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THE NEED TO STRENGTHEN FORENSIC SCIENCE 

IN THE UNITED STATES: THE NATIONAL ACADEMY OF SCIENCES’ REPORT ON A PATH FORWARD 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

MARCH 18, 2009 

Serial No. J–111–13 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

RON WYDEN, Oregon 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

NICHOLAS A. ROSSI, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

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

prepared statement .......................................................................................... 49 

WITNESSES 

Edwards, Harry T., Senior Circuit Judge and Chief Judge Emeritus, U.S. 

Court of Appeals for the District of Columbia Circuit, and Co-Chair, Committee on Identifying the Needs of the Forensic Science Community, National Research Council of the National Academies, Washington, D.C. .......... 3 

QUESTIONS AND ANSWERS 

Responses of Harry T. Edwards to questions submitted by Senator Specter ..... 13 

SUBMISSIONS FOR THE RECORD 

American Society of Crime Laboratory Directors, Laboratory Accreditation 

Board, Garner, North Carolina: 

Jami St Clair, Chair, Lab Board, March 16, 2009, letter ............................. 22 

Dean Gialamas, President and Beth Greene, President-Elect, March 17, 

2009, letter .................................................................................................... 24 

Dean Gialamas, President and Beth Greene, President-Elect, December 

2008, statement ............................................................................................. 27 

Edwards, Harry T., Senior Circuit Judge and Chief Judge Emeritus, U.S. 

Court of Appeals for the District of Columbia Circuit, and Co-Chair, Committee on Identifying the Needs of the Forensic Science Community, National Research Council of the National Academies, Washington, D.C., 

statement .............................................................................................................. 30 

International Association for Identification, Robert J. Garret, Metuchen, New 

Jersey, March 18, 2009, letter ............................................................................ 42 

National District Attorneys Association, Joseph I. Cassilly, President, Alexandria, Virginia, letter ............................................................................................. 51 

Neufeld, Peter, Co-Director, Innocence Project, New York, New York, statement ...................................................................................................................... 53 

(1) 

THE NEED TO STRENGTHEN FORENSIC 

SCIENCE IN THE UNITED STATES: THE NATIONAL ACADEMY OF SCIENCES’ REPORT 

ON A PATH FORWARD 

WEDNESDAY, MARCH 18, 2009 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC 

The Committee met, pursuant to notice, at 10:02 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 

Chairman of the Committee, presiding. 

Present: Senators Leahy and Durbin. 

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

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. Today, we are going to examine 

the pressing need to strengthen forensic science in America. Just 

a few weeks ago, the National Academy of Sciences completed one 

of the most thorough reviews of forensic science ever undertaken 

in the United States. That is the good news. The bad news is it 

demonstrates that we have a problem, and the problems can go to 

the heart of our whole criminal justice system. 

I was just speaking before we started with Judge Edwards, who 

is going to be our witness, that unlike the image that so many of 

us see on television shows like ‘‘CSI,’’ forensic scientists too rarely 

get to review crime scene evidence in sleek, ultra-modern, state-ofthe-art laboratories. I have been to enough crime scenes to know 

that is not the usual way. And though it is an excellent program, 

the effect of it may be suggesting that forensic sciences are well 

funded and that their results are always infallible. As it turns out, 

the National Academy of Sciences says that is not the reality. I will 

give a couple of examples. 

Just last fall, the city of Detroit had to shut down its forensic 

laboratory after an independent audit found that the lab’s ballistics 

reports were wrong or false in one out of every 10 cases. The lab 

had not kept records of tests performed, nor calibrated instruments 

properly, in many additional cases. Similarly, in 2003, the city of 

Houston had to close its DNA and toxicology testing facilities after 

an audit found untrained staff, shoddy methodology, and potential 

contamination. I mention that because those findings resulted in a 

review of more than 1,300 criminal cases and required retesting in 

30 percent of these cases. In both of the instances, outside reviewVerDate Nov 24 2008 10:38 Jan 21, 2010 Jkt 054304 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54304.TXT SJUD1 PsN: CMORC
2 

ers found that labs lacked adequate staff, training, or equipment 

to do the job right. 

It is not limited to just a few underfunded labs with overworked 

staffs. According to the latest available statistics from the Justice 

Department, in 2005, the backlog of forensic exams was more than 

350,000 nationwide, up 24 percent from just 3 years ago. I wonder 

how many rape kits, for example, are still sitting on shelves that 

have been unexamined with the perpetrators at large and the victim has not seen justice? One out of every five labs does not meet 

the standards for accreditation set by the National Academy of 

Crime Lab Directors. The National Academy of Sciences says it is 

obvious in this case, you cannot let this continue. 

It is critically important to our criminal justice system that we 

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

the guilty, but also exonerate the innocent. It helps no one if you 

imprison the wrong person. If you have a serial killer or a serial 

rapist, and you say, ‘‘Great, we got the person, we have locked him 

up,’’ and you have got the wrong person, you have created two 

problems—two major problems: one, of course, is locking up an innocent person; but, second, you have not made society any safer because the perpetrator is still out there. So forensic science has become critically important. It is also critically important in supporting homeland security and counterterrorism missions. So we 

cannot wait for the next scandal to break or for the backlogs to 

grow worse. We have to pay attention now, and I want to work 

with Senators Specter and Durbin and other interested members of 

the Committee on this. 

This morning, we are fortunate. We have Judge Edwards of the 

D.C. Circuit Court of Appeals at this hearing. Judge Edwards was 

the co-chair of the distinguished Committee of scientific and legal 

experts who worked so hard over the past 21⁄2 years to complete 

this report, as requested by Congress. And, Judge, I want to publicly thank you and the other members of your Committee for doing 

this. It is not as though you did not have enough things to do to 

occupy your time, but I am glad you have taken it on. With your 

own credibility and your own well-deserved reputation for fairness, 

I knew that it would have a very, very good look and an honest 

look at the problem. 

The report is detailed and it is far-reaching, and I think it can 

provide a foundation for building broad consensus for change. It 

calls for mandating national standards, enforcing ‘‘best practices.’’ 

It points to a need for standards for the certification of individual 

examiners, the accreditation of their laboratories, more money in 

research. 

But even in traditional methods we see problems. Fingerprint 

comparisons can rely heavily on interpretation. We all remember 

the Brandon Mayfield case from a few years ago, when the FBI had 

to recant its initial findings that Mayfield’s fingerprint matched a 

print found in the Madrid terrorist bombings. An FBI examiner 

submitted an affidavit claiming there was a ‘‘100 percent’’ match 

when, in fact, the FBI later admitted the comparison was of no 

value for identification purposes. Other than the fact that you are 

going after the wrong person and the right person is off free, also, 

3 

as I recall, the U.S. Government paid a very, very substantial claim 

in that case. 

We know how faulty forensic science has gotten into the courts 

as evidence. We know this from our own experience and this Committee’s recent efforts to push the FBI to identify and correct the 

thousands of criminal cases where bullet lead analysis was improperly used. 

The report emphasizes the need to preserve evidence properly at 

all crime scenes and even after court proceedings. I know the importance of this firsthand from the experience of my friend Kirk 

Bloodsworth, an innocent man who was twice convicted of murder 

and rape, served 8 years in prison, including two on death row, and 

then they finally tested the DNA and found, oops, we got the wrong 

guy. And guess what? They found who the right guy was. And he 

was exonerated. But 8 years in prison, 2 years on death row. So 

we worked hard to pass the Kirk Bloodsworth Post-Conviction DNA 

program to encourage the States to retain test evidence from crime 

scenes. But that is meaningless if we do not preserve it. 

I will put my whole statement in the record because, frankly, I 

would rather hear Judge Edwards. 

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

Chairman LEAHY. Please go ahead, sir. 

STATEMENT OF HONORABLE HARRY T. EDWARDS, SENIOR 

CIRCUIT JUDGE AND CHIEF JUDGE EMERITUS, UNITED 

STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT, AND CO-CHAIR, COMMITTEE ON IDENTIFYING 

THE NEEDS OF THE FORENSIC SCIENCE COMMUNITY, NATIONAL RESEARCH COUNCIL OF THE NATIONAL ACADEMIES, WASHINGTON, DC 

Judge EDWARDS. Chairman Leahy, and other members of the 

Committee to whom I have submitted material, thank you for inviting me to appear today. As you have indicated, my name is Harry 

T. Edwards. I am a circuit judge on the U.S. Court of Appeals for 

the D.C. Circuit, where I have served for 29 years. And I am appearing today in my capacity as Co-Chair of the Committee on 

Identifying the Needs of the Forensic Science Community at the 

National Academy of Sciences. The Committee, as you have indicated, Mr. Chairman, recently issued a report, ‘‘Strengthening Forensic Science in the United States: A Path Forward.’’ In my very 

brief prepared remarks, I will highlight some of the salient points 

of the report. 

The impetus for our Committee’s report came in 2005, when Congress, at the urging of the Consortium of Forensic Science Organizations, representing professionals in the forensic science community, passed legislation directing the National Academy of Sciences 

to create an independent Committee to study the forensic science 

community. The Consortium’s call for help was prophetic. After 

more than 2 years of study, our Committee concluded that the forensic science community is plagued by serious problems that cannot be cured without significant congressional action. 

I started this project with no preconceived views about the forensic science community. Rather, I simply assumed, as I suspect 

4 

many of my judicial colleagues do, that the forensic science disciplines typically are well grounded in scientific methodology and 

that crime laboratories and forensic science practitioners follow 

proven practices that ensure the validity and reliability of forensic 

evidence offered in court. I was surprisingly mistaken in what I assumed. The truth of the matter is that the manner in which forensic evidence is presented on television—as invariably valid and reliable—does not correspond with reality. 

There are scores of talented and dedicated people in the forensic 

science community, and the work that they perform is very important. However, the quality of practice in forensic science disciplines 

varies greatly, and it often suffers greatly because of: the paucity 

of scientific research to confirm the validity and reliability of forensic disciplines and establish quantifiable measures of uncertainty 

in the conclusions of forensic analyses; the paucity of research programs on human observer bias and sources of human error in forensic examinations; the absence of scientific and applied research 

focused on new technology and innovation; the lack of autonomy of 

forensic laboratories; a gross shortage of adequate training and 

continuing education of practitioners; the absence of rigorous, mandatory certification requirements for practitioners; the absence of 

uniform, mandatory accreditation programs for laboratories; the 

failure to adhere to robust performance standards; the failure of forensic experts to use standard terminology in reporting on and testifying about the results of forensic science investigations; and the 

lack of effective oversight. 

In my written statement to the Judiciary Committee, I cited a 

few examples of the problems uncovered by our Committee, underscoring the needs of the forensic science community. The examples 

included, as the Chairman has already recounted some of them: 

court opinions reporting that an FBI fingerprint expert had ‘‘testified that the error rate for fingerprint comparison is essentially 

zero,’’ a claim that is scientifically implausible; reports of crime laboratories having been shut down and officials fired due to unqualified practitioners, lax standards that generated questionable or 

fraudulent evidence, and the absence of quality control measures to 

detect questionable evidence; evidence raising doubts about the efficacy of technical protocols adopted by Scientific Working Groups 

and serious concerns about the extent to which these protocols are 

actually followed by forensic practitioners; and the absence of 

qualified medical examiners and pathologists in States that still 

use coroners. These and other problems cited in the report highlight glaring weaknesses in the forensic science community. 

The principal point of our report is simple: There is an obvious 

and a compelling need to overhaul the existing system of forensic 

science in the United States. Forensic science experts and evidence 

are routinely used in the service of our criminal and civil justice 

systems. So it matters a great deal whether an expert is qualified 

to testify about forensic evidence and whether the evidence is sufficiently reliable to merit a fact finder’s reliance on the truth that 

it purports to support. Unfortunately, the adversarial approach to 

the submission of evidence in court is not well suited to the task 

of finding ‘‘scientific truth.’’ Judicial review, alone, will not cure the 

ills of the forensic science community. 

5 

And simply increasing the number of staff within existing crime 

laboratories and medical examiners’ offices will not solve the problems of the forensic science community. What is needed is interdisciplinary, peer-reviewed, scientific research to determine the validity and reliability of existing disciplines, and to achieve technological advancements. We also need to upgrade organizational 

structures, establish better education and training programs, adopt 

uniform and enforceable practices, require mandatory certification 

and accreditation programs, and ensure operational autonomy for 

forensic laboratories. This overhaul of the system is essential if we 

expect forensic practitioners to serve the goals of justice. 

The Committee found that, not only does the forensic science 

community lack adequate resources, talent, and mandatory standards; it also lacks the necessary governance structure to address its 

current weaknesses and to adopt and promote an aggressive, longterm agenda. Truly meaningful advances will not come without significant concomitant leadership from the Federal Government. 

With these considerations in mind, the Committee’s principal recommendation is that Congress should authorize and fund the creation of an independent Federal entity, the National Institute of 

Forensic Science, or NIFS. This new entity should be staffed by 

professionals who have expertise and experience in scientific research and education, physical and life sciences, forensic sciences, 

forensic pathology, engineering, information technology, standards, 

testing and evaluation, law, and public policy. And it should be 

headed by professionals who understand and are experienced in 

Federal oversight, regulatory regimes, and Federal-State relations. 

We believe that an entity like NIFS will serve our country well, as 

a new, strong, and independent entity, with the authority and resources to implement a fresh agenda designed to address the problems found by the Committee. 

Mr. Chairman, I have submitted a more complete written statement to the Committee for your review; however, I am happy to answer any questions that you may have at this time. 

[The prepared statement of Judge Edwards appears as a submissions for the record.] 

Chairman LEAHY. Thank you very much, Judge, and obviously 

any extra time you need, feel free. 

I read your report, and it is rather chilling. I hope that prosecutors and defense attorneys around the country are reading it and 

raising questions. 

One of the most glaring examples is the lack of national standards in death investigations. Back in 1928—even though I have 

been here a long time, I was not here then—the National Academy 

of Sciences called for the coroner system in this country to be abolished. Coroners were to be replaced by qualified medical examiners, and my little State of Vermont follows that. Even back in my 

days as a prosecutor, we did not have a coroner; we had a medical 

examiner. It had to be a physician, had to be trained in this area. 

We had what we called ‘‘untimely deaths,’’ a murder or suicide, 

anything where there was any question about it. But in a lot of 

States, they do not have the expertise or the training. They are 

simply elected officials with little or no medical training. ApparVerDate Nov 24 2008 10:38 Jan 21, 2010 Jkt 054304 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54304.TXT SJUD1 PsN: CMORC
6 

ently, a third of all the States have such a coroner system, more 

than 1,500 of these officers around the country. 

Your Committee concluded it should be abolished, much like the 

National Academy of Science report in 1928. 

Judge EDWARDS. Right. 

Chairman LEAHY. Why hasn’t it been corrected? I was amazed to 

read that because my experience had been with the Vermont system. We are the second smallest State in the Union, and we made 

a determination 40 years ago when I was a prosecutor, which had 

been in place for years before then. If a little tiny State like ours 

could do it, why don’t other States do that? 

Judge EDWARDS. Political inertia, possibly. I am not sure. These 

systems, some of them may be even embedded in State constitutional provisions which make it hard to make the change. Nonetheless, it is a good example of why we think change is likely to happen if we have a push from the Federal Government; that is, where 

standards are promulgated at the Federal level and are announced 

for the country to look to and to follow. 

Chairman LEAHY. Well, let me ask you about that. Suppose you 

had a degree in forensic science, and I have to assume this goes 

everywhere from correspondence courses to courses at some of our 

finest universities where it really means something. Simply saying 

you have a degree in forensic science, does that mean you really 

know how to work your way around a forensic lab? 

Judge EDWARDS. No. No, it does not. The less sexy part of the 

report has to do with the need for scientific research and better 

educational programs. But it is a critical need. We have to build 

it up from the bottom; that is, the educational foundation and the 

scientific research have to be established. 

The universities are not excited about doing work in forensic 

science. If we can get the universities interested in interdisciplinary, multidisciplinary work, that is, if there are incentive funds 

that we can find to give to the universities to do this research— 

it has not been done. I mean, that is the problem with most of the 

disciplines where you are talking about subjective examinations as 

opposed to DNA and drug analysis, which are on much more secure 

footing. We just do not have the research, and we do not have the 

educational programs. 

When we looked, as best I recall, we found that there was no 

Ph.D. program strictly in forensic science. Well, that is fairly appalling given what we expect of the forensic science community. 

And so the educational programs are not what they should be. 

There are some decent programs, but not nearly enough to serve 

the needs of the community. 

Chairman LEAHY. I would think just to say from a law enforcement point of view, I would think they would want it, because if 

you flip to the other side for the defense attorneys, I mean, I would 

think this was one of the areas I would move to attack, that the 

State’s witness is not qualified, does not have—you know, fill in the 

blank. I am not asking you to prejudge a case that might be coming 

before the Court of Appeals. But if you were a defense attorney in 

one of those areas, isn’t that one of the things you would think of 

attacking? 

7 

Judge EDWARDS. Yes, but I think it is going to be easier for these 

questions to be raised and for the problems with forensic science 

to be exposed if we move to systems that include things like mandatory certification and mandatory accreditation, because then 

judges are going to be better able to determine who is and who is 

not qualifiable as an expert. 

There are a lot of people testifying now who I think bring dubious credentials to the courtroom, and it is very hard for judges to 

figure that out. If we had a national system, a nationally approved 

system of certification, and attorneys and judges could now ask the 

questions such as, are you certified, and if so, where, and is it a 

program that we understand and recognize, that will begin to effect 

some change. 

Chairman LEAHY. But, Judge, there are areas—not in this area, 

but there are certain things in courtrooms that you ask for your 

certification, whether you are an accountant, whether you are a 

psychiatrist, a brain surgeon or whatever else. You have to show 

your credentials. They have to fit a certain standard that is accepted, whether it is in Vermont or Oklahoma or California or Illinois 

or anywhere else. 

Judge EDWARDS. We have not asked very much, so under the 

Federal Rules of Evidence, what has happened is the way Rule 702 

is written and has been applied, experience counts, and the judge 

can credit someone as an expert based on alleged skill and experience, and so that person may not be certified pursuant to any useful standards, but will attest to the fact he or she has been doing 

this a long time. 

Well, the Committee’s is that qualifying experts in this way does 

not give good assurance that the person understands the limits of 

the forensic discipline. If an examiner is certified under a good, 

mandatory certification program, this would tell us much more 

than a person merely saying, ‘‘I have been an examiner for a lot 

of years.’’ 

Chairman LEAHY. I am 100-percent certain that this fingerprint 

is the one except, Oops, no, found out it was not. 

Judge EDWARDS. It is not a scientific notion. There is no such 

concept as a ‘‘zero error rate’’ in good scientific methodology. 

Chairman LEAHY. Senator Durbin. 

Senator DURBIN. Judge Edwards, thank you very much. 

Chairman LEAHY. Incidentally, I want to thank Senator Durbin 

for the hearing he held yesterday on Mexican drug cartels. This is 

something that should frighten every single person in this country, 

so thank you very much, Senator, for doing that. 

Senator DURBIN. Well, I am glad to do it. 

Judge EDWARDS. Thank you, Senator. 

Senator DURBIN. We had good participation, and I would say the 

Attorney General of Arizona has said this is the new crime syndicate in America. You know, we have some vision of what organized crime is all about. It is all about the Mexican drug cartels 

at this point. For another day, we will be back on it. 

Thank you for doing this and raising some critically important 

questions. And I am just wondering what you might think the next 

time that someone appears in a courtroom across America and 

says, when fingerprint evidence is produced, ‘‘Well, I would like to 

8 

quote for you a statement from Judge Edwards’ Committee on forensic science where he said, ‘With the exception of nuclear DNA 

analysis . . . no forensic method has been rigorously shown to have 

the capacity to consistently, and with a high degree of certainty, 

demonstrate a connection between evidence and a specific individual or source’ ’’ ? 

Judge EDWARDS. Well, I think advocates will certainly raise 

questions, having read the report, and a number of judges will 

have looked at it. And I think questions are likely to be raised in 

court in a way that they have not previously been raised. 

You know, there has been an interesting split, when I talk to attorneys, in how we have proceeded on the civil as opposed to the 

criminal side. There are a lot of civil attorneys who are well funded 

on both sides, plaintiff and defendant, who feel like they can use 

the Daubert standards effectively to prevail in their individual 

cases. 

In criminal cases, however, what we have seen is a lot of defense 

counsel who do not have the resources to be able to raise the right 

questions; and we have had the problem of judges, lawyers, and jurors not knowing much about science; and trial judges operating 

alone; and a very limited standard of review when cases are appealed. 

Often there is not much we do at the appellate level if and when 

these cases come up on appeal, because we must give great deference to the trial judges. And if the right questions are not being 

asked in trial, the issue is not preserved for appellate review. 

Senator DURBIN. And you probably heard or read of this March 

15th announcement in Wayne County, Michigan, which backs up 

what you have to say here: 147 cases in a police lab mess called 

the ‘‘tip of the iceberg.’’ I think this was ballistic testing, if I am 

not mistaken. Too much of this is coming out, and it is accumulating. I thought it was particularly interesting. My gut reaction 

when I heard about the problem was the National Science Foundation. But you make it pretty clear in here that you say they are 

not really equipped to do this. They do not have the relevant expertise, as you say, needed to strengthen the practices of forensic 

science. And then you caution, and I think this is an important 

caution: ‘‘The entity that is established to govern the forensic 

science community cannot be principally beholden to law enforcement.’’ 

Judge EDWARDS. Right. 

Senator DURBIN. So your conclusion then is we have to really create a new entity. 

Judge EDWARDS. Yes. We really do need a new entity that is not 

beholden to the past dysfunctions of the community. I mean, you 

really need new people coming from multidisciplinary backgrounds. 

There are plenty of good sources for them to tap, ASCLD labs on 

accreditation; SWGs on technical protocols; and a number of smart 

people in the field and smart scholars and commentators who know 

the field well. these resources can be tapped by the leaders of the 

new entity—people who have no agenda based on the prior dysfunctions. 

We were thoroughly convinced that we must move from what 

presently is, which is not very good—it is dysfunctional—to a new 

9 

agenda. If we had a Director of NIFS like the President’s new 

Science Adviser, John Holdren, we would be in really good shape. 

The NIFS director would put together a really smart team, and he 

would have some really smart people who would think about the 

interdisciplinary science questions that need to be addressed. 

Senator DURBIN. And the solutions are not only standards and 

accreditation, but obviously resources dedicated—— 

Judge EDWARDS. Absolutely. Scientific research and the resources, yes. 

Senator DURBIN. And I would assume, as in my State of Illinois 

and others, it is the coordination of many disparate jurisdictions, 

law enforcement whether it is at the local level or the county level 

or State level, that they start sharing some resources here so they 

can have the very best. 

Judge EDWARDS. Right. 

Senator DURBIN. Now, I do not know if you happened to see a 

few weeks ago when ‘‘60 Minutes’’ had a program about eyewitness 

identification, and it was a very troubling situation where a woman 

literally identified her rapist and picked him out of a group of photographs, then picked him out of a line-up, and then went through 

the entire conviction of this man, and sat in the courtroom when 

he said, ‘‘I didn’t do it and found the man who did,’’ and said, ‘‘He 

is wrong, he did it.’’ And then, of course, the DNA tests proved he 

did not do it, and the person that he had suggested did it was ultimately identified as the culprit. 

It really kind of calls into question in my mind—I am trying to 

get to the bottom line here—about what we expect of our criminal 

law enforcement system in a democratic society. We want bad people to be punished and taken away so that they do not hurt us 

again—at least until they are rehabilitated, not to be released. We 

will get into that in another hearing. But this really brings into 

question—it seems to me like DNA is the one bright line, the one 

gold standard where we say this is objective—at least at the moment, we say it is objective—and this can give us some certainty, 

a yes or no answer. Everything else is more subjective and subject 

to human error. 

Judge EDWARDS. Yes. It is not just that some forensic disciplines 

rely on subjective analyses. The problem is that some disciplines 

are not supported by good scientific research to determine the accuracy of forensic practice, to determine the extent to which observer 

bias is in play, and to quantify sources of variability and possible 

error. 

The Committee listened to a number of experts. We asked for 

that research. It is not there. So it is not that these other disciplines cannot service us. It is that we have not ever supported 

them the way we supported DNA. 

It goes with our recommendation that you should give the labs 

autonomy so that the science side of this enterprise can operate the 

way it ought to operate. The law enforcement/police side of it is terribly important, and the labs serve them. But the labs should not 

be beholden to the law enforcement side, because labs should be 

about science. And if we supported the rest of the disciplines the 

way we supported DNA, the forensic science community would 

have an entirely different look. 

10 

Senator DURBIN. Do I have time for one more question? 

Chairman LEAHY. Take all the time you want. 

Senator DURBIN. Tell me about fingerprints, because I thought 

that that was kind of a solid, objective piece of evidence that we 

could rely on here. I think you raise questions about fingerprint 

analysis as well. 

Judge EDWARDS. The reason fingerprinting became a subject of 

so much conversation is because it has had a long history of being 

credited as being essentially infallible. And, indeed, as I mentioned 

in my opening statement, there were FBI experts who testified in 

Federal courts that there fingerprint analysis has a ‘‘zero error 

rate.’’ Well, there is no ‘‘zero error rate’’ in science. There is no such 

thing. But the courts were led to believe otherwise. And one court 

would cite it, and the next court would cite the prior court’s statement to that effect; it was most unfortunate. 

One of the most telling moments for me during the Committee’s 

hearings occurred when I heard the testimony of an expert fingerprint analyst who is a member of the Scientific Working Group on 

Friction Ridge Analysis, Study, and Technology. At one point in his 

testimony, he was asked what was the scientific basis for determining a match in prints in a situation when the examiner has 

only a partial or smudged print. The expert did not hesitate in conceding that the research has yet to be done. 

When there is no good scientific basis to support a forensic discipline, and when experts cannot quantify certainty and uncertainty, the testimony that they offer is too often exaggerated (as 

with the claims of ‘‘zero error rates’’); and sometimes testimony is 

even fabricated. You may have seen the recent story in the San 

Jose Mercury News reporting that, for years, San Jose police never 

told anyone when fingerprint technicians could not agree about 

whether a suspect’s prints matched those taken from the crime 

scene. Instead, the police department’s Central Identification Unit 

generated a report indicating that two technicians agreed that the 

suspect’s prints had been positively identified, while omitting that 

a third technician dissented. Stories like this are disheartening, to 

say at least. 

Senator DURBIN. Is that discoverable, incidentally? If I am criminal defense—— 

Judge EDWARDS. It should be. 

Senator DURBIN [continuing]. Lawyer—now do you think it is 

discoverable? 

Judge EDWARDS. It should be. It should be available. And that 

is one of the reasons that we have said in the report that the reporting requirement should be changed; there should be a national 

standard on how you report what it is that you found in the lab. 

There should be model lab reports. We do not mean to micromanage lab reports, but what we are suggesting is that there ought 

to be a national notion of the information that is included in these 

reports so that the judge and the jury are weighing the facts, all 

of the facts, fairly. And if a fingerprint examiner can only say, 

‘‘Based on good science, my quantifiable estimate is this’’—which is 

something less than 100 percent, that should be weighed against 

the other evidence presented. A fingerprint examiner should not, in 

my view, testify ethically that ‘‘I have a match,’’ when, in fact, 

11 

science says you do not know that you have a match. You know 

that you have some good indication—— 

Senator DURBIN. Probabilities. 

Judge EDWARDS. Right. 

Senator DURBIN. Thank you. 

Thanks, Mr. Chairman. 

Chairman LEAHY. I am going back—we all do this. I am going 

back in my own mind to some of the cases I tried, trying to remember just what was said there. I am thinking, in 2004, Judge, we 

passed the Justice for All Act that had combined new forensic programs and resources from law enforcement, especially for DNA 

testing, along with protections for defendants, even after conviction, to have access to DNA testing. I think a lot of it strengthened 

our whole system. That was in the area of DNA, but many key provisions of this landmark are supposed to expire this year. 

I think maybe what we should do is, if we go back to reauthorizing that, we should be looking at some of the recommendations 

in your report to see whether it should be done. I have seen the 

enormous cuts in the amount of money that is available for forensic 

science in the past few years. But you are saying that it is not just 

the money. You have got to have the training, you have got to have 

some basic standard—you can say you have got to have this much 

training—and experience, I suppose. 

Judge EDWARDS. We need a Federal entity, we think, that can 

oversee extramural research to get the universities interested in 

doing some serious scientific research, just like they were when we 

started our moves on DNA. That is the kind of work that we need, 

we need both private and public research and university institutes 

to do some serious work to back up what is going on in the forensic 

disciplines. 

Chairman LEAHY. Are there any universities that are concentrating on this today that you know of offhand? 

Judge EDWARDS. There are some, and there are some decent programs, and we list them—I do not want to speak out of turn. We 

list the ones that we know of in the report. But I think all of the 

good forensic science people with whom I have talked have agreed, 

that the number of good programs is nowhere near what it should 

be. We really need interdisciplinary research. It is not enough for 

the forensic disciplines to simply continue to train people in their 

limited practice realm because that means we are not considering 

whether that practice realm is valid and reliable. All you are doing 

is teaching a new group of young people to do the same things that 

we are not sure are valid and reliable. And so what we need is to 

bring multidisciplinary research to the fore to look at these forensic 

disciplines to see whether or not they really are valid and reliable. 

Chairman LEAHY. So it is not so much a problem of having honest, hard-working professionals—— 

Judge EDWARDS. No. 

Chairman LEAHY [continuing]. But having the scientific research 

to back them up and back them up by everything we know today, 

but also start providing everything we are going to know tomorrow 

and the next day. 

Judge EDWARDS. Exactly. Innovation, scientific innovation. I 

want to make it very clear we did not intend to damn the profesVerDate Nov 24 2008 10:38 Jan 21, 2010 Jkt 054304 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54304.TXT SJUD1 PsN: CMORC
12 

sionals who are working in the field. There are some terrific people 

working in the field, and we had a number of them on the Committee. So that is not the problem. The problem is, as they said 

back in 2005, they need help. 

Chairman LEAHY. So we have to strengthen—just from some 

notes I have here, we have to strengthen our forensic science system; we have to fund new research; we have to improve our labs, 

fully train our examiners, and have standards that one can look at. 

And if we do that, that improves our criminal justice system. 

Judge EDWARDS. Mandatory standards. 

Chairman LEAHY. Mandatory standards. 

Judge EDWARDS. Yes. 

Chairman LEAHY. I understand. Well, I have received written 

testimony from the American Society of Crime Laboratory Directors, the International Association for Identification, National Association of Medical Examiners. I understand the Innocence Project 

intends to submit written testimony. All of it is going to be made 

part of the record, and we will keep it open for a week for that. 

This Committee has done a great deal, for example, on ensuring 

the testing of rape kits when there has been an unacceptable backlog. I will use the personal privilege of being Chairman to notice 

that Rob and Debbie Smith are in the audience here today. They 

have done an enormous amount, given an enormous amount of 

their own time in bringing that law about, and I want to thank 

them. 

Well, Judge, I want to thank you. I will probably be getting back 

to you on this matter. I appreciate that you took the time. I suspect 

it turned out, once you got into it, it took a lot more time than you 

thought. But I am very, very thankful that you did. 

Judge EDWARDS. Thank you, Mr. Chairman. I appreciate the opportunity afforded me to speak on behalf of our committee. After 

more than two years of hard work, the committee realized that it 

was dealing with a very serious issue. We are pleased that careful 

attention is being given to the report. Thank you for allowing me 

to share my thoughts with you. 

Chairman LEAHY. Thank you, and we will keep the record open 

for a week. We stand in recess. 

[Whereupon, at 10:43 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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