lines, but one must still 

have that caution to realize what it is that you are looking at. 

Mr. WEINER. Thank you. 

Thank you, Mr. Chairman. 

Mr. SCOTT. The gentleman’s time has expired. Thank you. 

The gentleman from Texas, Judge Gohmert. 

Mr. GOHMERT. Thank you, Mr. Chairman. Obviously, for Mr. 

Barnes to serve any time improperly is particularly egregious. I am 

curious, when did that case go to trial? 

Mr. NEUFELD. It went to trial 4 years after the incident, in 1989. 
53 

Mr. GOHMERT. 1989, okay. So that was before DNA evidence 

really came to the forefront. 

Mr. NEUFELD. It was before they had DNA testing. The problem, 

sir, from our perspective, and I think everybody on the panel would 

agree, is that DNA, which obviously has revolutionized the criminal 

justice system in a lot of ways, is unavailable as the truth test, if 

you will, in many cases. 

Mr. GOHMERT. Right. 

Mr. NEUFELD. So crime—— 

Mr. GOHMERT. It wasn’t in that case, though. 

Mr. NEUFELD. Right. 

Mr. GOHMERT. In the current day, it wouldn’t not even be an 

issue, and as far as the dust left behind an impression of blue 

jeans. I mean, if I am the gatekeeper on that case, somebody testifies to that, that tells me maybe we are looking for someone wearing blue jeans or we are looking for a 2-year-old wearing denim 

Osh Kosh overalls, you know. 

That is nothing. That evidence I am surprised that anybody 

would let that in. That is just way too vague as to be supported 

scientifically. I just can’t imagine that coming in. The soil under a 

truck? They don’t do an analysis and say it is exactly the soil or, 

I mean, those kind of things are kind of hard to believe that any 

kind of adequate gatekeeper would allow that stuff in. 

Obviously, a judge did, an appellate court didn’t see through it, 

and so Mr. Barnes served unnecessarily, but I am curious and liked 

to get the panel’s consensus here. You know, the study talks about 

pattern-based disciplines. Do any of you believe that fingerprints 

have inadequate scientific validation? I would like to know is there 

anybody that believes that pattern-based fingerprints have inadequate scientific validation? 

Mr. NEUFELD. In all fairness, sir, I don’t think necessarily that 

the four of us are the best qualified people to answer that question. 

I think what the National Academy of Science report said is that 

that is a scientific question, and—— 

Mr. GOHMERT. Okay, so your opinion is it is not appropriate for 

you to have an opinion, but I would like your opinions anyway. 

Mr. Hicks? 

Mr. HICKS. Now it is on. 

Mr. GOHMERT. Yes. 

Mr. HICKS. Okay. I do believe that fingerprint technology has an 

enormous amount of data behind it. I mean, we have established 

automated systems that are in use in every police department in 

the country. They are connected nationally. They are used internationally. They have been shown to be highly effective in distinguishing people. 

I think what may be lacking is having put some of that the information and experience there into a form and this sort of meets 

what is being defined now as these rigorous scientific studies. I 

think there may be some validation-type studies that may be performed and published that would help to support—may provide 

new information about the limits or extent of fingerprinting, but 

my personal opinion is that there is—— 

Mr. GOHMERT. Adequate validation. 

Yes, Mr. Marone? 
54 

Mr. MARONE. Two things, actually. Let me, let me quote from the 

report itself. This is in chapter five, the chapter that dealt with the 

scientific disciplines. Historically, fiction ridge analysis has served 

as a valuable tool both to identify the guilty and exclude the innocent. 

Because of the amount of detail available in friction ridges, it 

seems plausible that a careful comparison of two impressions can 

accurately discern whether or not they had a common source. Although there is limited information about the accuracy and reliability of friction ridge analysis, claims that these analyses have 

zero error rates are not scientifically plausible, and I think that is 

the crux of the matter. 

Where DNA, because of its nature, has very discrete alleles, each 

one of those low—the alleles in each—have a particular probability 

that they show up in the population, and that lends itself very well 

to coming up with a nice number, a possibility of occurrence. 

With fingerprinting, there are a number of ridge details. What 

hasn’t occurred here is someone mapping those details and give a 

statistically supportable conclusion as to if I have X number of 

points of comparison, how strong is that? 

Mr. GOHMERT. Right. 

Mr. MARONE. And that is what, I think, is lacking there is not 

that you can’t do it. 

Mr. GOHMERT. Well, I don’t know that it is lacking. I used to 

hear that testimony. 

Mr. MARONE. Right. You can’t put a level—— 

Mr. GOHMERT. I used to hear that testimony. Some say seven 

points was enough, and we didn’t allow less than 10 points, and 

you had to be positive about those 10 points, and then we heard 

about the statistical analysis of what that did when you went from 

seven to 10 points. 

Mr. MARONE. Sure, and then two compound that issue, because 

again, where DNA has those alleles, think about circumstances 

where you don’t have 13 losa, you don’t have 26 alleles, the numbers reduce significantly. 

Mr. GOHMERT. Right. 

Mr. MARONE. If you have three or four or five, you can’t even 

search it unless you have 10. But fingerprinting, it is not like it is 

a nice clean print, may be smudged, may be smeared so all those 

other environmental aspects of it—— 

Mr. GOHMERT. They didn’t have enough points, they didn’t come 

in. 

Mr. MARONE. Exactly. But, I mean, that is—— 

Mr. GOHMERT. The jury never heard it. 

Mr. MARONE. That is where the argument is. 

Mr. GOHMERT. Yes. But if there were enough points, you don’t 

have a problem with that being scientifically validated? 

Mr. MARONE. I think after—— 

Mr. GOHMERT. As long as the jury understood—— 

Mr. MARONE. After all these studies are done, I have no doubt 

that the underlying science will be found to be valid. The application of it by an individual might be a different issue. 

Mr. GOHMERT. My time has expired, but if I could hear from Mr. 

Melson. 
55 

Mr. MELSON. Well, I think the science is applicable and probative 

for court when it is properly applied by a qualified individual. The 

problem is you can make a generalized statement, because you may 

have a very clear latent print to compare with the rolled print, 

then it is easy, probably nobody would object to that. 

But once you get to the smaller smudges, the partial latent 

prints, then it becomes much more difficult to make a comparison. 

Doesn’t mean it can’t be done, but that is where the research needs 

to be done. So all of these areas, even though there may be questions about them, and even though courts allow them into evidence, 

more research should be done on all the areas. 

Mr. GOHMERT. When you say courts allow them into evidence, 

what are—— 

Mr. MELSON. Courts are allowing this type of pattern evidence 

into evidence every day. 

Mr. GOHMERT. With how many points? 

Mr. MELSON. Well, it depends on the circumstance. The admission of the evidence is so case-specific. You have got to make sure 

that your expert is qualified. 

Mr. GOHMERT. Sure. 

Mr. MELSON. You have to have confidence in his ability to do the 

examination. You find that out through direct and cross examination. And if you believe that based upon what he did, whether he 

is from an accredited laboratory, whether he is certified, all of the 

other evidence that you take in holistically, you have to make a 

judgment call as to whether that is probative in this particular 

case for the issue at hand. 

Mr. NEUFELD. Congressman Gohmert, if I just may, because I 

didn’t take advantage of it before? 

Mr. GOHMERT. Do I have unanimous consent? 

Mr. SCOTT. Yes, please. 

Mr. NEUFELD. I think your last question was incredibly poignant. 

You said, how many points does it have to be that they say it is 

a match? One of the problems is that in one state it could be five, 

in another state it could be seven, another place it could be nine 

or 11. 

You would not be satisfied if you sent your blood out to four different laboratories and they had a different way of determining 

whether you had a certain disease or whether or not you reached 

a certain threshold that you need a certain medication. You want 

to create one kind of standardized way of interpreting data. 

And one of the problems is we haven’t done that, and that is why 

people talk about having a National Institute of Forensic Science 

so there would be some group other than just the users who would 

just say, you know what, it has got to be nine, or it has got to be 

seven, whatever it has to be, it becomes a national standard. 

Mr. GOHMERT. Was that seven before they consider it an acceptable match? 

Mr. MELSON. The FBI has no—— 

Mr. GOHMERT. They have no—— 

Mr. MELSON [continuing]. No standards. 

Mr. GOHMERT. Okay. 

Mr. MELSON. Now, there are no minimum points that you have 

to have. It is on a case-by-case basis. 
56 

Mr. GOHMERT. Alright, and what Mr. Neufeld seems to forget 

sometimes is when he talks about the medical laboratories. They 

are dealing with pristine samples. You know, they aren’t contaminated; they aren’t partial draws of blood and things like that. It is 

pristine, so it is a lot different than doing an analysis of a latent 

fingerprint and a rolled fingerprint. 

You can’t have, necessarily, specific rules that apply to every single type of analysis. 

Mr. MELSON. Okay. I appreciate the Chair’s indulgence. Thank 

you. 

Mr. SCOTT. Thank you. Let me just follow up on this fingerprint, 

because if all you have for evidence is five points, and you look at 

it as absolutely consistent, you do a visual overlay, and it just overlaps exactly, does the jury not get to see that if the standard is 

nine? 

You only get seven. You have a standard of nine, but seven is 

all you have got. I mean, would the jury not get to see that? 

Mr. MELSON. Well, that is the problem with having a uniform 

standard that is not flexible to meet the particular case at hand. 

Those five points of comparison may be relatively unique and, 

therefore, could even be a better identification than another comparison with nine points. 

So what you are doing is you are setting an artificial standard 

for the community which deprives juries of probative evidence. 

Mr. SCOTT. Mr. Neufeld? Why was Mr. Barnes tested when he 

was tested? What were the circumstances that—I assume he was 

claiming innocence all along. 

Mr. NEUFELD. He was claiming innocence all along. He actually 

wrote to the Innocence Project way back in the early 1990’s, and 

we tried to do then state-of-the-art DNA testing, but as these folks 

here will know better than I will, the type of testing at the time 

was friction fragment laying polymorphism needed a larger sample 

than the kind of very sensitive Y-STRs and other STRs that we 

were able to finally exonerate him with in 2008 and 2009. 

So we did testing way back when, then we just waited for the 

technology to catch up, and that is how he finally got out. 

Mr. SCOTT. Did you get a cold hit to know who it was? 

Mr. NEUFELD. On this case, no, but on more than a hundred of 

our 238 exonerations, we have worked with police and prosecutors 

to identify the real perpetrator, and invariably those people who 

are identified committed other serious violent crimes in the intervening years. 

And that is why when we are talking about these reforms that 

the NAS is talking about, it is not just about avoiding a wrongful 

conviction, it is about public safety. It is about trying to make sure 

that the system is working as scientifically as possible so we can 

get the most powerful evidence to solve crime and identify perpetrators. 

Mr. SCOTT. Well, you indicated your—in questions and in your 

testimony something along the lines of the purpose for which it is 

used. So you could have very good science, and there would be a 

difference between, for example, using it for screening or investigations and using it as evidence in a trial. 
57 

DNA, for example, you would have all kinds of—if you have got 

all these samples out there, you would have all kinds of chain-ofcustody problems if you tried to use the sample in the database in 

court. But we don’t do that. You use the sample in the database 

for screening. When you get a cold hit, you go to that person, get 

the sample, and that sample is what you introduce in court. So you 

don’t have any of the chain-of-custody problems. 

Is there good science that will help you solve a crime that may 

not be good enough for admissibility in court? 

Mr. NEUFELD. That is a good question. I think that police are 

constantly using different investigative tools to work leads that 

nevertheless may not be admissible in a court of law. A police officer can secure, for instance, a confession from somebody in violation of their Miranda rights, in violation of all kinds of things that 

would prevent the confession from being admitted, but it may leave 

the police other evidence which corroborates somebody’s guilt, 

okay. 

Mr. SCOTT. What happened to poison fruit? 

Mr. NEUFELD. No, no, no. What I am saying is the confession—— 

Mr. SCOTT. Fruit of the poison tree. 

Mr. NEUFELD. The confession itself won’t be admissible but, for 

instance, even with confessions, under a case called Harris v. New 

York, if the defendant testifies and says something that contradicts 

the confession he gave, even though it was involuntary, they can 

then introduce the confession as part of the rebuttal case. 

I mean, there are all kinds of evidentiary rules to handle those 

situations. But the point here is that, you know, I don’t even have 

a problem with the forensic scientists in the Barnes’ case doing the 

kind of work that she did. She was a very professional person, very 

highly regarded in the community, and since New York didn’t have 

someone with this expertise, they went to the Connecticut State 

Crime Laboratory who availed them this woman to do the work. 

The problem is once you have some leads like that, unless you 

are able to quantify the probative value of that evidence, what is 

the jury supposed to do? And so what you have to realize, it is not 

enough with a lot of these forms of evidence, whether it is ballistics, whether it is bite marks, pattern evidence, or hair evidence, 

in this case, okay, which was probably the most probative of all. 

It is not enough to say that something is consistent with or 

matches or whatever unless you can communicate the jury what 

does it mean to be consistent? 

Okay, and that is science, by the way. That is not just a judge 

as gatekeeper. The scientific community must ensure when they 

validate something that they have not only validated the analytic 

capacity of it, but they have also validated the way it will be interpreted and explained. 

Mr. SCOTT. Is the use of the word ‘‘match’’ problematic in court? 

Mr. NEUFELD. Well, it is interesting. Just to give an example of 

it, the board of forensic odontology has five different types of testimony that you can give, and the lowest, in terms of its evidentiary 

significance, is match, okay? Yet, when the psychological studies 

were done at Arizona State University on jurors, 84 percent of the 

people tested said ‘‘match’’ is the equivalent of it is his to the exclusion of the whole planet. 
58 

So obviously, one of the things that the NAS talks about here is, 

you know, we really have to have a scientific basis for the way 

these words are used, and the best way to do that, they say, is that 

for all these different pattern and impression evidence systems is 

to go out, roll up their sleeves like they do with DNA and get data. 

Find out, you know, how common a certain class characteristic 

is. Once you know how common or rare a class characteristic is scientifically, you get to communicate that to the juror as opposed to 

words like, match, similar, or consistent with. 

Mr. SCOTT. I have several other questions. 

Mr. Gohmert? Do you have further questions? 

Mr. GOHMERT. Just a couple of brief—you know, the study recommended this new National Institute of Forensic Science, and indicated that the National Institute of Standards and Technology 

had limited ties to the forensic community and would not be seen 

as a leader by scholars, scientists, and practitioners. 

Mr. Hicks? You had indicated in your testimony that you didn’t 

support the new NIFS. How do you respond to the report saying 

that it may not be seen as adequately a leader by scholars and scientists? 

Mr. HICKS. Well, I guess, in looking—— 

Mr. GOHMERT. I mean, the NIST. 

Mr. HICKS. Right. In looking at NIST, NIST played a very significant role in the DNA development, and their scientists at NIST 

continue to play a significant role in terms of teaching and passing 

along a technology to others. 

NIST was very much involved in the optimization, I guess, of the 

automated fingerprint identification systems. They were involved 

in the automated firearms identification systems in trying to optimize those systems. They are involved in standards development 

for industry for all sorts of clinical applications and other applications, and they produce the traceability standards that are used as 

a quality management device or control in any laboratory and quality management system. 

So I am not sure where that statement would come from. It may 

be that some forensic people don’t have a full recognition or appreciation for the role that NIST has played, but from perspective, 

they were a key player in the development of those systems. 

Mr. GOHMERT. Okay. Well, thank you. 

And, Mr. Neufeld? You know, I applaud the efforts of the Innocence Project, you know, where you could work so hard, take so 

much time and effort to exonerate someone who was wrongfully 

convicted, but it is my understanding that since 2004 of the significant number of innocent people that you have helped get released 

that there have just been two since that time. 

Is that not accurate? 

Mr. HICKS. Right, in looking at NIST—— 

Mr. GOHMERT. Okay, thank you. And Mr. Newfeld—— 

Mr. NEUFELD. No, that is not accurate at all. In fact, I think just 

in the last—— 

Mr. GOHMERT. Who were convicted since 2004. 

Mr. NEUFELD. Oh, yes, well—— 

Mr. GOHMERT. Yes. 
59 

Mr. NEUFELD [continuing]. Also know that. In fact, the average 

life—Mr. Barnes is a good example. Mr. Barnes we took on as a 

client in 1993. It took us—you do the arithmetic—15 or 16 years 

to get him exonerated. The average client who we represent, it can 

take 5 or 6 years before we exonerate them. So you wouldn’t expect 

any people who were convicted since 2004 to yet make it into our 

cycle. 

Mr. GOHMERT. Yes. 

Mr. NEUFELD. First of all, we have a backlog now of, I think, 

more than 2,000 cases. 

Mr. GOHMERT. But you said with Mr. Barnes, you had to wait 

for the science to catch up, and we have come so far in the last 20 

years, and that is why I was thinking that perhaps the courts are 

doing a better job now. Perhaps that is an indication they are doing 

better now than they were—— 

Mr. NEUFELD. I don’t—— 

Mr. GOHMERT [continuing]. When he was inappropriately convicted. 

Mr. NEUFELD. Well, I don’t think that is the answer, and the reason that is not the answer, sir, is because DNA is only available 

in a small minority of violent crimes. And if we realized that these 

other disciplines were being used and provided misleading evidence 

then, and those other disciplines may be still utilized today where 

there is no DNA evidence to correct it, then there is the very real 

likelihood and risk that other innocent people will continue to be 

wrongly convicted. 

The reason we do our work, sir, is because DNA can’t solve all 

the problems. If it could, I would go home and go fishing. But we 

have all these other disciplines that are not as reliable or robust 

as DNA that are still out there, and we want to make them better. 

Mr. GOHMERT. And I appreciate that. That answered my question, thank you. 

Mr. SCOTT. The gentleman from New York. 

Mr. WEINER. Thank you. Can I ask—I don’t know who referred 

to it in their testimony—have all of these CSI shows polluted our 

debate over this to a point that it is almost irretrievable? I mean, 

they are—I mean a lot of these conceptions that jurors must walk 

in with, and even language like, ‘‘match’’ or ‘‘a hit’’ or—I mean, I 

don’t know who would be best to answer this. 

I mean, aren’t we in this circumstance that we went for this long 

period of time, we got this great new technological tool that everyone looks at, as you can see on this Committee, through their own 

ideological lens—some people see it as a tool to put away bad guys, 

some people see it as a tool to exonerate people who didn’t do anything wrong. 

I think most Americans see it as both, and that is what the beauty of these tools, but are we at a point now that there is something 

that even a new government agency would have difficult handling, 

which is the language that we use when talking about it. 

Is it your suggestion, Mr. Neufeld, that there be these terms of 

art that get built into any standards that are arrived at, that putting aside the mathematics that you would say a judge would hear 

objection if someone used the word match, and they would have to 
60 

say with reasonable probability to one in two—you know, one in a 

million or whatever—how do you solve the language problem here? 

Mr. NEUFELD. Well, what the National Academy says, and I am 

not a scientist, I am not a mathematician, I am not a statistician. 

But what the scientists in the National Academy of Science report 

say is that we should probably ultimately eliminate terms like 

match, consisting with, and similar to, and instead have sciencebased testimony. 

So, in other words, if you have a database that says that a particular—let’s say they do the research and they show that this particular impression made by a shoe occurs in, you know, one out of 

80 pairs of shoes that are marketed in the United States—whatever it is—whatever the data is, okay. 

Then an expert can get up there, and instead of saying, similar 

or consistent with, he would say, you know, one out of every 80 

pairs of shoes is like this one, the defendant had it and the perpetrator had it. 

So if you do away with all those general—— 

Mr. WEINER. But isn’t there an unlimited number of combinations and permutations of pieces of evidence? How would you conceivably do that? I mean, you are going to have a shoe match 

standard for Keds in the year 1972 to 1981, you know, how do you 

do that? 

Mr. NEUFELD. Well, actually, I think, for instance, Mr. Hicks 

could answer that better than I could, because the FBI laboratory 

maintain databases on lots of things like that with fibers, you 

know, and—— 

Mr. WEINER. And tires and things like that. 

Mr. NEUFELD. And things like that, okay. But what they didn’t 

do in terms of the wear of a used tire or a used shoe, you know, 

you didn’t have necessarily databases on class characteristics when 

it came to wear. 

Mr. WEINER. I am sorry, go ahead. 

Mr. NEUFELD. So all I am simply saying is, is that we have 

science-based testimony for DNA, and it doesn’t have to be necessarily as definitive as DNA. I remember the old days when I was 

trying a case where if the serologist said, you know, your client had 

the same ABO and PGM type, which was good science, and that 

we would only see that particular profile in one in 50 people, I 

thought that was pretty persuasive evidence of guilt. 

Of course when it is now matched given the CSI world of DNA 

and one in a trillion or one in a billion, it may not seem that persuasive, but it was very powerful then. The point is no one should 

try and exaggerate or overstate the probative value of evidence. 

And I think it is a lot to ask gatekeepers to know exactly what 

is out there. It would be much better if there was some standardmaking body which said, this is all you can say about the sneakers, 

or this is all you can say about the screwdriver, nothing more, 

okay. And these are your arrow bars, these are your confidence intervals, this is the chance of human error. You say all that. You 

put—— 

Mr. WEINER. Well, let me just let Mr. Hicks weigh in on this. 

Let’s take the case of Mr. Barnes. Let’s say there was jeans impres-
61 

sions in dust. Is it reasonable, as Mr. Neufeld and—is it reasonable 

to come up with types of standards for something like that? 

I mean, is it reasonable to say, alright, we have got 220 brands 

of jeans, 900 different combinations, permutations, and sizes, here 

is the math. Is that a reasonable thing to expect in advance of a 

jury? 

Mr. HICKS. I don’t think so. I think you have already characterized there are certain elements of randomness there that may not 

lend themselves to those kinds of studies. 

Now, the types of reference files that Peter alluded to there, the 

shoeprint file, the tire tread file, those weren’t used for court testimony purposes, but basically to provide lead information. So if you 

saw a certain type of image of a shoeprint I said it was available 

at a scene, you might be able to tell the investigators it looks like 

this was a characteristic of a Keds product produced during some 

certain time frame. You might be able to provide that lead. 

But that is a class characteristic not an individualizing characteristic. So the next challenge would be, of course, for the investigators to find a suspect that happened to have those kind of 

shoes, and then see if a direct comparison of those can find those 

wear characteristics, those things that might suggest that they are 

similar in appearance. 

Mr. WEINER. Can I just squeeze in one final question? The report 

talked about the disparities in forensic science capabilities from 

one community to another. Are there trends that you four have 

seen that leads you to believe if you are in a big city, you don’t 

want to get into problems with DNA because the prosecutors are 

less—or is there a regional thing, you know, if you are in the West 

coast, you know they are much better at dealing with these things. 

Are there some labs that we can look at? Are there some systems 

that on their own have gotten much better that you can say, you 

know what, St. Louis is a good system. They train their forensic 

people very well. I mean, are there those types of things that we 

can learn—best practices from someone before—as we are starting 

to arrive at what the national standard should be? 

Or is it purely random? There are cases like Mr. Barnes, tragically, throughout the country, and there are cases where people 

were caught because of evidence as well. I mean, are there any conclusions we can draw from one community to the next? I know Virginia is just great, I hear. Just terrific. 

Mr. MELSON. Well, Virginia is great. I used to be a state prosecutor there, and we had great service from Pete Marone’s lab. I 

think there are some labs out there that are better than others. In 

the accreditation program when a lab has applied for accreditation 

and they are just starting, we see a tremendous difference between 

the time that they begin the process and the time that they are actually accredited. 

And during that process, we see that some labs are better funded 

than others. Some labs have better training programs than others. 

So it is possible to point to particular labs and say they seem to 

be exceptional labs. That doesn’t mean they can’t make a mistake 

from time to time, but there are difference in quality between laboratories and communities. 
62 

And the issue usually is surrounding funding. How much money 

do they get to invest in the infrastructure, the capacity building, 

the education, the training, and the certification and retraining. 

Mr. WEINER. And have any states gotten ahead of the curve on 

this in terms of the accreditation of laboratories, accreditation of, 

or standards for, within their own state courts that we can look at 

and say, here, this is a state that has tried to do it better? 

Peter? Do you have some sense that there are some states that 

you have operated in that seem to be more advanced on this than 

others? 

Mr. NEUFELD. Well, there are some states, for instance, which 

are trying to proactively deal with the problems of forensic science 

by having an oversight commission. For instance, in Texas, in the 

congressman’s state, on the one hand, we have had the most exonerations through DNA in Texas, and it is not a reflection at all, I 

believe, on the criminal justice system in Texas. 

There have been a lot of people out there who were able to locate 

the evidence. It wasn’t destroyed in the intervening years. Thank 

goodness the laboratory saved all the old samples from 20 years 

ago, and they were able to do the testing. 

But what they did do very affirmatively in Texas was they set 

up a forensic science commission, one of the first in the country. 

And, for instance, they are taking a look at arson—at the mechanisms that were utilized in the old days to determine that a fire 

was caused intentionally as opposed to accidental origin, and they 

are actually trying to wrestle with that. 

New York has a commission also that is trying to do some of 

that. Virginia now has an oversight commission as well. But that 

isn’t enough, okay. It would be much better if there were a single 

entity nationwide that could look at this stuff, because there is actually no reason—there is no reason why someone should think 

that you are going to get better quality forensic science in Nebraska than you will in Arkansas. 

Something as important as that should be consistent throughout 

the country just as we require that the use of medical devices or 

drugs is the same throughout the country. 

Mr. WEINER. Thank you, Mr. Chairman. 

Mr. SCOTT. Thank you. I think we have decided that the judge 

would be inadequate as a gatekeeper to decide what kind of scientific evidence comes in and comes out. 

The next question, if it is not the judge, who is it? I have heard 

an accreditation standards, but would we have an accreditation 

standard for each different technique, that is somebody to accredit 

ate fingerprints, somebody to accredit some other technique, or 

would it be one agency for everything? 

Mr. MARONE. Well, I think you have got a number of issues 

there. If you are looking at setting up the methodologies, Mr. 

Melson mentioned the SWGs as a starting places. These are scientific working groups. 

That doesn’t mean that those SWGs necessarily composed all of 

forensic scientists. There can be other scientists in there. In fact, 

the committee that was also mentioned in this—has psychologists 

on it looking at biased concerns and so forth. 
63 

And so, I think, the methodology is set up by technical groups 

that have particular interest or expertise in those areas, one. There 

are recognized international accrediting bodies that accredit laboratories who utilize these approved methods. 

You have approved certifying bodies—already recognized certifying bodies that are in place that set the credentials of the individuals. Now, it is not to say that the Federal entity doesn’t have a 

role in each one of those developments, but the role of the Federal 

entity is to make sure that all these things are working in tandem 

and it—well together. 

That is where you need the oversight of, are you accredited by 

appropriate means, yes-no? Are you certified by a recognized body, 

yes-no? Are you using appropriate methods, yes-no? All these 

things coming together at the same time. Do you have appropriate 

people who have the proper graduate or undergraduate education, 

yes-no? 

And so for me, that is what I see the oversight is being the 

facilitator, if you will, of all these different functions that need to 

all come together and really be meshed together quite intricately. 

Mr. SCOTT. Just following up on that. Mr. Hicks, could you indicate what effect the Coverdell Forensic Science Improvement Program has had? Has that helped in this? 

Mr. HICKS. It has been very helpful, yes. Of course, one of the 

elements of the eligibility for funding under Coverdell requires that 

the laboratory be accredited or be working toward accreditation. So 

that, I am sure, has had a significant effect in moving laboratories 

toward those standards. 

And in New York state, it has been very helpful in that regard 

in helping laboratories to update their systems, and to be sure that 

they are complying with the standards. 

If I may just go back to the scientific working group issue too. 

I wonder if it is almost as the DNA experience, of course, as that 

technology was evolving and emerging, there was a high level recognition amongst lots of people about the potential of that technology. 

The scientific working group was established to help draw that 

together and do it in a coordinated way that would meet the needs 

of the criminal justice system, and following that, we saw scientific 

working groups emerge in other disciplines as well. 

But just as with DNA where once we got started, there were 

questions of backlogs and difficulty keeping up with the work, and 

the Federal Government came in and supported that activity, and 

it has helped to address that to some extent, that is sort of where 

we are, it seems to me, with respect to some of these other disciplines. 

Perhaps now that the elements are in place to sort of work on 

this, it just needs some funding support to help drive the system. 

It needs some centralized coordination to help guide the system 

and address the kind of questions that were raised in the Academy 

report. 

Mr. SCOTT. One of the worst pieces of evidence and one of the 

most frequently cause of mistakes is eyewitness identification. How 

would we let eyewitness identifications come in? 
64 

Mr. NEUFELD. The way we have let eyewitness identifications 

come in for the last 25 years, after a series of Supreme Court decisions such as Manson v. Brathwaite and Neil v. Biggers, is we look 

at five factors of reliability. 

The problem is that several of those factors, again, don’t have a 

scientific basis for them. Although they were articulated by the Supreme Court 25 or 30 years ago, there is a whole new body of social 

scientific research done in laboratories coupled with the compelling 

data of the Innocence Project where 75 or 80 percent of our cases 

involve misidentifications that would warrant a second look, if you 

will, at what the court should utilize before an identification is 

deemed sufficiently reliable to be heard by the jury. 

One other thing, Mr. Chairman, which is that you were asking 

about accreditation. There is a fundamental difference between accrediting a laboratory and accrediting an actual methodology. The 

ASPA lab system accredits laboratories. 

We talked about certification. We certify individual practitioners. 

But before you get to accrediting and certifying, you got to be darn 

sure that the actual technology that these people and these laboratories are going to use has been sufficiently validated. And, you 

know, folks said that well, we have SWGs to do that. SWGs, in 

large part, are user groups. They are some of the better people at 

better laboratories, but they are user groups. 

We would never ever allow user groups such as pharmaceutical 

companies or doctors to be the people who sit at the FDA to decide 

whether a device can be utilized or not. We use an independent 

group, and it has always been a tradition in important matters of 

health and safety to use independent people as opposed to users to 

decide whether or not something has been sufficiently validated or 

not. 

And that is one of the reasons why the NAC called for a National 

Institute of Forensic Science. 

Mr. SCOTT. Thank you. 

Mr. Marone? We were talking about backlogs and money. I don’t 

think I heard a number. How much money do we need to eliminate 

these backlogs and improve the technology? In just order of magnitude, what are we talking about? 

Mr. MARONE. When we begin to look at the complexity of all the 

issues that we are talking about, there are some things you can put 

a dollar figure on easily by estimating. 

One of those is not how many people we need or how much 

equipment we need, because we still don’t have the numbers on 

that. But let me give you a for instance. One of the report’s recommendations said that we need to look at a bigger pool of employees. We need better qualified people. 

How do you do that? You get the kids going to school interested 

in that. I am old enough—some of the folks in the room remember 

LEAA. I went to graduate school under LEAA. I worked 4 years. 

My loans were forgiven in graduate school. I worked in a lab for 

4 years, boom. We need to do that again. 

What would that cost? FEPAC accredited institution—these are 

accredited institutions in forensic programs. There is only 20 some 

out there. I don’t have a handle on how many students, just a cou-
65 

ple hundred students. Giving them loans for $30,000 a year, is $5 

million. That is what it costs. 

To do that for undergraduate for all the existing programs that are there is $55 million. I mean, that is easy to estimate what you 

need. Now, that may swell when, you know, more institutions see 

that, but what it does is it makes those people competitive with the 

kid who gets a free ride to go get a Ph.D. in chemistry at Duke. 

So you can get the better qualified—the sharper kids into the 

system. When we are looking at accreditation, accreditation roughly averages about $10,000 per site—excuse me, per site visit. 

If we are looking at 11,000 entities out there that need to be ac- credited, 11,000 times $10,000, $110 million. So those are the ones 

that I can put easy numbers on to begin with. What does it cost 

to train the people to become accredited? Somebody is going to take 

classes in a year or two to work for that particular agency to be 

accredited. 

Training for that person alone is $5,000. If there is one in each one of these institutions, it is 11,000 times $5,000. So those are the 

ones that are easy to figure. The ones that are impossible to figure 

right now is, we don’t even know if 11,000 is a good number, because we can’t ascertain how many of these ID units or crime scene 

units are out there. 

I do in Virginia, because we did a survey. There are about 20 or 

30 that do it full time, crime scene, and another 15 or so that have 

ID units—fingerprint units. So we need to do that nationwide to 

figure out what we are looking at and what kind of facilities they 

are in, what kind of equipment needs it is a very significant needs 

assessment. 

The military would call it, you know, their requirements document, if you will. What do we need before we move on? The number is going to be staggering. 

Mr. SCOTT. Thank you. 

And final question, Mr. Melson, in your testimony, you ended by 

saying that you would hope that somebody would ask you about 

the two recommendations you were not supporting. Did you want 

to comment on that? 

Mr. MELSON. Yes, sir. On those two recommendations, which the 

department feels needs further review, the first is whether or not 

there ought to be an independent agency, and I think that requires 

more review to see whether or not we could spend our money more 

wisely and our time more wisely than creating a new bureaucracy. 

Both here at home and abroad, we have seen how difficult that 

is, how time consuming it is. The needs of forensic science are 

much more urgent than we can wait to have a new entity created. 

With respect to taking the law enforcement laboratory, or the 

laboratories out of law enforcement, that needs further review too. 

I mean, just to give you an example, and going off of Mr. Marone’s 

comment about the 11,000 small forensic science service providers 

in police stations and sheriff’s units and so forth, to get them out 

of there into their own separate laboratory is going to be immensely costly. 

It is going to be very disruptive. You are going to get a lot of 

pushback, I would think, from the chiefs and the police officers and 

so forth. The good news is that when you are accredited under the 
66 

ISO standards, like many of our laboratories are accredited, there 

are required management standards in there that require autonomy from the parent organization so that, number one, you can 

maintain your scientific integrity and independence, and two, there 

is independence of some nature with regard to the funding stream 

for those laboratories. 

So there is something in place there that meets the goals, I 

think, of the NAS report without stripping out these laboratories 

from law enforcement at an immense cost and disruption. 

Mr. SCOTT. Thank you. 

Mr. Gohmert? 

Mr. GOHMERT. Just an observation with the greatest of respect, 

the Chairman had indicated that it seems that we have established 

the judge is inadequate as a gatekeeper. And I am still not sure 

that is the case. It just seems that—— 

Mr. SCOTT. I think the judge, in fact, will be the gatekeeper. 

Mr. GOHMERT. Okay. 

Mr. SCOTT. There is no question about that. 

Mr. GOHMERT. Okay. 

Mr. SCOTT. I thank the judge for his comment. 

Mr. GOHMERT. They may need greater training and understanding in order—— 

Mr. SCOTT. And also the scientific backup. If he is going to determine it has to be some scientific peer review to ascertain whether 

this is junk science or regular science. 

Mr. GOHMERT. Yes. 

Mr. SCOTT. And then what happens after you find out that it 

doesn’t particularly work? 60 Minutes ran a report on ballistics, 

suggesting that the protocol for ballistics evidence wasn’t up to par. 

Mr. Hicks? Do you want to comment on where we are on that? 

Mr. HICKS. I am not sure what you are referring to. 

Mr. SCOTT. 60 Minutes did a—— 

Mr. HICKS. It was about bullet lead identification. 

Mr. SCOTT. Tracing ammunition on—— 

Mr. HICKS. On compositional analysis, bullet lead identification, 

I think. Is that correct? 

Mr. SCOTT. Yes. 

Mr. HICKS. Right. Of course I am not really prepared to comment 

very much on that other than what was in the report. But I think 

essentially for some period of time, the FBI would look at the elements within a particular batch of lead, for example, look for the 

signature elements, if you will, that would be present there. 

And if they found consistency between one bullet lead and another bullet lead, they would draw the inference that they could 

have come from the same batch. And I think there have been studies shown that suggest that maybe that is the variability and the 

manufacturing process and everything else, it may not support that 

conclusion. 

And so I think they made their decision to discontinue that type 

of service. 

Mr. SCOTT. Mr. Melson? Did you want to comment? 

Mr. MELSON. Well, I was just going to say that I don’t think they 

found that the science was bad. The science was good, because it 
67 

is an elemental analysis. What they found was that the conclusions 

that were drawn from that analysis were not necessarily accurate. 

So it kind of talks to what Mr. Neufeld is saying is that we have 

to understand what it means to be consistent within other things. 

We have to determine that terminology and make terminology understandable to the lay person. 

Mr. NEUFELD. Just to clarify that. It is part of the science to 

communicate the probative value of the experiment that you did. 

It is not a separate matter. Scientists would say that you need a 

scientific basis in statistics and probabilities to communicate the 

value of the experiment or the analysis. 

So it is all part of the same thing. What is interesting about the 

CBLA matter is that the FBI continued testifying in many, many 

cases over 25 years that they could say that a particular bullet 

found in a body or at a crime scene came from a particular box of 

cartridges found in the home of a defendant. 

And they didn’t on their own realize that they had never validated sufficiently to make that claim. They never looked at that, 

and they allowed their examiners to so testify. After the NAS did 

its study saying, there is not enough science there to permit that 

kind of conclusion, subsequent to that, the FBI finally started writing letters to prosecutors around the country saying, you know 

what, when our expert testified in your case back in 1995 or 2001, 

okay, his conclusion was not sufficiently based in science. 

So it is all about science as well when you give these probabilistic estimates, and why you need a separate independent entity to do this is because—and bullet lead is a perfect example of it— 

the laboratory didn’t come to the conclusion on its own. It took the 

National Academy of Science to do it for them. 

Mr. SCOTT. Thank you. 

Mr. Gohmert? 

Mr. GOHMERT. The other thing I was going to mention though— 

the study recommends that Congress provide funds with strings attached to state and local forensic programs in order to gain compliance with the best practices and standards. Because what this 

comes back to—and it has been alluded to already, but we are the 

Federal Government, and most of the crimes we are talking about 

are state crimes. 

And although some would like to obliterate the state lines and 

just say, we are taking charge of everything here, it is a matter of 

state, and some states provide better justice than others, and I 

would hope that we could bring states along as effectively as possible. 

But I applaud those who do hold their prosecutions to the proper 

standards, because I don’t want the public that may be watching 

to get the wrong impression that people aren’t trying to do a proper 

job before they allow people to be convicted. 

I think most people are, but I thank you for the time. 

Mr. SCOTT. Gentleman from New York? Any final comments? 

Well, thank you. I would like to thank our witnesses for their 

testimony today. Members may have additional written questions, 

which we will forward to you and ask you to answer quite as 

promptly as you can in order that you response can be made part 

of the record. 
68 

Without objection, the hearing record will remain open for 1 

week for the submission of additional materials. 

I, again, want to thank all of the witnesses. This is very helpful 

testimony, and we are going to follow through on what we have 

heard. Thank you very much. 

Without objection, the Subcommittee stands adjourned. 

[Whereupon, at 5:03 p.m., the Subcommittee was adjourned.] 
(69) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS, AND MEMBER, SUBCOMMITTEE ON CRIME, 

TERRORISM, AND HOMELAND SECURITY

Thank you, Mr. Chairman. I would like to thank the witnesses here this afternoon, and everyone at the National Research Council who worked so hard to bring 

us this report. 

In 2005, the Congress asked the National Academy of Sciences to conduct a study 

on forensic science. 

They were told to assess the present and future resource needs of the forensic 

science community; make recommendations for maximizing the use of forensic technologies and techniques; identify potential scientific advances in the field; disseminate the best practices and guidelines concerning the collection and analysis of forensic evidence; examine the role of the forensic community in the homeland security mission; as well as any other additional issues concerning forensics determined 

by the committee. 

We are here today to look at the findings of this report, and to find ways to improve the forensic skills across the country, so that they may better solve crimes, 

investigate deaths, and protect the public. 

There are many examples of incidents where the men and women responsible for 

our law enforcement would have been better served by improved forensics. In my 

home city of Houston, Mr. Gary Allen Richard knows this all too well. 

He was put on trial in 1987 for rape and robbery. Blood-typing evidence from the 

Houston Police Department crime lab led to a conviction and to what would be a 

22 year prison sentence. Less than three weeks ago, new tests were conducted, and 

now both Mr. Richard’s attorney and prosecutors say that the jury was not informed 

of all the necessary facts. 

Just as DNA forensics let an innocent man go free, so can it help criminals who 

had thought that the past years had allowed them to escape the consequences of 

their actions. Houston saw this when, in 2003, a leader in private forensic DNA 

testing, aided the local police in analyzing biological evidence from a 1992 murder. 

This cooperation resulted in the identification and arrest of Anthony Allen Shore. 

He confessed, and is now known to be responsible for the sexual assault and strangulation deaths of four Houston-area women dating back to 1986. The city has advancements in forensics to thank for this recent justice. 

Indeed, I have offered amendments on the safekeeping and collection of DNA samples in various crime bills. I believe that improvements in forensics science will help 

criminal justice and criminal law enforcement. In the past, Harris County has had 

problems with retaining DNA and has had difficulty maintaining the integrity of 

samples. Samples were either lost or polluted. I am hopeful that as technology becomes more advanced that forensics science will also improve. As members of Congress, we must work to ensure that forensic science is advanced and perfected to 

ensure the proper conviction of defendants that have committed wrongs against society. 

That is why I look forward to speaking with the witnesses here today about the 

findings of this report. Congress owes to the victims of forensics failures past to better the science that is now so central to our law enforcement. 

Thank you, Mr. Chairman, and I yield back the balance of my time. 

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PREPARED STATEMENT OF ASTM INTERNATIONAL

INTRODUCTION

Thank you for the opportunity to submit written comments. ASTM International 

is a leading non-profit organization devoted to the development of international 

standards. For more than 100 years, ASTM has served society as a leading venue 

for consumers, industry and regulators to work collaboratively under a balanced and 

consensus-based process to craft voluntary consensus standards. ASTM standards 

are widely recognized and valued for their technical quality and relevance. 

The National Research Council report entitled Strengthening Forensic Science in 

the Unites States: A Path Forward offers many recommendations on how to improve 

forensic science in the criminal justice system. One of the report’s recommendations 

specifically identifies a need for standards for forensic terminology and reporting. 

ASTM Committee E30 on Forensic Science maintains over 54 standards on test 

methods, guides, practices, classifications, and terminology for, but not limited to, 

definitions, methods and standard reference materials for the collection, preservation, scientific examination, preparation and reports relating to physical evidence for 

forensic purposes; and the general practice of forensic science. 

COMMITTEE MEMBERSHIP

Drawing on a diverse membership of more than 825 members, ASTM Committee 

E30 is a leader in the development of consensus standards for forensic science applications. The committee includes technical experts from government agencies including the Department of Justice (National Institute of Justice); Federal Bureau of Investigation (FBI), Secret Service, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); Internal Revenue Service (IRS); City, County, and State police departments and crime labs, District Attorneys and Attorney General Offices, National Institute of Standards and Technology (NIST); and the Department of Defense. Participation from the government along with other stakeholder such as forensic science 

professional organizations and academics makes ASTM an ideal environment for the 

development of standards that advance science and technology in the forensic field. 

FORENSIC SCIENCE STANDARDS

Existing ASTM forensic science standards include: 

• ASTM E1732 Standard Terminology Relating to Forensic Science 

• ASTM E620 Standard Practice for Reporting Opinions of Technical Experts 

• ASTM E1658–08 Standard Terminology for Expressing Conclusions of Forensic Document Examiners 

• ASTM E678 Standard Practice for Evaluation of Scientific or Technical Data 

• ASTM E1492 Standard Practice for Receiving, Documenting, Storing, and Retrieving Evidence in a Forensic Science Laboratory 

• ASTM E1843 Standard Guide for Sexual Assault Investigation, Examination, 

and Evidence Collection 

• ASTM E2329 Standard Practice for Identification of Seized Drugs 

In addition to the standards that are already developed, E30 is in the process of 

exploring standards related to Practice for Computer Forensics, Education and 

Training in Digital Forensics, Continuing Education and Professional Development 

of Forensic Document Examiners, the Restoration and Preservation of Charred Documents just to name a few. 

THE U.S. VOLUNTARY CONSENSUS STANDARDS SYSTEM

Another recommendation by the National Research Council report encourages the 

National Institute of Forensic Science (NIFS) to work with the National Institute 

of Standards and Technology (NIST) on tools for advancing the forensic science discipline as it relates to testing, reliability and validation. NIST is a major participant 

in ASTM’s E30 work, but also participates in the standards work of other standards 

development organizations, allowing the agency to be keenly aware of the standards 

community. 

The National Technology Transfer and Advancement Act of 1995 (NTTAA) requires federal agencies to work with private sector to create, use, and adopt voluntary consensus standards in lieu of creating their own and NIST is the coordinating agency for this law. Adherence to this law is perhaps one reason why ASTM 

E30 membership is comprised of members of various law enforcement agencies at 

the local, state, and national level. Thus, the NRC’s recommendation is correct in 
71 

asking for the appropriations of funds to ensure that NIST can properly carry out 

its duties to promote a better understanding of the existing system. NIJ and FBI 

also play an important role in this area by providing scientific knowledge and tools 

that can be transferred to underpin the development of standards and test methodologies through ASTM E30. ASTM’s standards development process is accredited 

by the American National Standards Institute and adheres to procedures for due 

process, openness, balance and transparency. 

ASTM STANDARDS AND THE CODE OF FEDERAL REGULATIONS

ASTM has a long history of working in partnership with Federal agencies to develop standards that meet evolving regulatory and procurement needs. According to 

the National Institute of Standards and Technology (NIST) Standards Incorporated 

by Reference Database, there are 2,500 standards from ASTM International incorporated by reference in the US Code of Federal Regulations. An additional 500 

ASTM standards have been identified by NIST as federal procurement standards incorporated by reference in various Federal policies. Accordingly, ASTM International is the single most Federally-referenced standards developing organization 

in the US. 

CONCLUSION

In summary, ASTM International has demonstrated success in working cooperatively with all interested stakeholders to craft voluntary consensus standards that 

meet the emerging needs of forensic science disciplines. Enhancing public-private cooperation and Federal participation in ASTM Committee E30 on Forensic Sciences 

will help to develop standards that advance science and technology in the forensic 

science field and improve the overall accuracy, reliability, and validity of forensic 

evidence. 

ASTM International welcomes the opportunity to transmit these comments. For 

more information about ASTM Committee E30, please visit http://www.astm.org or 

contact Tim Brooke at 610-832-9729 or tbrooke@astm.org. 

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