Issue Date: June 25, 2012
Still Seeking Forensic Reform
Forensics is such a part of the culture in the U.S. that almost everyone believes it can without question be used to find criminals. After all, they see forensics at work on TV crime dramas and hear about its use in courtroom battles.
But a 2009 report requested by Congress from the National Research Council (NRC) showed that there isn’t much science underlying most of forensics, including such television mainstays as fingerprints, bite marks, and ballistics. Claims based on faulty forensics have led to improper convictions and false accusations, among many other issues.
The NRC report, “Strengthening Forensic Science in the United States: A Path Forward,” recommended a massive overhaul of the entire forensic system, setting standards for forensic disciplines, tightening oversight of labs and individuals, and funding more research to boost forensic’s scientific base. The changes should be spearheaded by an independent federal agency created to lead forensics reform and fund necessary research, the NRC committee that wrote the report asserted.
More than three years later, those proposals are still just words on paper. Although individual judges and investigators are starting to change their own practices as a result of the study, the federal government has not taken action on any of the suggestions. Changes may finally be in the offing later this year, however. Legislation to strengthen forensic oversight is being considered in Congress, and a White House panel that has been examining how to address the NRC report for three years is nearing a conclusion.
These actions are long past due for chemist Jay A. Siegel, who served on the NRC committee and says these serious problems need to be tackled before the situation gets worse. “There is a lot of analysis in forensic science that is posing as science but has never been scientifically validated,” he says.
Siegel, a longtime forensic scientist and director of the Forensic & Investigative Sciences Program at Indiana University-Purdue University Indianapolis, is one of the few people who wasn’t stunned by the findings in the NRC report.
That wasn’t true of many of his fellow members on the NRC committee, which included prominent judges, lawyers, and scientists from other disciplines. Almost everyone in the legal community assumed that forensic sciences could be trusted, says Marvin E. Schechter, a New York defense attorney who was also on the committee. But now he knows that isn’t the case. “These forensic disciplines are largely the creation of law enforcement,” not scientists, he says.
Fingerprints are a good example. They are frequently used by law enforcement agencies to identify criminals and are commonly admitted as evidence in court. But there is no research that says what the probability is that everyone has a unique fingerprint or how many characteristics on each print would be needed to confirm the identity of a specific individual. Each lab in the U.S. decides what is considered a match, Siegel explains.
In one often-cited example, the U.S. government settled with Oregon lawyer Brandon Mayfield for $2 million after it wrongly implicated him in the 2004 Madrid train bombings. Multiple analysts matched Mayfield’s fingerprints to one found at the scene, but Mayfield was proven innocent when the real bomber was found.
This case and other wrongful prosecutions show that something needs to be done before the public loses confidence in the criminal justice system, says Constantine A. Gatsonis, cochair of the NRC committee and a biostatistics professor at Brown University.
To address the crisis of confidence, the proposed federal agency would be separate from the oversight of investigators and prosecutors, unlike most U.S. forensic labs. The agency would be responsible for setting standards for forensic labs nationwide and funding research to shore up forensic science.
But that suggestion and others in the report haven’t gone over well. “Since that report has come out, all hell has broken loose in forensic science,” Siegel says. The report has been widely criticized by forensic investigators who claim their work is valid and by law enforcement officials who don’t want forensic labs to be removed from local agencies.
Gatsonis says the committee recommended an independent agency because existing local and federal forensic labs couldn’t make the important changes that are needed. There are 17,000 local or state law enforcement agencies and 2,300 prosecutor’s offices in the U.S., most involved in forensic science.
“Some form of entity that directs and organizes forensics is going to happen, but it might just have such a narrow province that it won’t be effective,” Gatsonis says. Anything other than an independent federal agency “is going to be a partial solution.”
Congress likely wasn’t expecting to deal with a new federal agency when it requested the NRC report in November 2005. The committee’s 17 members heard from 80 witnesses during its two-and-a-half years of study.
The findings, released in February 2009, were wider reaching and more troubling than observers expected. Of the roughly 20 forensic disciplines the committee looked at, only two appear to have a sound basis in research: DNA matching and chemical identification of drugs and explosives.
Statistics are one of the biggest problems in many of the forensic sciences, Gatsonis explains. There just isn’t much data to answer questions such as, “What is considered a match?” or “What is the likelihood that their finding is wrong?”
“Scientific results always come with some kind of error bars,” Gatsonis says, but, except for DNA analysis, the studies to determine error ranges just haven’t been done. “It is surprising how many people would stand up and defend” the current practice, he notes. “There is a lot here that needs to be improved, and part of it is people who are the key contributors in the system need to get more understanding of the scientific process.”
Until the 2009 report, most people in the police and legal communities didn’t realize there was a problem. Even after they heard there was a problem, many didn’t have the scientific background to understand what could be included in criminal trials.
“The entire criminal justice system in the U.S. is based on the concept that evidence that is not valid is inadmissible in a court of law,” says Schechter, the defense attorney. For example, hearsay isn’t admitted because it might not be valid. Judges are the arbiter of what is allowed, but they have been ineffective gatekeepers for forensic evidence, he explains. “Judges, especially at the state court level, have very little experience with science,” he says.
That is slowly changing, in large part because of the NRC report and the training it spurred. And defense attorneys are starting to use their new knowledge to challenge forensic evidence in court, says Jules Epstein, a law professor at Widener University, in Delaware. But for the average defense attorney, it is expensive and difficult to mount a challenge to forensic evidence.
Perhaps more important, some individual judges are starting to lay out rules for lawyers about what will be considered valid forensic evidence and what forensic witnesses will be able to claim about their findings. Another promising development is that the legal community is coming together with forensic investigators on panels to lay out how to more accurately present evidence like fingerprints in court.
However, changes at the federal level are needed to bring about the large-scale reforms that the NRC committee said are required. Both Congress and the White House are working on solutions, but they appear to have largely rejected one of the key tenets of the NRC proposal, an independent forensic agency.
In the Senate, a bill (S. 132) currently under consideration from Sen. Patrick J. Leahy (D-Vt.) focuses on boosting coordination among the National Institute of Standards & Technology, the National Science Foundation, and the National Institute of Justice (NIJ), which supports forensics research for the Department of Justice. Another Senate bill, by Sen. Jay Rockefeller IV (D-W.Va), is expected to be released later this year, although details are not yet available. Legislation has yet to emerge in the House of Representatives, but talks between Senate proponents and House members are under way.
The Obama Administration decided early on that the polarized political climate in Congress made it impossible to create a new agency, so they looked at other options. “I’m not sure the federal government had an appetite to create an agency with 20,000 employees for forensic science,” says Mark D. Stolorow, director of the Law Enforcement Standards Office at NIST.
Instead, the White House in July 2009 created a subcommittee of the National Science & Technology Council (NSTC) to figure out the best way for the government to address NRC’s findings. The subcommittee included the 14 federal agencies that run 45 forensic labs, as well as representatives from 49 states.
Stolorow, who is cochair of the NSTC subcommittee, says the group explored how to change the course of such a huge ship as forensic science in the U.S. “How do you go from where we are to what was recommended, with a high degree of uniformity and bootstrapping?” Stolorow asks. “It is years’ worth of work, and it is going to take lots of resources.”
Currently, federal forensic laboratories and local agencies do work together, but the collaboration is not coordinated at a federal level and varies depending on the forensic discipline. NIJ funds forensic research, but “it is at a pretty small level compared to what is recommended” by NRC, Stolorow says.
“The difference this time is we are envisioning the federal government taking on a national leadership role. The reason that is so critical is that 95% of all forensic analysis in the U.S. is done” outside Washington, D.C., Stolorow says.
After three years of work, the NSTC subcommittee has identified ways to address each point in the NRC report and is currently combining that information into a single proposal due to the White House in September. Instead of a new agency, the proposal will likely involve oversight by some combination of NIST, NSF, and NIJ, according to those familiar with the findings, although the details have not been released.
For members of the NRC committee, however, a new agency is essential. “It may turn out in the end that if we have an independent agency putting out research that some [of the forensic disciplines] could be excellent,” Schechter says. “But some can’t exist and should not exist. We are only going to know once we do the research.”
NRC committee cochair Gatsonis says that funding is a problem in this budget climate, but equally important is an agency dedicated to thinking about forensic science and changing its current direction. He is still hopeful that Congress and the White House will come around to the idea of a single federal agency.
“I hope that the efforts in Washington right now will coalesce into some sort of coordinated national effort about forensics. The form it takes is probably less important than that it is coordinated and a national, systemic, scientific, and legal process,” Gatsonis says. “It is not a partisan issue, but it is still political.”
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