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In the USA, the National Research Council (NRC) Committee on Identifying the Needs of the Forensic Sciences Community issued a lengthy report based on several years of hearings and study. The report contained 13 major recommendations covering a wide spectrum of issues and disciplines within the forensic sciences. The NRC is an arm of the National Academies, which are often regarded as the most prestigious and authoritative bodies on matters of science, medicine, and engineering. The NRC has previously issued reports on forensic DNA technology (NRC 1992, 1996), but had never undertaken a comprehensive evaluation of forensic sciences before.
The NRC report was directed by the US Congress, prompted by a number of factors and developments. Two important ones were the advent of DNA profiling of biological evidence and a major US Supreme Court decision in 1993 (Daubert et ux. etc. 1993) setting down the criteria for the admissibility of scientific evidence in the courts. Daubert was the first case on admissibility of scientific evidence ever considered by the Supreme Court. The decision emphasized that admissibility was to depend on a sound scientific basis for the proffered evidence.
DNA typing was always considered to have a sound scientific basis, and so became a sort of “paradigm” for the rest of the forensic sciences to follow. Almost everyone, critics and defenders alike, agreed that the forensic sciences were under-resourced. Thus, was born the idea that a comprehensive study was needed and that NRC was the body to conduct it. Authorized in 2005, the study was completed and the report issued in 2009. This research paper will mainly discuss the NRC report on forensic science, highlighting the main recommendations, some of the background leading up to it, and some of the reaction to it.
Background And Introduction
For almost 200 years, forensic laboratory and medicolegal services have been provided by government agencies. In the nineteenth century, most of these services were provided by medicolegal institutes in continental Europe and in a few of the larger cities in the US Forensic laboratories, as we know them today, developed during the twentieth century. In the years before the Second World War, several forensic laboratories were established in the USA. They were housed within the Federal Bureau of Investigation (FBI) and in some larger municipal police departments, such as the Los Angeles Police Department. With time, state and county forensic-science labs were established. The Omnibus Crime Control and Safe Streets Act of 1968 (P.L. 90-351) provided a considerable amount of funding for forensic laboratory expansion, mainly through block grants to the various states. More recently, considerable federal funding for the support and expansion of DNA technology in forensic labs has been available.
This research paper will mainly discuss the NRC report on forensic science, some of the background leading up to it, and some of the reaction to it. Another report, on the forensic science services (FSS) in the UK, will be addressed in another contribution. Unlike the US report, the emphasis on the British report (from a Committee of the House of Commons) is on the implications of the government’s plan to shut down the forensic science service (FSS), essentially ending government-supported forensic-science services in the UK. Recently, Ross commented on the NRC report from the standpoint of the forensic sciences in Australia and New Zealand (Ross 2011). He was looking at the forensic sciences in those countries through the lens of the relevant issues considered by the NRC committee that produced the report in the USA. Of special interest in this treatment is the fact that Australia has a National Institute of the kind recommended by the NRC report for the USA.
The National Research Council (NRC) of the National Academies is a highly prestigious body that assembles expert panels from the scientific, medical, and technological world to look at difficult or controversial questions and make recommendations. This is the first time the NRC has comprehensively examined forensic sciences and services, and its findings and recommendations have been widely cited and quoted. The US Congress, various executive branch agencies, and the courts are likely to rely on them.
As noted, a number of factors coalesced to prompt Congress to commission the NRC report. In the Daubert decision, the US Supreme Court emphasized the need for the “scientific” results proffered as evidence in a courtroom to be based on solid scientific principles gathered through hypothesis testing. The court emphasized the concept of empirical testing of a potential falsifiable hypothesis, a notion set forth by Popper (1989). In subsequent decisions (General Electric v Joiner 1997; Kumho Tire v Carmichael 1999), the court extended these principles to “technological” evidence elicited by way of expert testimony. In effect, the “Daubert trilogy,” as the three cases are sometimes called, modified and sharpened the focus of Rule 702 of the
Federal Rules of Evidence. The Federal Rules of Evidence are established by the federal judiciary and govern the federal courts. There are several of these rules that pertain to forensic science and expert witnesses, but 702 is probably the most critical one. Rule 702, Testimony by Expert Witnesses, states: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
Until Daubert, an older 1923 District of Columbia appellate court case called Frye v. US was widely used as the standard for scientific evidence admissibility (Frye 1923). Under Frye, the determinant was “general acceptance in the scientific community” to which the subject area belonged. There were legal debates through the years over what constituted “general acceptance” and over the definition of the relevant “scientific community.” Daubert set down six criteria that a judge could use in deciding on admissibility: (1) Is the proposition testable? (2) Has it been tested? (3) Are there accepted standards? (4) Has there been peer review and/or publication? (5) Are the procedures generally accepted? (6) Does the procedure have a known error rate, and if so, what is it? The decision made the judge the “gatekeeper.” He/she has considerable latitude in using the stated criteria to decide on admissibility. The Court has made clear these criteria do not constitute a “checklist.” Strictly speaking, the US Supreme Court decision only applied to the federal courts, but many states (around 30 as of 2010) have adopted it (or its basic principles) as well. Those that have not adopted it continue to use the Frye precedent, or a modified version of it. In the wake of Daubert, there was considerable commentary that DNA typing and profiling constituted a sort of paradigm of proper scientific method, and other forensic disciplines should be held to similar scientific standards. Criticism of the pattern evidence specialties, handwriting comparison, fingerprint comparison, tool-mark and firearms identification, and evidence such as tire or footwear impressions and bite marks, has been especially pointed in this regard. There was scant discussion of chemistry-based specialties, such as controlled substance identification, toxicology, and forensic chemistry. Concerns were also raised about measurement of error rates, transparency concerning the accuracy and precision of tests, and validation of procedures.
In the 1980s, the FBI, in collaboration with the forensic labs doing DNA testing at the time, had assembled a peer standard-setting body called the Technical Working Group on DNA Analysis Methods (TWGDAM). The goals of TWGDAM included standardizing and validating methods and choosing consensus protocols that would enable smooth operation of the DNA database (called CODIS, for Combine DNA Indexing System). Most people would agree that this TWG worked well and realized its objectives. For a time, the TWGDAM was supplanted by a committee known as the DNA Advisory Board (DAB), established by the DNA Identification Act of 1994 (P.L. 103-322). This Board was disbanded by law about 5 years later, and the Technical Working Group on DNA came back into existence, now as the Scientific Working Group on DNA Analysis Methods (SWGDAM), to establish and monitor consensus standards in DNA. Building on the TWGDAM model, the National Institute of Justice assisted in forming a number of other TWGs, and the FBI formed additional SWGs in this period. The purpose was to establish consensus standards in various forensic-science disciplines. There are now quite a number of these committees.
The exoneration of over 250 convicted felons in 34 states prompted by investigations carried out by the Innocence Project through DNA analysis (Innocence Project visited 9/12/11) shed some harsh light on practices in the criminal justice system that had led to the original convictions. In some cases, these included poor or unacceptable forensic lab practices (Garrett 2008; Collins and Jarvis 2008). Note that the extent to which unacceptable forensic practices contributed to the wrongful convictions in these cases has been challenged (Collins and Jarvis 2008). Reports of incompetent scientists and even fraud by people working in forensic laboratories and on forensic cases, and of almost complete meltdowns in a few laboratories, also came to the fore (www.corpus-delicti.com/forensic_fraud.html, 2011).
In this climate, there was also concern about the limited funding available for forensicscience services, the limited funds available for forensic-science-related research, and how forensic-science academic programs and education fit into the overall picture. A census of the public forensic science laboratories in 2002 (Peterson and Hickman 2005) indicated that the labs were encountering serious backlogs due to increased workloads and decreased resources. Looking at the calendar year 2002, forensic labs had about 289,900 cases in backlog as of January 1, received nearly 2,707,000 new cases during the year, completed over 2,495,000 of them, and ended the year with a backlog of over 501,000 cases. A follow-up study using almost identical methodology for 2009 (Durose et al. 2012) showed that labs started the year with over 1,131,000 cases backlogged and ended it with almost 1,154,000 despite having worked 3,632,000 cases.
All these forces and developments persuaded Congress that forensic science needed some review and attention from the federal government, and thus, in late 2005, the US Congress authorized the National Academy of Sciences to conduct the inquiry that led to the NRC report. The report was published in 2009.
The NRC Report
In charging the National Academy to conduct its inquiry, Congress stated that
While a great deal of analysis exists of the requirements in the discipline of DNA, there exists little to no analysis of the remaining needs of the community outside of the area of DNA. Therefore… the Committee directs the Attorney General to provide [funds] to the National Academy of Sciences to create an independent Forensic Science Committee. This Committee shall include members of the forensics community representing operational crime laboratories, medical examiners, and coroners; legal experts; and other scientists as determined appropriate.
This Forensic Science Committee was to:
- Assess the present and future resource needs of the forensic science community, to include State and local crime labs, medical examiners, and coroners;
- Make recommendations for maximizing the use of forensic technologies and techniques to solve crimes, investigate deaths, and protect the public;
- Identify potential scientific advances that may assist law enforcement in using forensic technologies and techniques to protect the public;
- Make recommendations for programs that will increase the number of qualified forensic scientists and medical examiners available to work in public crime laboratories;
- Disseminate best practices and guidelines concerning the collection and analysis of forensic evidence to help ensure quality and consistency in the use of forensic technologies and techniques to solve crimes, investigate deaths, and protect the public;
- Examine the role of the forensic community in the homeland security mission;
- [Examine] interoperability of Automated Fingerprint Information Systems (AFIS) and
- Examine additional issues pertaining to forensic science as determined by the Committee
There were 17 members of the Committee. Two were forensic pathologists, four were academic or practitioner representatives of forensic science, three were attorneys (one cochairperson was a federal judge), and the remainder were science and engineering professors. They held a number of meetings and received both written and verbal comments from a wide variety of interested parties and representatives of interested organizations.
The report, issued in February of 2009, has 11 chapters. The first four concern defining forensic science, making a case for the integration of different services, the legal environment around admissibility of forensic-science evidence, and a discussion of scientific method and data interpretation. Next, some of the forensic-science subdisciplines are described. For purposes of this inquiry and report, forensic science was construed to include toxicology, firearms and toolmarks, questioned documents, trace evidence, controlled substances, biological and serology screening (including DNA analysis), fire debris and arson analysis, impression evidence, blood pattern analysis, crime scene investigation, medicolegal death investigation, and digital evidence, following NIJ 2006.
The report is summarized and discussed below under headings corresponding to the chapter subjects. Some of these chapters contained recommendations, while others did not. The major recommendations are stated in their entirety and are integrated into the chapter headings in which they occur in the original report.
The Forensic-Science Community And The Need For Integrated Governance
One of the problems identified is the breadth of scientific, technical, and practice specialties that fall under “forensic science” as broadly construed. From molecular biology, chemistry, and physics, to medicine, nursing, pharmacology, and toxicology, to fingerprints and firearms, to crime scene investigation, the umbrella covers a variety of practitioners from Ph.D.-level scientists to police personnel trained in crime scene processing and investigation. Any proposal for uniformity covering such a wide spectrum of areas and interests presents a challenge, to say the least.
Public-sector lab and medicolegal services are also delivered at different levels of government, from federal to municipal, with correspondingly different resources. Some state laboratories primarily serve local law enforcement agencies, because that is where the majority of criminal cases are investigated. There are private, for-profit laboratories in the USA. It is fair to say that more private testing labs have grown up for DNA analysis because the need was there. A number of public laboratories have contracted with private labs to conduct the DNA profiling for data banking; to work old, cold, and backlogged cases; and in some cases even to work current cases as a way of catching up. In addition, there are many “identification” units or “fingerprint” units in law enforcement agencies that are not part of larger forensic labs.
Lack of adequate funding is a theme running throughout the forensic lab and medicolegal services community. This has led to chronic backlogs in the laboratories as noted above. The National Institute of Justice (NIJ), which funds virtually all forensic-science research, has managed the infusion of millions of dollars to the public-sector labs and medical examiner offices over the past several years to improve their DNA programs, to help investigate and hopefully solve cold cases, and for general service improvements. The Coverdell program is the main vehicle for laboratory improvement funding, part of which is competitive. The program has helped materially, but has not solved the underlying resources problem. Much more research is needed in forensic science than is able to be funded with NIJ’s current resources. NIJ’s budget is minimal if compared with that of the National Institutes of Health (NIH) or the National Science Foundation (NSF), and it is generally able to award 20 or 30 grants a year for forensic-science research, not including Coverdell or President’s DNA Initiative funds. In fiscal year 2011 (the year from September 1, 2010, to August 31, 2011), for example, NIJ awarded about 385 grants and cooperative agreements totaling over $200 million. Only a small part of these funds was given for forensic-science research as such. NIJ also manages the activities of several funded centers through its Forensic Resource Network. The research funds administered by the Office of Science and Technology are competitive, and expert panels review the applications. NIJ recently announced it will develop review panels whose members serve multi-year terms, similar to NIH’s study sections, instead of constituting new panels for each review cycle. It is to be noted that the FBI maintains an active research and development section of its Laboratory Division that involves in-house scientists and collaborations with university and other government agency scientists. The National Institute of Standards and Technology (NIST) is also involved in some forensic-science activities that fall under its overall mission, such as devising standard reference materials. To try and address both coordination and oversight of this myriad of activities, the Committee recommended that a National Institute of Forensic Science be created.
Recommendation 1. To promote the development of forensic science into a mature field of multidisciplinary research and practice, founded on the systematic collection and analysis of relevant data, Congress should establish and appropriate funds for an independent federal entity, the National Institute of Forensic Science (NIFS). NIFS should have a full-time administrator and an advisory board with expertise in research and education, the forensic science disciplines, physical and life sciences, forensic pathology, engineering, information technology, measurements and standards, testing and evaluation, law, national security, and public policy. NIFS should focus on:
(a) Establishing and enforcing best practices for forensic science professionals and laboratories;
(b) Establishing standards for the mandatory accreditation of forensic science laboratories and the mandatory certification of forensic scientists and medical examiners/forensic pathologists—and identifying the entity/entities that will develop and implement accreditation and certification;
(c) Promoting scholarly, competitive peer reviewed research and technical development in the forensic science disciplines and forensic medicine;
(d) Developing a strategy to improve forensic science research and educational programs, including forensic pathology;
(e) Establishing a strategy, based on accurate data on the forensic science community, for the efficient allocation of available funds to give strong support to forensic methodologies and practices in addition to DNA analysis;
(f) Funding state and local forensic science agencies, independent research projects, and educational programs as recommended in this report, with conditions that aim to advance the credibility and reliability of the forensic science disciplines;
(g) Overseeing education standards and the accreditation of forensic science programs in colleges and universities;
(h) Developing programs to improve understanding of the forensic science disciplines and their limitations within legal systems; and
(i) Assessing the development and introduction of new technologies in forensic investigations, including a comparison of new technologies with former ones.
This recommendation sits at the core of the report, and many of the other recommendations are conditioned upon its implementation. This NIFS would be a new breed of federal agency, having research and educational support as well as oversight and enforcement powers and responsibilities. The Committee elaborated what it believed to be minimal criteria for a federal coordinating agency. They noted they had considered NSF and NIST, but did not think either met the criteria. NIJ was rejected because it is part of the US Dept. of Justice whose primary mission is law enforcement and prosecution. The Committee recognized that budgetary and other constraints could delay or even prevent the implementation of this core recommendation. NIJ argued in its response to the report that it was structured to handle the tasks described and that many of its initiatives followed the recommendations (NIJ 2011).
There have been two legislative initiatives in the US Congress that directly responded to this recommendation (THOMAS – Library of Congress). One, a bill in the US Senate (S132 introduced 1/25/11 by Sen. Patrick Leahy of Vermont), the Criminal Justice and Forensic Science Reform Act, contains provisions to accomplish many of the recommendations in the NRC report, though not using the same language and terminology. Senate Bill S3378 (and an identical bill in the House, HR 6106) set out to accomplish many of the same goals but differ from S132 in the administrative structure. Sen. Leahy’s bill would create an Office of Forensic Science within the US Attorney General’s Office and an appointed Board to oversee all the proposed activities. Sen. Rockefeller’s bill would create a National Forensic Science Coordinating Office at NSF. There would be substantial involvement from NIST in the creation of standards. Neither of these bills has progressed out of committee, and there does not appear to be much chance that either of them will be enacted.
The Admission Of Forensic-Science Evidence In Litigation
The report has a lengthy, detailed, and informative review of the transition from Frye to Daubert criteria for admissibility and the evolution of Federal Rule 702 (which many state courts follow, along with the federal courts). This subject was sufficiently discussed above for purposes of this summary. A number of decisions on the admissibility of different categories of evidence are discussed. An important point recognized by the Committee is that courts and admissibility rulings are not the appropriate mechanism for establishing solid scientific underpinnings for the forensic sciences; that must be done by carefully controlled research.
The admissibility discussion leads naturally to the next chapter of the report, concerning scientific principles and data interpretation.
The Principles Of Science And Interpreting Scientific Data
This research paper discusses scientific method and the principles of method development and validation that characterize the traditional sciences. In the view of the Committee, these must be followed by forensic sciences. There is a review of the scientific method and of the subsequent validation of scientific findings and results. Emphasis is placed on the validation of methods and of the methods used by forensic sciences to classify/ identify substances, to associate/dissociate evidentiary items with potential sources, and sometimes to attempt to reconstruct aspects of past events based on the physical evidence record. Method validation should be, in the view of the committee, published in peer-reviewed literature.
It is suggested that the principles of ISO 17025 for testing laboratories be used as the basis for forensic method validation. These principles include calibration of reference standards and materials, comparison of results on one method with another, interlaboratory comparisons, systematic assessment of factors that influence results, and assessment of uncertainty. Many forensic labs are now using ISO 17025 principles as the basis for accreditation. The QA (quality assurance) guidelines developed for DNA analysis by TWGDAM/SWGDAM (discussed above) are enumerated as a model. There are now many TWGs/SWGs for different categories of evidence that have established consensus principles for the analysis and interpretation of the particular type of evidence (e.g., SWGDRUG, drug and controlled substance identification and quantitation analysis; SWGFAST, fingerprints and other friction ridge patterns; SWGGUN, toolmark and firearms identification; SWGMAT, materials such as fibers).
It is noted that forensic labs should be reporting measurement error with results, and keeping track of error rates to the extent possible. Techniques and comparisons need to be subjected to blind testing to ferret out the rate of false positives and false negatives.
Bias and sources of bias, particularly as applicable to comparisons where “source/not source” conclusions are reached, are discussed. Context bias and observer bias have been discussed more recently in the context of forensic-science examinations (Bias, Saks et al. 2003; Crime Lab 2009b; Thornton 2010). The larger problem outlined by those critical of forensic sciences contains the “law-enforcement context bias” as well. It has to do with the effects of unconscious influences of bias on an observer seeing, recording, and interpreting data.
Descriptions Of Some Forensic-Science Disciplines
This research paper discusses the forensic analysis of several categories of evidence, including biological, controlled substances, friction ridge pattern analysis—usually fingerprints, other patterns such as footwear, tool-marks and firearms, hairs, fibers, questioned documents, paint, explosives residues, fire debris, odontology, and bloodstain patterns—and digital media analysis. Each one is described with respect to its sample data and collection, the methods of analysis employed, the scientific interpretation and reporting of results, and the committee’s conclusions.
There is broad variety across the disciplines regarding techniques, methods, reliability, error rate assessments, reporting language and guidelines, underlying research, and the educational background of practitioners.
Improving Methods, Practice, And Performance In Forensic Science
This research paper focuses on improvements in practice across disciplines, with a view toward bringing more scientific approaches and methods to bear, particularly but not exclusively, in the pattern evidence comparison areas. Recommendation 2. The National Institute of
Forensic Science (NIFS), after reviewing established standards such as ISO 17025, and in consultation with its advisory board, should establish standard terminology to be used in reporting on and testifying about the results of forensic science investigations. Similarly, it should establish model laboratory reports for different forensic science disciplines and specify the minimum information that should be included. As part of the accreditation and certification processes, laboratories and forensic scientists should be required to utilize model laboratory reports when summarizing the results of their analyses.
Although it may at first sound trivial, terminology is a very critical issue in forensic sciences, especially the words and phrases forensic practitioners use as “terms of art.” Criminalists, for example, use the word “identification” to mean placing something into its proper class or category, such as “the stain represented as item # 6 was identified as human blood” or “item # 9 was identified as cat hair.” Fingerprint and firearms identification specialists, on the other hand, use “identification” to mean “individualization,” such as “the developed latent print represented as item # 8 was identified as the left middle fingerprint of John Doe” or “the bullet represented as item # 4 was fired by the 9 mm semiautomatic pistol, item #2.” We also talk about “identifying the human remains as that of Jane Doe.” In cases where there are comparisons made between a known specimen and an evidentiary one, the terminology issue can become even more confusing. Suppose a 13-locus DNA profile of the male fraction from a vaginal swab is identical in every respect to the profile of the suspect. One could write or testify that “the profiles match,” or that “the suspect could not be excluded as the source of the semen,” or that “the suspect and evidence profiles are alike in every respect that was tested and compared.” In a DNA comparison like this, these statements would be accompanied by an estimate of the probability of chance duplication. One could construct similar examples from paint comparisons, hair or fiber comparisons, etc. The issue here is whether these statements mean the same thing to a trier of fact. They probably do not. It was thus recommended that a standardized terminology be adopted and used in laboratory reports and in testimony, so that given the same results, the wording is always the same. It is understood that there might have to be a certain amount of within-discipline terminology standardization, that is, trace analysts might not be able to use exactly the same terminology and vocabulary as a fingerprint or firearms examiner.
The Committee noted that even if some or all of its core recommendations were ignored or delayed because of funding or political considerations, the terminology issue was one that should receive immediate attention. Another one was conformity of lab reports with external standards such as ISO 17025 (2005), where methods, materials, procedures, results, and conclusions are recorded, along with sources and measurements of uncertainty and levels of confidence where appropriate.
Recommendation 3. Research is needed to address issues of accuracy, reliability, and validity in the forensic science disciplines. The National Institute of Forensic Science (NIFS) should competitively fund peerreviewed research in the following areas:
(a) Studies establishing the scientific bases demonstrating the validity of forensic methods.
(b) The development and establishment of quantifiable measures of the reliability and accuracy of forensic analyses. Studies of the reliability and accuracy of forensic techniques should reflect actual practice on realistic case scenarios, averaged across a representative sample of forensic scientists and laboratories. Studies also should establish the limits of reliability and accuracy that analytic methods can be expected to achieve as the conditions of forensic evidence vary. The research by which measures of reliability and accuracy are determined should be peer reviewed and published in respected scientific journals.
(c) The development of quantifiable measures of uncertainty in the conclusions of forensic analyses.
(d) Automated techniques capable of enhancing forensic technologies.
The wide range of different disciplines comprising “forensic science” comes with an equally wide range of bases for accuracy, reliability, requirements for validation of a technique, etc. The recommendation calls for research to quantitate reliability measures. It also calls for examiners to provide quantitative statements of measurement uncertainty where possible. This recommendation also implies that the research should try to get at error rates for different techniques and procedures. It is designed primarily to abstract best practices from the research data.
The committee were especially concerned about disciplines like fingerprint comparison, where there have been claims of “100 % accuracy” or “zero error rate.” The Brandon Mayfield case discussed just below was a stark reminder of the possibility of misidentifications, even by highly experienced examiners. There has been lengthy discussion by lawyers, law professors, and fingerprint examiners around these questions (Koehler 2008; Haber and Haber 2008; Mnookin 2008; Dror et al. 2006; Dror and Charlton 2006).
Recommendation 4. To improve the scientific bases of forensic science examinations and to maximize independence from or autonomy within the law enforcement community, Congress should authorize and appropriate incentive funds to the National Institute of Forensic Science (NIFS) for allocation to state and local jurisdictions for the purpose of removing all public forensic laboratories and facilities from the administrative control of law enforcement agencies or prosecutors’ offices. Bias on the part of forensic examiners as an intrinsic result of being administratively located within law enforcement agencies or prosecutors’ offices has been discussed for years. The problem may be made even more acute if the examiners are themselves agents of law enforcement. The poster-child case for this viewpoint is Brandon Mayfield (U.S. DOJ Inspector General 2006). The details are complicated, but briefly, FBI examiners mistakenly identified latent fingerprints from the Madrid, Spain, train bombing incident of March 11, 2004, as those of Brandon Mayfield, a Muslim US citizen living in Oregon. Critics point to this case as a clear example of context bias on the part of the FBI analysts. But critics also argue that this sort of bias can be more subtle, that analysts working in a law enforcement environment are bound to be influenced toward that viewpoint, and that objectivity is not possible. Many forensic scientists and lab administrators do not agree, and there are published discussions on both sides of the question.
Recommendation 5. The National Institute of Forensic Science (NIFS) should encourage research programs on human observer bias and sources of human error in forensic examinations. Such programs might include studies to determine the effects of contextual bias in forensic practice (e.g., studies to determine whether and to what extent the results of forensic analyses are influenced by knowledge regarding the background of the suspect and the investigator’s theory of the case). In addition, research on sources of human error should be closely linked with research conducted to quantify and characterize the amount of error. Based on the results of these studies, and in consultation with its advisory board, NIFS should develop standard operating procedures (that will lay the foundation for model protocols) to minimize, to the greatest extent reasonably possible, potential bias and sources of human error in forensic practice. These standard operating procedures should apply to all forensic analyses that may be used in litigation.
Strengthening Oversight Of Forensic-Science Practice
The four recommendations growing out of the “oversight” have to do with quality programs, accreditation, certification, proficiency testing, code of ethics, and further research into the quantitation of measurement variability and error. Recommendation 6. Congress should authorize and appropriate funds to NIFS to work with the National Institute of Standards and Technology (NIST), in conjunction with government laboratories, universities, and private laboratories, and in consultation with Scientific Working Groups, to develop tools for advancing measurement, validation, reliability, information sharing, and proficiency testing in forensic science and to establish protocols for forensic examinations, methods, and practices. Standards should reflect best practices and serve as accreditation tools for laboratories and as guides for the education, training, and certification of professionals. Upon completion of its work, NIST and its partners should report findings and recommendations to NIFS for further dissemination and implementation.
Recommendation 7. Laboratory accreditation and individual certification of forensic science professionals should be mandatory, and all forensic science professionals should have access to a certification process. In determining appropriate standards for accreditation and certification, the National Institute of Forensic Science (NIFS) should take into account established and recognized international standards, such as those published by the International Organization for Standardization (ISO). No person (public or private) should be allowed to practice in a forensic science discipline or testify as a forensic science professional without certification. Certification requirements should include, at a minimum, written examinations, supervised practice, proficiency testing, continuing education, recertification procedures, adherence to a code of ethics, and effective disciplinary procedures. All laboratories and facilities (public or private) should be accredited, and all forensic science professionals should be certified, when eligible, within a time period established by NIFS.
Recommendation 8. Forensic laboratories should establish routine quality assurance and quality control procedures to ensure the accuracy of forensic analyses and the work of forensic practitioners. Quality control procedures should be designed to identify mistakes, fraud, and bias; confirm the continued validity and reliability of standard operating procedures and protocols; ensure that best practices are being followed; and correct procedures and protocols that are found to need improvement.
Recommendation 9. The National Institute of Forensic Science (NIFS), in consultation with its advisory board, should establish a national code of ethics for all forensic science disciplines and encourage individual societies to incorporate this national code as part of their professional code of ethics. Additionally, NIFS should explore mechanisms of enforcement for those forensic scientists who commit serious ethical violations. Such a code could be enforced through a certification process for forensic scientists.
Education And Training In Forensic Science
The committee noted that major strides had been made recently in bringing some standardization to forensic-science academic programs through the Forensic Science Education Program Accreditation Commission (FEPAC). The FEPAC accreditation program and guidelines grew out of a NIJ-supported Technical Working Group for Education and Training in Forensic Science (NIJ 2004). There are still many programs offered, however, that are not FEPAC accredited (FEPAC accreditation is voluntary), and they vary in their uniformity and science content. For graduate programs in particular, more funding should be available if there is to be a proper research base developed.
Another issue is forensic-science education for attorneys and judges. More interactions and information exchange are encouraged. Law schools are in a position to enhance this interaction. In disciplines that require training as well as education, a firm foundation in scientific principles is recommended for both the educational and the training components.
Recommendation 10. To attract students in the physical and life sciences to pursue graduate studies in multidisciplinary fields critical to forensic science practice, Congress should authorize and appropriate funds to the National Institute of Forensic Science (NIFS) to work with appropriate organizations and educational institutions to improve and develop graduate education programs designed to cut across organizational, programmatic, and disciplinary boundaries. To make these programs appealing to potential students, they must include attractive scholarship and fellowship offerings. Emphasis should be placed on developing and improving research methods and methodologies applicable to forensic science practice and on funding research programs to attract research universities and students in fields relevant to forensic science. NIFS should also support law school administrators and judicial education organizations in establishing continuing legal education programs for law students, practitioners, and judges.
Medical Examiner And Coroner Systems: Current And Future Needs
Various problems exist in the USA with respect to death investigation, and this research paper addressed them. There are two systems: medical examiner and coroner. Medical examiners are forensic pathologists, but there are few medical examiner jurisdictions compared with coroner jurisdictions. Coroners generally have little or no formal medical or forensic training. This situation creates a patchwork quilt, and there is considerable lack of uniformity across jurisdictions. The situation also inhibits the collection of accurate death statistics for deaths that come under forensic investigation.
There is now a Scientific Working Group for Medicolegal Death Investigation (SWGMDI), and it has already issued several reports. A recent draft report shows that there are not nearly enough forensic pathologists in the USA to meet current needs.
Recommendation 11. To improve medico-legal death investigation:
(a) Congress should authorize and appropriate incentive funds to the National Institute of Forensic Science (NIFS) for allocation to states and jurisdictions to establish medical examiner systems, with the goal of replacing and eventually eliminating existing coroner systems. Funds are needed to build regional medical examiner offices, secure necessary equipment, improve administration, and ensure the education, training, and staffing of medical examiner offices. Funding could also be used to help current medical examiner systems modernize their facilities to meet current Centers for Disease Control and Prevention-recommended autopsy safety requirements.
(b) Congress should appropriate resources to the National Institutes of Health (NIH) and NIFS, jointly, to support research, education, and training in forensic pathology. NIH, with NIFS participation, or NIFS in collaboration with content experts, should establish a study section to establish goals, to review and evaluate proposals in these areas, and to allocate funding for collaborative research to be conducted by medical examiner offices and medical universities. In addition, funding, in the form of medical student loan forgiveness and/or fellowship support, should be made available to pathology residents who choose forensic pathology as their specialty.
(c) NIFS, in collaboration with NIH, the National Association of Medical Examiners, the American Board of Medico-legal Death Investigators, and other appropriate professional organizations, should establish a Scientific Working Group (SWG) for forensic pathology and medico-legal death investigation. The SWG should develop and promote standards for best practices, administration, staffing, education, training, and continuing education for competent death scene investigation and postmortem examinations. Best practices should include the utilization of new technologies such as laboratory testing for the molecular basis of diseases and the implementation of specialized imaging techniques.
(d) All medical examiner offices should be accredited pursuant to NIFS endorsed standards within a timeframe to be established by NIFS.
(e) All federal funding should be restricted to accredited offices that meet NIFSendorsed standards or that demonstrate significant and measurable progress in achieving accreditation within prescribed deadlines.
(f) All medico-legal autopsies should be performed or supervised by a board certified forensic pathologist. This requirement should take effect within a timeframe to be established by NIFS, following consultation with governing state institutions.
Automated Fingerprint Identification Systems
The primary issue under this heading is automated fingerprint identification system (AFIS) interoperability. There are several commercial AFIS system vendors, and the software and search algorithms are proprietary. Different jurisdictions have different systems, making it difficult to have a fully nationally integrated database and search system.
Recommendation 12. Congress should authorize and appropriate funds for the National Institute of Forensic Science (NIFS) to launch a new broad-based effort to achieve nationwide fingerprint data interoperability. To that end, NIFS should convene a task force comprising relevant experts from the National Institute of Standards and Technology and the major law enforcement agencies (including representatives from the local, state, federal, and, perhaps, international levels) and industry, as appropriate, to develop:
(a) Standards for representing and communicating image and minutiae data among Automated Fingerprint Identification Systems. Common data standards would facilitate the sharing of fingerprint data among law enforcement agencies at the local, state, federal, and even international levels, which could result in more solved crimes, fewer wrongful identifications, and greater efficiency with respect to fingerprint searches; and
(b) Baseline standards—to be used with computer algorithms—to map, record, and recognize features in fingerprint images, and a research agenda for the continued improvement, refinement, and characterization of the accuracy of these algorithms (including quantification of error rates).
Homeland Security And The Forensic-Science Disciplines
The Committee briefly explored potential roles of forensic sciences in homeland security, as that was part of its charge. In doing so, it noted that these suggestions were preliminary and could comprise a separate study.
Forensic-science involvement in homeland security situations differs from its involvement in criminal cases. There needs to be federal agency—local laboratory coordination, earlier involvement in the investigations to help direct them, and specialized technical expertise having to do with chemical, biological, or nuclear threats. Digital forensic sciences are expected to have a major role in antiterrorism efforts. Recommendation 13. Congress should provide funding to the National Institute of Forensic Science (NIFS) to prepare, in conjunction with the Centers for Disease Control and Prevention and the Federal Bureau of Investigation, forensic scientists and crime scene investigators for their potential roles in managing and analyzing evidence from events that affect homeland security, so that maximum evidentiary value is preserved from these unusual circumstances and the safety of these personnel is guarded. This preparation also should include planning and preparedness (to include exercises) for the interoperability of local forensic personnel with federal counterterrorism organizations.
The Committee’s report and recommendations have gotten a mixed reception in the forensic science and legal worlds. Some organizations have issued official or public responses or reactions to the report (ASCLD 2009; SWGFAST 2009; AAFS 2009; SWGDE 2009; White House OSTP 2010; Suresh 2012). So have various commentators and groups, some from forensic science and others from the legal profession (Crime Lab Report 2009a; Budowle et al. 2009; Kaye 2010; Chatman 2009; Koehler et al. 2011).
Some of the organizations generally supported the principles on which the NRC recommendations were based and stated that they, in effect, stood ready to be part of the forward progress toward better forensic science. Most supported the call for more resources. Some objected to certain recommendations and criticisms. SWGFAST, representing one of the disciplines that was most criticized in the report, disagreed with many of the conclusions about the insufficiency of a scientific basis for friction ridge comparisons. Some disagreed with the recommendation of separating forensic laboratories from law enforcement administrations, suggesting that the apparent intrinsic bias it represented was not in fact necessarily present and that the relationship did not automatically cause bias.
Not everyone agreed with the recommendation to form the NIFS. Some thought the necessary resources could be assembled from and within existing agencies that already have involvement in forensic-science research and support. NIJ, which was explicitly excluded by the NRC report as an appropriate setting for NIFS, responded with a lengthy justification for why it was actually the most appropriate place. NSF has stated, through the testimony of its director on the Rockefeller bill, that it stands ready to act as the primary federal agency for forensic science if the bill should be enacted.
The harshest critics of forensic science from academic settings and law schools take the report as a vindication of their long-held beliefs about and criticisms of the sorry state of forensic science.
Some have seen the report as a blueprint for progress and positive change, even if all the recommendations cannot be implemented (especially see Kaye 2010; Koehler et al. 2011).
Given the current state of the US economy and the concern with federal spending, it does not seem at all likely that the NIFS will come to exist. The failure of two congressional bills aimed at the NRC Committee’s primary goals to emerge from Committee is an indication that big, new, comprehensive legislation focused on improving forensic science is not likely. The majority of forensic-science laboratories are operated by local or state government. It should also be understood that there are significant limitations on what the federal government can do to regulate their activities. Another unfortunate consequence of the economic recession is that state and local governments find themselves under extreme pressure to streamline services and reduce expenses. This situation cannot be seen as favorable for any increase in most forensic-science lab resources and could even mean that resources will decline.
Notwithstanding the different points of view and parochial interests of various parties and organizations, the report must be seen as a milestone in the history of forensic sciences in the USA. Never before has there been such a large, comprehensive look at the forensic sciences by anyone, and this one was done by the prestigious NRC. There is validation of and support for the TWG/SWG model, and those organizations will continue to make progress. There may be increased federal funding for forensic-science research and for operational improvements. Some of the recommendations will be implemented incrementally in and by the profession, even without a centrally focused federal forensic-science entity. The report will likely stand as the primary reference document for any discussion of forensic science laboratory improvement or funding for years to come.
- AAFS [American Academy of Forensic Sciences] (2009) Position statement in response to the NAS “forensic needs” report, 4 Sept 2009
- ASCLD [American Society of Crime Laboratory Directors] (2009) Comments on the release of the NAS report on forensic science, 19 Feb. 2009
- Budowle B, Bottrell MC, Bunch SG et al (2009) A perspective on errors, bias, and interpretation in the forensic sciences and direction for continuing advancement. J Forensic Sci 54(4):798–809
- Chatman Q (2009) How scientific is forensic science? Champion, Aug 2009
- Collins J, Jarvis J (2008) The wrongful conviction of forensic science. Crime Lab Report, 16 July 2008
- Crime Lab Report (2009a) A response to the testimony of Judge Harry T. Edwards before the Senate Judiciary Committee April 1, 2009 by Crime Lab Report. [Crime Lab Report is an independently edited and produced report on crime laboratory and forensic science issues; its views often reflect those of the forensic laboratory community]
- Crime Lab Report (2009b) Post-conviction activists ‘contaminate’ evidence in Texas [discussing contextbias on the part of fire investigators in a highprofile death-penalty case in Texas called “Willingham” in which the defendant was ultimately executed]
- Daubert et ux. etc. et al. v. Merrell Dow Pharmaceuticals, Inc., No. 92-102 (1993), 509 U.S. 579, 113 S.Ct. 2786 (often referred to as “Daubert” or “Daubert vs Merrell Dow”)
- Dror IE, Charlton D (2006) Why experts make errors. J Forensic Ident 56(4):600
- Dror IE, Charlton D, Pe´ron AE (2006) Contextual information renders experts vulnerable to making erroneous identifications. Forensic Sci Int 156:74
- Durose MR, Walsh KA, Burch AM (2012) Census of publicly funded crime laboratories 2009, U.S. Department of Justice, Bureau of Justice Statistics, 2012 August, NCJ 238252
- Frye v. United States (1923) Frye v. United States, 54 App. D.C. 46, 293 F. 1013, No 3968, Court of Appeals of District of Columbia (often referred to simply as ‘Frye”)
- Garrett BL (2008) Judging innocence. 108 Columbia L.R. 55
- General Electric Co et al. vs Robert K. Joiner et ux., No. 96-188 (1997) 522 U.S. 136, 118 S. Ct. 512 (often referred to as “Joiner”)
- Haber L, Haber RN (2008) Scientific validation of fingerprint evidence under Daubert. Law Probab Risk 7(2):87 http://www.corpus-delicti.com/forensic_fraud.html, visited 9/12/2011
- Innocence Project: http://www.innocenceproject.org/ visited 9/12/11
- ISO 17025 (2005) ISO [International Organization for Standardization]/ IEC [International Electrotechnical Commission], General requirements for the competence of testing and calibration laboratories, 2nd edn. ISO, Geneva
- Kaye D (2010) The good, the bad, the ugly: the NAS report on strengthening forensic science in America. Sci Justice 50:8–11
- Koehler JJ (2008) Fingerprint error rates and proficiency tests: what they are and why they matter. 59 Hastings Law J 59:1077
- Koehler J, Mnookin JL, Cole SA, et al (2011) The Need for a research culture in the forensic sciences, UCLA LR 58:725 (and available from the Northwestern University School of Law Faculty Working Papers)
- Kumho Tire Co. Ltd., et al. v. Patrick Carmichael, etc. et al., No. 97-1709 (1999) 526 U.S. 137; 119 S. Ct. 1167 (often referred to as “Kumho Tire”). The Daubert case along with the Joiner and Kumho Tire cases are sometimes referred to as the “Daubert trilogy”
- Mnookin JL (2008) The validity of latent fingerprint identification: confessions of a fingerprinting moderate. Law Probab Risk 7(2):127
- NIJ [National Institute of Justice] (2004) Education and training in forensic science: a guide for forensic science laboratories, educational institutions, and students, office of justice programs, NCJ 203099
- NIJ [National Institute of Justice] (2006) Status and needs of forensic science service providers: a report to congress, NCJ 213420; this report followed a 180-Day Study Report on the Status and Needs of U.S Crime Laboratories by the American Society of Crime Lab Directors [ASCLD] in May 2004
- NIJ [National Institute of Justice] (2011) The national institute of justice response to the report of the national research council: strengthening the national institute of justice, NCJ 234630
- NRC [National Research Council] (1992) Committee on DNA technology in forensic science, DNA technology in forensic science. National Academies Press, Washington, DC
- NRC [National Research Council] (1996) Committee on DNA in forensic science, the evaluation of forensic DNA evidence. National Academies Press, Washington, DC
- NRC [National Research Council], National Academy of Sciences, Committee on Applied and Theoretical Statistics, Committee on Identifying the Needs of the Forensic Sciences Community (2009) Strengthening forensic science in the United States: a path forward. National Academies Press, Washington, DC, p 254
- Peterson JL, Hickman MJ (2005) Census of publicly funded forensic crime laboratories, Bureau of Justice Statistics Bulletin, NCJ 207205
- ‘Popper K (1989) Conjectures and refutations: the growth of scientific knowledge, 5th edn. Routledge, London, Karl Popper and Conjectures and Refutations in Wikipedia, retrieved 9/9/2011 from http://en. wikipedia.org/wiki/Karl_Popper and http://en. wikipedia.org/wiki/Conjectures_and_Refutations
- Ross A (2011) Forensic science in Australia: can we learn from international reports? Austr J Forensic Sci 43(2–3):135–145
- Saks MJ, Risinger DM, Rosenthal R, Thompson WC (2003) Context effects in forensic science: a review and application of the science of science to crime laboratory practice in the United States. Sci Justice 43(2):77–90
- Suresh S (2012) Testimony before the U.S. senate commerce, science, and transportation committee on the science and standards of forensics, 28 March 2012
- SWGDE [Scientific Working Group on Digital Evidence] Position on the National Research Council Report to Congress, 17 Sept. 2009
- SWGFAST [Scientific Working Group on Friction Ridge Analysis, Study, and Technology] (2009) Position Statement on the NRC Report, posted 3 Aug. 2009
- THOMAS—Library of Congress—http://thomas.loc.gov/ home/thomas.php—visited 9/5/12, U.S. Congressional legislation can be queried and tracked from this site
- Thornton JI (2010) A rejection of ‘Working Blind’ as a cure for contextual bias. J Forensic Sci 55(6):1163
- S. DOJ [Department of Justice] Inspector General (2006) The Brandon Mayfield case, see at http://www.usdoj.gov/oig/special/s0601/PDF_list.htm; also see FBI Responds to the Office of Inspector General’s Report on the fingerprint misidentification of Brandon Mayfield, National Press Release, 6 January 2006. More information and viewpoints: Crime Lab Report, Crime Labs under Police—Unresolved Issues, 15 October 2008; and S. Weinberg, Keystone Cops at the Police Lab, Miller-McCune.com, 18 June 2009
- White House OSTP [Office of Science and Technology Programs] Response to NRC Report, October 2010
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