Realizing reliability in forensic science from the ground up.
1. Constitutionality of Tying Federal Funding to Related Programs
Tying federal funding to the adoption of standards is another, less direct method to create effective national forensic standards. Congress employed this method before to coerce states to adopt a drinking age of twenty-one. Passed in 1984, the National Minimum Drinking Age Act provided that any state that lowered its drinking age below twenty-one lost 10% of its federal highway funding. (245)
South Dakota challenged the National Minimum Drinking Age Act's constitutionality in South Dakota v. Dole, (246) The Court upheld the Act but laid out four general restrictions on Congress's spending power: (1) any such "exercise of the spending power must be in pursuit of the general welfare"; (247) (2) Congress must make its conditions on federal funds unambiguous; (3) any condition might be illegitimate if it does not relate '"to the federal interest in particular national projects or programs'"; and (4) other constitutional provisions might create independent bars to Congress's conditional grants. (248) Thus, any attempt to coerce states to adopt national forensic standards must fall within these restrictions. (249)
Utilizing federal spending power to create national forensic standards would likely pass constitutional muster. First, a national forensic standards program would be in pursuit of the general welfare. National forensic standards would help place factually guilty criminals in jail sooner, providing for safer communities. Relatedly, wrongful convictions would decrease, resulting in fewer resources wasted litigating and fewer innocent citizens behind bars. Providing clear job paths in the forensic sciences would also streamline educational processes and attract more people to the field. Next, Congress could easily meet the second restriction by unambiguously writing into the legislation the conditions for federal funding. Further, the third restriction--ensuring that the condition relates to the particular federal interest--would also be easily met. In Dole, the condition placed on federal highway funds was that states keep the legal drinking age at or above twenty-one, and the Court found that this requirement directly related to safe interstate travel, the main purpose of highway funding. (250) Here, the condition would be to follow a national forensic standards program, which is directly related to creating national forensic standards, the main purpose of the funding. Finally, none of the many components of the program would likely violate other constitutional provisions. Thus, satisfying all four restrictions, a program that tied federal funds to state participation would be a constitutionally viable option to encourage states to adopt national forensic standards.
2. Obstacles in Using Federal Funds to Encourage Adoption of Standards
Because tying federal funding to national forensic standards might be constitutionally permissible does not mean that it is the best or easiest method for encouraging their adoption. There are also practical challenges, such as getting states to act and securing a source of funding. Examining similar programs already in place can provide guidance.
The strength of a national forensic standards program would come from it being truly national, which would (eventually) require every state to adopt the standards. To this end, federal funding can be a powerful motivator. For example, after the National Minimum Drinking Age Act tied only 5% of a state's federal highway funds to the drinking age requirement, all fifty states complied with the condition. (251) Perhaps this quick compliance based on such a relatively small percentage of funding is simply evidence that states can only be enticed to make decisions they were not far from making in the first place. Even granting this assumption, there is little evidence of strong moral resistance among the states to the idea of national forensic standards.
Greater resistance to a federal funding program might come from states that will not benefit from it. It is unlikely that federal funding could cover every state's forensic science expenditures, especially when the initial costs to raise a state's forensic standards to a proposed federal level are great. Thus, some states will lack resources to effectively implement national forensic requirements, even with federal funding.
To close the gap between current state forensic science standards and the standards a national program would require, multiple methods of fund distributions are necessary. Initially, federal funding directed at elevating current state forensic standards could be offered, followed by a separate source of funding to maintain that standard. This would help states overcome the burden of eliminating the disparities between their current standards and those that would be required under a federal system. Assuming adoption could be achieved through funding, discovering a means to pay for that funding could still present a problem.
b. Source of Funds
In light of the current economic conditions and approaches to federal spending, (252) finding significant sources of funds to support a national forensic standards program would be challenging. Arguments for such a program should include both any cost savings and any economic stimulus such a program would create.
As discussed, national standards would address the current forensic systems' inefficiencies. Erroneous criminal convictions cost the country both in terms of what wrongly convicted defendants could otherwise provide for society and the damage criminals who escape conviction can cause. Moreover, the myriad of inconsistent forensic standards across the country prevents labs, investigators, prosecutors, and defense attorneys from seeking out more efficient and effective methods for resolving frequently litigated forensic issues. Consistent national standards would streamline forensic processes.
A national forensic standards program would also provide economic stimulus. Research funding would advance our universities and research institutions. A clear (and nationally consistent) career path for forensic scientists would draw more students to STEM subjects and to the forensic science field. Focusing the nation's forensic science standards on common goals might also create new industries and allow the United States to become a leader in others.
c. Previous Attempts
In addition to considering the potential funding and adoption problems, a survey of previous attempts to develop a national set of forensic standards can provide guidance for a new endeavor. As previously mentioned, Congress has already tied federal funds to some forensic science initiatives. From 2000 to 2004, Congress created and expanded the aforementioned Paul Coverdell National Forensic Sciences Act. (253) The Coverdell Act "awards grants to states and units of local government to help improve the quality and timeliness of forensic science and medical examiner services." (254) In 2009 and 2010, roughly $23 million and $33 million were given out in Coverdell grants, respectively, but that amount fell to less than $11 million in 2012. (255)
The Coverdell grant program has faced two problems that any national forensics standards program would need to overcome. The first is its total funding level, which would need to be significantly higher than the Coverdell program's $33 million high point to initiate and ultimately maintain a national forensic standards program. The second problem is the Coverdell system's administration. An Innocence Project report found enough significant problems with the program's administration to call into question whether it even ensured that the law's most basic requirements were being followed. (256) Again, history does not bode well for establishing a federal forensic agency that has authority over nonfederal forensic stakeholders.
D. THE BUY-IN: RESISTANCE TO REFORM
Assuming that a more tempered, fiscally palatable, and constitutional approach to a federal forensic agency is possible, the problem of "buy-in" still has not been overcome. Stakeholders across all levels of the forensic process would need to commit to reform. Given that the forensic process-- from crime to conviction--requires coordination and communication across the complexity of the criminal justice system, it functions much like a nervous system. And just as a nervous system is vulnerable to malfunction in multiple ways, so too is the forensic process. Consequently, absent choreographed interplay of all the individuals in the forensic nervous system, forensic reform (let alone establishing a federal agency) would lack the necessary support. The system requires integrity and the cooperation of all parties. It is about more than just ironing out kinks in the circuit.
Immediately after the NAS Report's release, several specialty forensic organizations promulgated rapid-fire statements condemning the report, the representative groups of the NAS committee, and the methodology that led to their long list of recommendations. Rather than responding with reason and authority, the organizations resorted to defensive rhetoric. In an obvious attempt at damage control, the organizations demonstrated that any attempt to overhaul forensic science would be met with swift and strong resistance. (257) Indeed, if these groups possessed the lobbying prowess of, for example, the National Rifle Association, they probably would have been able to get legislation moving in the opposite direction and perhaps would have sought to declare forensic reform unconstitutional.
As already noted, the NAS Report singled out fingerprinting and firearms analysis, among a host of others. With regard to finger-printing's ACE-V method, the Report concluded that the framework lacked specificity, failed to prevent bias, and could not produce repeatable and reliable results. In sum, the Report found that the process "does not guarantee that two analysts following it will obtain the same results." (258) In response, the International Association of Identification (IAI) issued a statement, noting that "[t]here is no research to suggest that properly trained and professionally guided examiners cannot reliably identify whole or partial fingerprint impressions to the person from whom they originated." (259)
To a lesser degree, this sentiment was echoed by the Association of Firearm and Toolmark Examiners (AFTE). The AFTE agreed that deficiencies exist in the discipline, but maintained that the "NAS painted an incomplete and inaccurate portrait of the field of firearm and toolmark identification using a very broad brush, and in doing did not consider the appropriate scientific principles on which our discipline is founded." (260) These examples are but two in a larger pool of responses focused on maintaining the status quo,261 and they reveal reluctance, resistance, or even resentment towards forensic reform. If those attitudes continue, forensic reform--whether federally mandated or not--will fail.
To be fair, in the years since the NAS Report, various forensic organizations have refined their knee-jerk responses somewhat. While perhaps falling short of love letters, they acknowledge at least an interest in performing research to establish statistical measures for the evidence. In fact, the LAI's Standardization II Committee more recently recommended that the organization:
create a Standing Committee on probability theory and statistics as it relates to the forensic disciplines represented by the IAI. Their charge would be to assist the Science and Practice Committee in the acceptance and implementation of probability modeling and to liaise with various entities such as the FBI's Biometric Center of Excellence, National Institute of Science and Technology, National Institute of Justice, National Academy of Sciences and the European Network of Forensic Science Institutes. (262)
The Committee also recommended that the IAI support the "pursuit of a single internationally accepted examination methodology and standard for conclusions." (263) Of course, one committee rarely speaks for the body as a whole, so while there is some acquiescence to forensic reform, it is also clear that centralized, unilateral reform may disenfranchise the very groups that are needed to effectuate that change. But, as the following Part demonstrates, there are other ways to accomplish a paradigm shift in forensic science.
IV. ORGANIC CHEMISTRY: REFORMING FORENSIC SCIENCE FROM ITS BASE
Given the political stalemate that likely will persist, we need to shift the dynamic of forensic analysis from static observation to active experimentation. This transition demands not only cooperation between law enforcement and the legal system but must also involve scientists and universities as active participants in the everyday world of forensic evidence. It also requires crime labs to take accountability and ownership of their shortcomings. Together, this would facilitate the implementation of science-based practices and policies and would change the fundamental relationship between research and practice, which often exist on opposite sides of a deep chasm.
While creating a single, central entity to accomplish such cooperation would be optimal, it also is an elusive (and perhaps imaginary) ambition at this point. Accepting the practical obstacles for what they are and starting at the bottom "on the frontline" of forensic science by creating research partnerships is a more realistic and workable model. Research partnerships would accomplish what a federal entity perhaps could not: marrying underlying theories of forensic science with its application and practice. These partnerships--whether with universities or research nonprofits-- would facilitate the simultaneous, informed development of forensic science standards and frameworks in collaboration with crime labs where actual casework is performed. By comparison, divorcing research from the practice of forensic science would have a chilling effect, because it would become suspect to the very entities that it would be thrust upon--the forensic labs. Thus, making crime labs part of the solution instead of telling them that they are the problem would go a long way toward reforming forensic science. Part IV. A first explains how research partnerships could advance areas requiring necessary improvements, including by promoting research and by developing standards for methodology and terminology. Part IV.B then discusses secondary benefits that could be attained.
A. APPRECIATING THE BIG PICTURE: NONNEGOTIABLES
Until recently, most practice-driven studies of forensic techniques were based on very simplistic methodologies and focused on implementation rather than design. (264) These studies often failed to address key issues around technique repeatability or, equally crucial, fallibility. After assessing whether the methodology worked, forensic labs then diffused techniques more widely within their agencies and across agencies, without adequately researching the real effects. Some inroads into the process have been accomplished, but it could hardly be called a trend toward transparency. Rather, the framework for testing forensic techniques has traditionally been more of a symbolic activity than a real scientific activity. By developing a transparent interpretational architecture, we may reconstruct the forensic science technique process and understand why issues, such as reproducibility, are not present in each and every case.
Given the increase in requests for forensic analysis in everything from murder cases to low-level property crimes, it is becoming progressively more expensive for crime labs to carry out the necessary work. But without scientific bases to legitimize the value and reliability of their analyses, it is likely that forensic evidence will continue to not only be vulnerable but also untrustworthy. When crime labs see little value in university-level research, there will also be few serious scientists who are interested in or know about forensic sciences.
As compared to other public services, such as health and education, forensic science receives little research funding outside of that provided for DNA technology, meaning (Hollywood glamour aside) that young scientists are unlikely to see forensics as an area of study with promise. (265) This is a vicious cycle: the lack of priority accorded to forensic science translates into limited investment and rewards (i.e., grant funding) and, in turn, into limited opportunities and career prospects for scientists interested in developing the research culture.
Perhaps the most important cost of the present state of forensic science is that there will be a growing fissure between scientific research and forensic practice. Forensic practice has had little scientific guidance to date, and though much more is known today than even just a decade ago, what is most striking is that we know little about what makes forensic practices effective--what works, in what contexts, and at what cost.
In a system that habitually pairs crime labs with law enforcement agencies, it makes no sense to have budgets that fail to allocate for forensic science research and development. One might argue that the cost of research should not be borne on a local level, but it seems unreasonable that larger crime labs (which are, in some respects, like large medical centers) do not see themselves as responsible for advancing and testing their forensic practices in a scientific framework. The following Section identifies the need for research before delving into means of accomplishing that research through partnerships.
1. The Need for Research: From Butchers to Bakers
The NAS Report characterized the current research situation in forensic science as a "serious problem." (266) The Report noted that although some research has been conducted in some disciplines, "the simple reality is that the interpretation of forensic evidence is not always based on scientific studies to determine its validity." (267) Many forensic evidence disciplines lack significant peer-reviewed research of the scientific bases for and validity of the forensic methods. (268) Fingerprint identification is one such discipline where "sufficient data on the diagnosticity and reliability ... do not exist." (269)
Unfortunately, not much has changed since the Report revealed this dearth of research. As Paul Giannelli notes, the very government agencies tasked with researching forensic sciences have manipulated their craft in the areas of DNA profiling, fingerprint analysis, and bullet lead analysis. (270) These scholarly shortcomings, he posits, may be attributable to tight budgets and a lack of training. (271) The profound--and potentially dangerous--absence of peer-reviewed research mutes courts' abilities to act as gatekeepers. Instead of properly keeping from the jury misleading "expert evidence," the only mechanism by which to undo the harm caused is by cross-examining the "expert." (272) Instead of being able to easily identify the shortcomings of self-proclaimed "experts" and properly exclude them from the witness stand, jurors' misconceptions about the reliability of certain forensic analysis procedures is further strengthened by testimony from "pseudo-experts who ... appear legitimate." (273)
Research, therefore, must become an important part of forensic science's infrastructure. Crime labs have the ability to create research partnerships with outside entities. In the same sense that the teaching hospital model combines patient care, professional training, and medical research, we must bring universities and other research partners into crime labs. New partnerships between forensic scientists and forensic science researchers can build upon the university medical center model. (274) Fostering these relationships may ultimately prove more fruitful than the federal funding scramble. Examiner training and experiences remain valuable for the assessment of tolerance and rarity; however, examiners cannot reliably demonstrate this in a transparent manner. Furthermore, examiners' cognitive abilities cannot outperform the computational power of computers. These tools can be utilized to provide measures of whether the features, as observed and annotated, are within expected tolerance and whether the rarity of the evidence is one that warrants a decision of "suitability" or "identification" (when all features correspond in the comparison). While these tools are not readily available (as they are currently being researched and developed), once they have been appropriately researched and validated, then those technologies may support the decisionmaking processes inherent in forensic analysis. At bottom, science must become a natural part of forensics and forensics must become based in science.
2. Creating the Research Partnerships
What some might call hard sciences--such as the sciences of engineering and biotechnology--have been slow to gain a foothold in forensic research. Because of this, an evidence-based model, in which standards are developed with clear scientific criteria, is lacking. Unlike institutions dedicated to the hard sciences, crime labs do not, on the whole, encourage their scientific staff to publish in scientific journals on criminalistics. Instead, publication is generally discouraged, because it might negatively affect the lab or the law enforcement agency to which it is linked. (275)
Science, in this sense, is not a part of many crime labs--whether large or small. As a result, the scientific quality of forensic analysis is often relatively low. Crime labs do not have the resources to develop research while also managing caseloads, tight budgets, and backlogs. In addition, many of the issues with forensic science research stem from crime labs' lack of independence: any facility with a research capacity is often housed within the law enforcement agencies that exacerbate the problems with forensic methodologies, analysis, and reporting. (276) The NAS Report concluded that these law enforcement agencies are '"too wedded' to the status quo" to make good candidates for carrying out a research agenda. (277) Indeed, the creation of university-crime lab partnerships to conduct forensic research may be the only way to bolster scholarly research in the field.
Admittedly, this structure requires legwork by both crime labs and the research partners they identify. Memorandums of understanding, a bit of politicking, and some compromises would be needed all the way around. Starting small and incrementally tempering the partnership through collaboration would be a step in the right direction. Thus, the research partnerships might choose to focus their efforts on more specific and narrow subject matter with directed research, establishing forensic frameworks, or standardizing terminology and reporting.
3. Directed Research Efforts
One of the most pressing needs in nearly every forensic science discipline is more research. (278) Outside DNA analysis, very little research has been carried out. But more consensus in other disciplines is needed regarding the merits of the science, the protocols that should be used, and the standards and terminology that should be adopted. (279) Both areas of forensic practice--lab-based disciplines and disciplines based on the subjective observations of experts--likely would require different research approaches.
Lab-based disciplines necessitate traditional, peer-reviewed research, which is common in other disciplines outside of forensic sciences. (280) Educational institutions often perform such research. Thus, a research partnership intent on advancing forensic science in the lab-based disciplines will need to encourage (which typically means fund) research at the university level. To promote this research, crime labs and universities would need to establish strong ties. (281) For example, issues regarding transparency could be addressed by clearly documenting and defining observations and interpretations based on the evidence. Other issues, primarily related to assessing the weight or strength of evidence (e.g., "suitability," "tolerance," and "rarity") will require considerable support from both the practitioner and research communities to determine the most appropriate course of action.
Disciplines that involve subjective review of expert observations particularly suffer from a lack of a research culture. (282) Judges, for example, are prone to inferring "scientific validity from the fact of longstanding use." (283) Given the fact that these methods are often accepted in the courtroom at first blush, developing a research culture for the more subjective forensic disciplines will not only require traditional, peer-reviewed research at the university level but also a focus on the scientists' role in evidence analysis. (284) Analysis in disciplines such as fingerprints, toolmarks, and ballistics often comes down to a scientist's experience and "eye" for the evidence. Very little research has been directed towards scientist biases in this process and how the scientist's role as a possibly partial observer can be limited. (285) Some scholars suggest moving away from the "eyeballing" method altogether by ensuring that an emphasis on empirical data drives the reform of these fields. (286)
4. Adopting Standards and Forensic Frameworks
The lack of standards has far-reaching effects. The NAS Report noted that forensic science training programs have no uniform standards, leading to uncertainty in both the quality and relevance of the programs. (287) Moreover, without first establishing a cohesive relationship between forensic research and forensic practice, the system will continue to produce preventable errors, employ outdated procedures and methodologies, and struggle with internal disputes as to where the line between acceptable and unacceptable procedures is to be drawn. As a result, until standards are established, there can be no consistent method for granting crime lab accreditation. (288)
The forensic sciences should look to the medical community and university research hospitals as a model. By way of example, consider a cancer researcher working side-by-side with an oncologist. The oncologist practices medicine and the researcher documents, analyzes, and works on ways to improve treatments. The research is then shared across hospitals and universities and published in medical journals. The entire medical community then advances by better understanding the disease and, accordingly, adjusting the standards for treatment.
A similar partnership would be a perfect fit for forensic science and would meet key benchmarks for setting research standards under the Standards Act. First, it would establish standards for measurements, analysis, and interpretation. (289) This standardization would ensure that labs are uniform in their determination of what results mean. Second, it creates standardization in the products and services forensic scientists supply to the criminal justice system. (290) Such standardization would address the disparities that arise when labs on the whole employ different methodologies, vary in their protocols, or maintain dissimilar reporting requirements. (291) By addressing those disparities, the forensic science community would have a clear foundation--one recognized at the macro level--for establishing standards for crime lab accreditation. Finally, the resulting standards would accomplish the same objectives in the forensic science community that standards have accomplished in the medical community: quality assurance, ethics policing, reducing errors, and inspiring faith from the community it serves.
I should underscore that researching and developing standards cannot occur overnight. Relationships between crime labs and universities would take time to establish, and agreeing on a specific research agenda is no easy task. There would be setbacks, frustrations, and unforeseen issues that develop. Moreover, research, standards and empirical studies for specific forensic sciences would not be a one-size-fits-all fix to forensic sciences generally. The frameworks of each individual discipline require different methodologies and, indeed, different approaches to conducting research. The NAS Report's indictment created an "us vs. them" mentality that still lingers. But the notion that "we're in this together" is what forensic science needs. Understanding the limitations and longevity of the research partnerships is critical to their success.
5. Standardizing Terminology and Reporting
Forensic sciences have very few, if any, national standards for terminology and reporting. (292) Terminology plays a significant role in many court settings. A jury can hear that two samples are a "match," are "consistent with," are "identical," are a "likely" match, or are of many other kinds of relation to each other, and the jury can take all these relations to mean the same thing, even when they do not. (293) Worse, without a standard language for reporting results, the meanings of the relationship titles can vary from scientist to scientist, depending on what standards, if any, the scientist operates under. A "negative" fingerprint analysis, for example, could mean that it was "excluded," "inconclusive," "unable to locate," or a poor sample, depending on the agency or individual conducting the analysis (294)--all of which are likely indistinguishable to the average layperson juror.
Reporting standards also differ between labs. (295) While some reports include detailed accounts of the tests and protocols performed, others contain barely more than the scientist's brief conclusory statements regarding the test results (which, as stated, could have many different meanings). (296) Further, reports can differ widely, including what, if any, error rates they list and whether and to what extent the reports list the tests performed and protocols followed. (297) The decision to provide a court with a conclusory report, as opposed to a detailed report, falls to the lawyer and her client. To ensure transparency in different scientists' comparison of evidence, they should clearly define what they observe and interpret it as "consistent" or "in disagreement." They should also document and be able to explain re-analyses of what they originally observe and, if they have reviewed other evidence in the cases, acknowledge the potential impact of their biases. Without documenting changes in subsequent analyses, additional analyses misplace what the examiners originally observed and interpreted versus what they might now believe after comparing it with the record.
A forensic research partnership could pioneer standardized terminology and reports. Such standardization would allow juries to hear consistent, reliable, and clear testimony with respect to forensic evidence. It would also prevent forensic witnesses from obfuscating results through exaggerated reporting methods. As a baseline, the International Organization for Standardization has already promulgated some international guidelines for general competence requirements to carry out certain tests or calibrations, which include standards for data reporting. (298) While adopting these international guidelines throughout the United States would not necessarily solve all terminology and reporting issues, it would, at the very least, provide some reference points for uniform vocabulary and reporting protocols.
B. DRILLING DOWN ON THE DETAILS: LONGER-TERM GOALS
While the primary efforts of research partnerships--such as directed research and standardizing terminology--are broad, big picture accomplishments, there are other (I hesitate to say "secondary") significantly needed benefits that would take some time to realize.
1. Certifying Practitioners and Labs
The lack of certification programs for both practitioners and labs engenders inconsistencies. Currently, lab accreditation is only required in a handful of states, (299) and judges and juries are often unfamiliar with the certification processes used by different organizations. In Texas, for example, forensic labs must meet statutory accreditation requirements for forensic evidence to be admissible. (300) Still, a roof leak in a Houston DNA lab went unchecked for years, contaminating evidence maintained in a storage facility and rendering it unusable. (301)
The absence of required certifications for practitioners is problematic as well. Very few states have any sort of mandatory accreditation or accountability programs for their scientists. (302) ASCLD/LAB offers accreditation that aligns with the international guidelines described above, (303) but in most jurisdictions accreditation is not mandatory. (304) According to ASCLD/LAB, the United States has 383 crime labs accredited in its program. (305) Even in disciplines where some organizations do offer certifications, many extremely experienced practitioners choose not to even pursue the certifications. (306) Without any requirement that forensic evidence witnesses hold certifications, there is little reason for many practitioners to pursue them. This undercuts the validity of such certifications for those that do choose to pursue them.
Moreover, the lack of certification programs results in practitioners with disparate proficiencies. In 1978, the Law Enforcement Assistance Administration (LEAA) sponsored a lab proficiency testing program, and more than 200 crime labs throughout the country participated. (307) The program showed a wide range of proficiency levels. (308) Labs operating at lower proficiency levels failed most often in interpreting test results because of careless error, lack of experience, utilizing improper methodology, standard contamination or mislabeling, and inadequate databases or standard spectra. (309) Another entity that conducted further testing from 1978 to 1991 found similar results. (310) Despite these glaring errors dating back to 1978, there has been no comprehensive reform. (311)
A national forensic science standards entity could provide for certifications for both labs and practitioners. Providing one national certification program would ensure baseline standards for all labs and enhance predictability in courtrooms. Further, the entity could create certification systems for specific forensic science disciplines. Such certification requirements could provide for a base level of education, experience, and expertise, making the voir dire stage of tendering a witness as an expert much simpler and the results much more reliable. Requiring certain educational steps before one is able to practice in the forensic sciences would encourage universities to create forensic science courses. This increased demand would also help encourage forensic science research and promote education programs to broadly disseminate results. (312)
2. Codes of Ethics
Forensic scientists frequently encounter ethical issues because they may be paid by the government but offer their services in criminal trials to both the government and the defense. Practitioners also need to be able to operate in situations where there will be little, if any, oversight and where biases might be significant motivators. To address these concerns, several forensic science organizations have adopted codes of ethics, (313) but currently, "there are no consistent mechanisms for enforcing any of the existing codes of ethics." (314) A federal entity could mandate such a code of ethics and allow for the slight variations different forensic disciplines may require. Further, tying this code of ethics to certifications in the various disciplines would help effect wider adoption.
3. Coordinating National Databases
Forensic science in a criminal case usually involves matching some type of unknown sample to one or more known samples with the goal of producing a match or exclusion. (315) The probability of matching an unknown sample to a known person or thing increases with the amount of known samples available to search against. More far-reaching databases of forensic samples would provide scientists with increased amounts of known samples. Some forensic science disciplines have already started national databases, such as the FBI's Combined DNA Index System (CODIS). (316) The FBI also manages a database, which includes fingerprints, criminal histories, mug shots, and other information associated with individuals. (317) Another example is the Bureau of Alcohol, Tobacco, Firearms, and Explosives' database for ballistic imaging. (318)
But the mere existence of these databases is not enough. Even CODIS currently suffers from fragmentation and backlogs. DNA evidence is submitted into CODIS, which itself is made up of three different groups for the local, state, and national data. (319) One FBI report revealed that the average time it takes for the FBI to provide DNA results is approximately 150 to 600 days. (320) Related to this steep turnaround time is the backlog of samples. In 2009, the United States had a backlog of 300,000 DNA samples. (321) And despite its wealth of data, the FBI's fingerprint database still poses problems for forensic scientists. The database's equipment vendors do not follow the same standards for importing data; law enforcement agencies and labs do not always have the resources to interact with it, and jurisdictional disagreements and differences in policies prevent agencies from sharing fingerprint data more broadly. (322)
For the forensic sciences that already have national databases, a federal entity could mandate the use of such databases and dictate the way local agencies interact with them. This would prevent many of the access and sharing problems law enforcement agencies currently experience. For forensic disciplines that do not have significant national databases, a federal entity could pattern new databases from the successes seen with other databases. This would allow a central authority to apply best practices in database management from one discipline to another.
4. Independence of Forensic Labs
Forensic labs currently maintain a cozy relationship with law enforcement and prosecution offices, both financially and geographically. In fact, a survey found that approximately 79% of 300 forensic labs studied were located within law enforcement or public safety agencies, and 57% worked exclusively with evidence submitted by law enforcement. (323)
In addition, there is a wide disparity in the resources available to defense counsel compared with prosecutors and law enforcement agencies. (324) Prosecutors often have cost-free access to their local or branch crime labs. (325) And while indigent defendants secured the due process right to expert defense witnesses in Ake v. Oklahoma, (326) they often do not have reciprocal rights of access or the means to afford private defense experts. (327)
5. Developing Education Programs
The NAS Report criticized forensic sciences for the absence of doctoral programs in forensic science and the dearth in quality and funding of forensic science education programs generally. (328) While each university will have to specifically address how forensic science fits into its curriculum, a collaborative effort with crime labs to promote Bachelor of Science degrees (as opposed to a Bachelor of Arts in Forensic Science found at some schools) will improve forensic science education. These degrees may supplant the "apprenticeship" system found in some forensic disciplines, but the training component can be fine-tuned and bolstered in the confines of a formal university program. These education programs could serve to benefit not only the practitioners themselves, but also lawyers and judges. (329)
V. BUILDING ON EXISTING MODELS AND FRAMEWORKS TO IMPROVE QUALITY AND COST
The NAS Report's cardinal recommendation was the creation of a single forensic science entity to promote an "aggressive, long-term agenda to help strengthen the forensic science disciplines." (330) The NAS Report envisioned a national entity that would be responsible for overseeing research and determining standards. (331) This broad undertaking was immediately met with skepticism and resistance. (332) I would like to keep the NAS's "aggressive long-term agenda[,]" but replace the goal of creating a single, national entity with that of creating a number of smaller research partnerships that share their work with a larger clearinghouse (perhaps the new National Commission on Forensic Science) that tracks the universe of research being conducted. Of course, any reform has drawbacks, and the research partnership is not immune to downsides. Nonetheless, the past five years of debate have shown that everyone has an opinion. Even though we have struggled to execute those opinions, we can look to some of the current frameworks that are attempting to embrace forensic reform for guidance.
A. INCUBATING FORENSIC SCIENCE REFORM: IDEAS AT HOME AND ABROAD
U.S. forensic science represents a patchwork quilt of standards and policies. Because thousands of jurisdictions have their own operating procedures, consistency and predictability are elusive. It seems that a logical starting point would be to consider pooling and sharing forensic resources across state and even international borders. (333) Indeed, the European Union has embraced the notion that "forensic cooperation does not stop at Europe's borders but needs to be seen in the context of international forensic cooperation around the world." (334) Moreover, the United Kingdom--which has been on the forefront of forensic development for decades--has made significant inroads in forensic reform by using a grassroots approach rather than a top-down legislative thrust upon reluctant labs.
The harsh truth is that the United States does not have the budget needed to legislate a comprehensive federal forensic science agenda. Yet, forensic sciences cannot afford an ad hoc fix or wait for the system to self-correct on the back-end in the postconviction setting. Allowing innocent people to languish in prison until the criminal justice system finds the time and opportunity to remedy its errors arguably amounts to a human rights catastrophe. That should not be the system we settle for. Forensic science, thus, needs coordination and creative resourcing through research partnerships that will grow the roots for reform.
This Part begins by outlining two U.S. examples of reform, both of which are in early stages. Next, it describes forensic reform progress in the United Kingdom and the European Union to draw lessons that can enhance a U.S. research partnership model.
1. Test-Tube Babies: Two U.S. Examples
Two U.S. labs have committed to forensic science research while also performing casework. Both labs--one a local initiative and the other a product of the Department of Defense (DoD)--solve problems the NAS Report addressed. The labs' structures and operational frameworks provide a network of oversight, maximize efficiency and analytical quality, and focus on collaboration and uniformity to establish forensic standards in both research and casework.
a. The Washington, D.C. Department of Forensic Sciences
On October 1, 2012, the District of Columbia's newly built Consolidated Forensics Laboratory and its newly created Department of Forensic Sciences (335) (DFS) opened for business. (336) The lab houses a public health lab, the medical examiner's office, and a hybrid of the police forensics lab and the new DFS crime lab. (337) Eventually, the police crime-scene unit will be phased out, and the all-civilian DFS crime lab, along with the health lab, will be under DFS's jurisdiction. (338)
The primary motivation for creating DFS and building the crime lab was the NAS Report. (339) DFS and the crime lab are the District of Columbia's response to the Report's call for a unified, independent agency that would promulgate, implement, and oversee robust standards and practices for the forensic sciences, albeit on a more local level than the Report had in mind. A secondary, but more public, motivating factor was the recent front-page news coverage highlighting forensic labs' substandard practices and the lack of effective oversight. (340) With DFS, the District aimed to achieve independence--not only from conducting forensic analysis in borrowed space or contracting analyses with labs outside the area, (341) but also independence from law enforcement and political pressure, as recommended by the NAS Report. (342) DFS hopes to accomplish this by both having its own building and phasing law enforcement personnel out of its operations.
Another goal for DFS is to encourage and maintain efficiency. Flaving a single department overseeing the efforts of several groups in the same physical area provides central oversight, uniform standards of operation, and a manageable system of checks and balances. (343) By housing several interactive departments under one roof, DFS hopes to encourage communication and collaboration among units, thereby increasing its overall efficiency and preventing backlogs. With a single department at the administrative helm, and a common intent to promote and maintain high standards, those standards would more likely be followed, and procedural missteps would be discovered before things get out of hand.
b. The Department of Defense Forensic Enterprise Directive
DoD has also made operational quality at its forensic labs a priority. A recent DoD directive establishes policies for military forensic work and delegates responsibilities for different forensic tasks and areas among groups within DoD. (344)
The directive seeks to establish increased collaboration and communication among various DoD divisions in an effort to "develop and maintain an enduring, holistic, global forensic capability to support the full range of military operations." (345) The directive sets up a central committee to coordinate all forensic enterprise activities. Responsibilities for promulgating standards and monitoring implementation and practices are delegated to different groups within the DoD. (346)
The goals outlined in the directive seem to mirror those DFS sought in terms of collaboration, uniformity, and quality. All appear intent on establishing a central oversight entity over different groups performing different forensic discipline functions and on promoting collaboration among the groups. The DoD directive sets up a uniform system of standards and procedures to guide forensic activity. (347)
The directive further establishes a rather complex web of directors and advisors to establish policy and monitor performance with respect to different forensic disciplines, in keeping with standards and procedures established by the central committee. (348) Much like DFS, the purpose here is likely to maximize efficiency and analysis quality while minimizing error. And as with DFS, the difficulty likely will be to strike a balance between providing both local oversight and forensic practice monitoring and global oversight of the collaboration and communication among a number of interdependent groups.
2. Across the Pond: Lessons from the United Kingdom
The United Kingdom has arguably been on the forefront of forensic science for decades. From its crime scene investigation in the Jack the Ripper case, to its embrace of DNA fingerprinting, to the demise of the iconic Forensic Science Services (FSS), the United Kingdom has experienced a roller coaster in forensic science administration. Understanding the United Kingdom's success requires a review of its previous failed attempts to increase quality.
a. First Steps: The Forensic Science Service
FSS was once a dominant forensic force in the United Kingdom. (349) At one time, FSS operated a monopoly of the United Kingdom's forensic science workload. (350) In 1991, however, FSS became an executive agency, which ran more like a business and, for the first time, charged for its services. (351) As a government-owned company, FSS sold its services to police forces and in December 2010, held 60% of the forensic science market share. (352) In 1995, FSS created the first DNA database. (353) Each year, FSS works on more than 120,000 cases, employing over 1,000 scientists. (354)
Still, the United Kingdom is not without its stories of wrongful conviction. In 1974, a pub bombing left 21 people dead and 160 injured. (355) On the night of the bombings, six Irishmen were arrested, and in 1975, the men were convicted based on confessions, evidence linking the men to the Irish Republican Army, and forensics suggesting the men handled explosives. (356) They were beaten and even tortured, but with a series of opportunities to rectify the situation, the courts balked and left the men both legally and physically defenseless. (357) Their first appeal was denied, their civil action against police for assault was dismissed, and a referral by the Home Secretary to review the case in 1987 was largely ignored. (358)
With controversy building each day the men sat in jail, a new Home Secretary referred the case to an appeals court yet again, this time with support from the director of public prosecutions, who decided he would not fight for the convictions to stand. (359) The court determined that the two issues addressed--the voluntariness of the confessions and sufficiency of forensic evidence--both signaled that the convictions were unsupportable. (360) The forensic tests were originally held to confirm that two of the six men handled explosives; however, scientists later admitted that "a range of innocent products" could produce the same positive results. (361) This "miscarriage of justice" came to an end in 1991, when the six men were finally freed sixteen years after their convictions. (362) Their release proved to be a watershed moment for U.K. forensic science.
The day after the "Birmingham Six" were released, the government called for a royal commission to report on forensic science issues. (363) Amidst sweeping calls for changes, there were virtually no major recommendations in the 1993 report, aside from suggesting an advisory council to oversee the use of forensics. (364) A few years later, FSS put its own group together to address quality standards. (365) FSS was already well on its way to a quality framework based on ISO 17025, an international accreditation standard, but aimed for a broader-reaching approach. (366)
b. Learning to Walk: The International Organization for Standardization
The International Organization for Standardization (ISO) offers an international standard for lab quality. (367) ISO 17025 applies to testing and calibration labs, and ISO suggests that accreditation organizations use its standards to measure quality through both managerial and technical requirements. (368) The management requirements focus on policy-oriented changes within labs to ensure quality, including policies, standards, and procedures. (369) The technical requirements emphasize scientist competence, environmental conditions, methodology, reporting requirements, and equipment management. (370)
In an effort to increase quality, the government in 1999 focused on registering practitioners with a voluntary program for assessing forensic science competence. (371) The standards required an assessment of competence and reassessment every four years. (372) While the voluntary program began as a government-funded enterprise, the ultimate goal was to reach 10,000 registered practitioners and become self-financing, but by 2004, it had only 1,800 members. (373) With less-than-successful enrollment, a prominent police association withdrew its support, and government funding was transferred to the National Policing Improvement Agency. (374) Realizing that focusing on individual practitioners failed to regulate quality at the organizational level, the National Policing Improvement Agency decided to remove all aid. (375)
Over time, FSS experienced severe financial troubles, which some attributed to the large number of forensic services it provided, as opposed to private labs that provided only the most lucrative services. (376) In an attempt to rectify the situation, FSS was granted trading fund status in 1999 to increase the organization's financial flexibility. (377) Six years later, FSS was established as a govco, a "[g]overnment-owned, contractor-operated" organization. (378) The government intended to create a kind of public sector-private market partnership that would provide the efficiency of the private market with the ability to control quality and standards. As a result, many other companies entered the market, driving competition up and costs down. (379) After reportedly losing about two million pounds a month, the government decided to shut down FSS in favor of an entirely private market. (380) As the organization that employed 1,600 prepared to close, the decision caused public backlash, with some accusing the government of allowing cost to determine justice. (381)
c. Running Forward: Privatization and Regulation
As the private market increased its activities, and concerns that the government was favoring cost over quality endured, the government stepped in and created the forensic science regulator, a publicly funded position not directly controlled by the government. (382) The regulator explained what he called the "most obvious risk" in closing FSS: going from very stringent accreditation requirements to a nonaccredited environment. (383) A condition required to close FSS alleviated this concern: only ISO 17025-accredited labs could receive FSS work. (384) Additionally, all DNA labs reporting to the police had to comply with ISO 17025 standards, and all fingerprint labs had to comply by 2015. (385)
In March 2012, "the government closed the FSS from taking on more material" (386) and achieved its goals of increasing both efficiency and quality through regulation and privatization. (387) DNA profiles are reported within a few days of when the lab receives the materials. (388) Making the turnaround even more impressive, profiling is available for all crime types, rather than just serious crimes: in the United Kingdom, anyone arrested can be required to give DNA for profiling purposes. (389) Although the United Kingdom has significantly fewer cases, lower crime, and a lower population than the United States, the comparison between the two countries' DNA systems is staggering. (390) While it is possible the United Kingdom's lack of backlog and quick turnaround stem from its demographic differences, the more likely answer is that the United Kingdom has succeeded at effectively managing its DNA system. Within two years of setting up its DNA database, the United Kingdom saw backlogs rise into the six-figures. (391) But, just two decades later, the United Kingdom has no backlog for its DNA analysis--a foreign concept in the United States. (392)
In addition to requiring accreditation to address quality issues, the United Kingdom mandated standards for processing crime scenes, transporting samples to labs, and now requires different labs to analyze samples from the accused and the victims. (393) Additionally, all data is submitted to an accreditation service to ensure standards are met, and the regulator may, at any time, enter a lab to check compliance. (394)
3. Wishful Thinking: The European Union
It is useful to contrast the United Kingdom's "deregulation" of forensic science with the attempt at centralization in continental Europe. The European Network of Forensic Science Institutes (ENFSI) aims to be recognized as Europe's leading authority on forensic science. (395) ENFSI endeavors to maintain the quality of forensic science and develop forensic services delivery throughout the European Union. ENFSI itself is a network of forensic institutes and labs geographically spread across Europe, including those from E.U. member states and most E.U. candidate countries. As of 2012, ENFSI membership consisted of sixty-four institutes spread across thirty-six countries. (396)
ENFSI recognizes that the lack of common standards is a barrier to cooperation between forensic science labs. Further, the benefits of common standards in the fight against crime have been a priority for ENFSI for some time. (397) In its policy statement on accredition, ENFSI makes the call to harmonize forensic standards and procedures. (398) It states that "ENFSI wishes to promote consistent and reliable scientific evidence through the whole forensic process from the scene of [the] crime to court." (399)
It is obvious--at least from the European Union's point of view--that common standards are essential to effectively investigating crimes that involve forensic information that spans across national borders. For example, the Prum Treaty (legislation before the European Union) relies on member states to make forensic information (DNA and fingerprints) contained in national databases available for searching. (400) To facilitate this process, the data must be in a standard format so that such searches are technically feasible.
Yet, with all of its centralization, the European Union itself lacks the standards in forensic science that it wants. There is no institutional control, and thus "no institution which develops forensic science standards, or enforces and supervises their implementation." (401) Indeed, while Europe's crime labs acknowledge that the creation of an independent forensic institute is just a matter of time, that time may be well off in the future.
The same might hold true for the United States. Even with a tested model from the United Kingdom and analogous U.S. examples, several obstacles stand in the way of change that would revolutionize U.S. forensic science industrywide: fragmentation, a lack of public interest, and drastic demographic differences. Without addressing these issues preliminarily, any attempts at reform would be terminal at worst and a prolonged illness at best, just as the United Kingdom saw through its two-decades long experiment. Research partnerships--akin to the U.K.'s grassroots forensic overhaul--could be the drastic (and palatable) change needed.
B. ACKNOWLEDGING THAT PROBABLY NOTHING IS PERFECT
While creating research partnerships is likely a far cry from a massive federal level entity, a bottom-up approach will bridge the chasm between forensic research and practice, while developing the infrastructure needed for industrywide reform.
The drawback to a grassroots effort is, of course, its inherent ad hoc nature that, without any additional controls, will simply be a redundancy of the current system. As the NAS Report noted: "[I]t is not clear how these associations interact or the extent to which they share requirements, standards, or policies. Thus, there is a need for more consistent and harmonized requirements." (402) In the research partnership model, this question of interaction will be an issue. Research partnership agencies and subagencies might not have adequate means of communication. A method for communicating efforts to improve standardization with other researchers and crime labs would be needed. The risk is that, with so many different organizations all attempting to reform forensic science, there is bound to be overlap and inefficiency. To this end, establishing an advisory committee, (403) where membership represents a balanced cross-section of the different disciplines and research labs, would go a long way toward communicating concerns and implementing uniform standards among the research partnerships.
Nonetheless, the work will have to proceed in conversation with the broader criminal justice system. Reforming forensic science in a vacuum-- even with the cooperation of crime labs--leaves out the end users of the forensic product. Thus, research must be performed with attention to courtroom admissibility and the realities of the criminal justice system. Such an effort requires transparency in both evidence analysis and use (the encompassing crime-to-conviction model), achieved only by clearly documenting what information is observed and how it has been interpreted. After observing the evidence, for example, it must then be translated into value for a particular purpose ("suitability"). Defining what is suitable evidence is a policy decision that may be static or plastic. Based on the evidence observations, the analysis should articulate why, for example, a print is or is not suitable for a specific purpose. Clearly defining "suitability" should be considered not only for ensuring consistency between examiners but also for identifying complex comparisons, which may require additional measures of quality assurance to mitigate risks of error. Forensic reform must also keep in mind the judges and juries who will analyze and assess the information.
As Jane Moriarty posits, even when science is clearly inadequate, judges have been unwilling to rigorously examine it because they are set in their ways and "cannot seem to imagine" excluding evidence that commonly comes in. (404) In one case where defense counsel challenged his client's conviction based on the NAS Report's condemnation of the science's validity, the judge reasoned that the NAS Report "merely presents a general picture of the current processes and pitfalls of toolmark identification and identifies possible methods of improvement." (405) Other judges have likewise noted that the NAS Report's recommendations are important but still refuse to consider them. (406)
Any forensic science reform needs also to accept that courts are particularly resistant to change. Because Daubert requires judges to act as gatekeepers, admitting "good science" into their courtrooms and turning away everything else, (407) forensic reform should encourage the dissemination of forensic research in terms non-scientists can understand. (408) Without an understanding of the faulty validity of many of the forensic sciences, judges will continue to admit such evidence at trial.
The American criminal justice system is made up of counties, cities, states, and the federal government. Despite being seriously underfunded, understaffed, and undertrained in forensic science, state and local organizations handle the vast majority of law enforcement activity. (409) Alongside the lack of training and funding, the lack of unification among the various systems results in fragmentation. If accreditation and standardization criteria exist, they differ markedly from jurisdiction to jurisdiction. (410) In fact, most U.S. jurisdictions require no formal certification for their forensic science practitioners. (411) The structure of the American government, with shared responsibility between the federal and state governments, presents its own problems for reworking the system. As the NAS Report noted, the federal government cannot unilaterally mandate a new forensic program without infringing on authorities typically reserved to the states. (412) Instead, collaboration would be necessary. With a system so divided, however, the idea of universally overhauling forensic science is enough to send any politician running. And if the workload does not do it, the funding woes certainly would.
While news stories have extensively detailed faulty forensics leading to innocent persons spending time in prison, their focus is on bad science rather than ineffectual standards that fail to regulate a science that works when it is conducted properly. (413) Unless the public focus shifts from blaming science to blaming policies, it is unlikely that Congress will make any significant steps toward unifying the system. We need to invest in a more efficient and quality friendly framework.
C. SETTING A STAGE FOR REFORM
Even with these obstacles, the United States could still achieve a program comparable to that in the United Kingdom by utilizing existing frameworks to create research partnerships.
The United Kingdom's forensic science program, once a predominantly public entity, thrived after the government released control in favor of the competition and cost effectiveness that come with private markets. Although many fought back, arguing that closing FSS favored saving money at the expense of quality, (414) data suggests that is not the case. It is doubtful that research partnerships might ultimately privatize the U.S. system of forensic science (or at least decouple crime labs from law enforcement agencies). After all, the United Kingdom is far smaller, with fewer jurisdictions and less crime. Moreover, similar privatization in the U.S. prison system (415) has been widely criticized. (416) Finally, the U.K. system could be characterized as capitalism all dressed up: it requires much more than a new dress and some shoes. To decrease costs while improving quality standards, as the United Kingdom did, the traditional idea behind capitalism--privatizing industry to increase competition--would probably require significant government regulation.
In the realm of forensic science, there are only so many samples available for labs to analyze. Taking steps toward establishing a privatized (and thus, competitive) forensics industry--coupled with quality regulation and government funding--would promote the use of cost-efficient procedures that produce valid, reliable, and accurate results. In this respect, decoupling crime labs from law enforcement agencies would add additional layers of protection. As one former FBI assistant director explained, investigations showed that labs controlled by law enforcement often reported results biased in favor of the prosecution. (417) Whether intentional or not, the bias undermines the system's credibility, calling into question reliable techniques and reducing confidence in forensics as a whole. Coupled with the decreased costs and increased efficiency that would follow, a system of research partnerships sets the "path forward" that the NAS Report called for back in 2009. While forensic science is not prepared for its own version of an FDA, the use of something less drastic than a federal watchdog is a good incentive to induce action. While the specter of wrongful convictions should be (although I acknowledge it is not) a good enough reason to consider a change in course, there are other incentives. If forensic science as an industry would adopt a research partnership platform, we could finally begin to set baseline requirements for standards and quality while simultaneously increasing efficiency and decreasing costs.
Evidence admissibility is largely dependent on implementing and enforcing comparable standards, which should be achieved for the entire forensic process, from crime scene to courtroom. Yet, consistency and predictability across the forensic nervous system are few and far between. Ultimately, we can do better. Establishing a federal entity to oversee reforms in forensic science attempts to accomplish too much in a sector that remains fragmented and impervious to change. Research partnerships between crime labs and universities, on the other hand, will improve lab efficiency, foster communication between labs, and unify oversight. Improving crime labs would directly correlate to keeping innocent defendants out of jail, and in some cases, alive. Research partnerships should prioritize the NAS Report recommendations to streamline, simplify, and accelerate forensic reform. Only when all crime labs speak the same language, use the same methodologies and protocols, and embrace the "science" component of their name will forensic science be better. Reforming forensics is no small task. It will take cooperation from scientists, lawyers, judges, and policymakers--but it can be done. Forensic science should prevent wrongful convictions, not cause them. "There are only two mistakes one can make on the road to truth: not going all the way, and not starting." (418) This is our opportunity to set forensic science right before it gets the result wrong and it stays that way.
(1) COMM. ON IDENTIFYING NEEDS OF FORENSIC SCI. CMTY. ET AL., NAT'L RESEARCH COUNCIL OF NAT'L ACADS., STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD 14 (2009) [hereinafter NAS REPORT].
(2) See Matt Clarke, Crime Labs in Crisis: Shoddy Forensics Used to Secure Convictions, Prison Legal News, http://goo.gl/UXrlgI (last visited Oct. 14, 2013) (explaining that crime lab officials "reacted with predictable outrage" to the NAS report); Gregory S. Klees, SWGGUN Initial Response to the NAS Report, SCIENTIFIC WORKING GRP. FOR FIREARMS & Toolmarks, http://goo.gl/PzoH76 (last visited Oct. 14, 2013) ("The [Scientific Working Group for Firearms and Toolmarks] has been aware of the scientific and systemic issues identified in this report....").
(3) See NAS REPORT, supra note 1, at 14 (pointing to the "variability in capacity, oversight, staffing, certification, and accreditation across federal and state jurisdictions" and the "backlogs in state and local crime laboratories" as two symptoms of the broken state of forensic science).
(4) JON B. GOULD ET AL., PREDICTING ERRONEOUS CONVICTIONS: A SOCIAL SCIENCE APPROACH TO MISCARRIAGES OF JUSTICE 76 (2012), available at http://goo.gl/hBSsyV; see also NAS Report, supra note 1, at 4.
(5) People v. Starks, 975 N.E.2d 71, 72 (111. App. Ct. 2012).
(6) Id. at 73, 77.
(7) Starks v. City of Waukegan, No. 09 C 348, 2013 U.S. Dist. LEXIS 71610, at *2, *5-6 (N.D. 111. May 21, 2013).
(8) Starks, 975 N.E.2d at 73; see also Starks, 2013 U.S. Dist. LEXIS 71610, at *2, *5.
(9) Starks, 975 N.E.2d at 72-73.
(10) Id. at 72.
(11) Id. at 77.
(14) Id. at 74.
(15) See Starks v. City of Waukegan, No. 09 C 348, 2013 U.S. Dist. LEXIS 71610, at *11 (N.D. 111. May 21, 2013). Starks brought a civil suit against the two dentists and the forensic serologist (among others) for violating his Fourteenth Amendment right to due process by intentionally misapplying the methodologies that led to their conclusions, knowingly giving false testimony to the jurors, and conspiring to secure Starks's conviction. See id. at *2-3, *6.
(16) See Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1,12 (2009).
(17) See The NAS Report Update, 1 EVIDENCE TECH. MAG. 12,13 (March-April 2009) ("The number-one recommendation offered in the NAS report call[ed] for the formation of an independent federal entity, the National Institute of Forensic Science " (citation omitted)).
(18) See Bernadette Mary Donovan & Edward J. Ungvarsky, Strengthening Forensic Science in the United States: A Path Forward--or Has It Been a Path Misplaced?, 36 Champion 22, 23-24, 27 (2012) (outlining issues with the Criminal Justice and Forensic Science Reform Act--which proposes federal oversight in the form of an agency located within DOJ, in stark contrast to the NAS Report's emphasis on independence from law enforcement--and describing opposition from prosecutors and forensic scientists to defense counsel's use of the NAS Report).
(19) In Law and Order terms, accuracy and precision are "two separate yet equally important" concepts. "Accuracy" evaluates whether the correct result can be reached and what the strength of that result is; "precision" measures the repeatability or reproducibility of the same result. See Jessica D. Gabel, Probable Cause from Probable Bonds: A Genetic Tattle Tale Based on Familial DNA, 21 Hastings Women's L.J. 3, 23 (2010); Quality Assurance Standards for Forensic DNA Testing Laboratories, Fed. Bureau OF Investigation, http://goo.gl/NE3wL4 (last visited Nov. 24,2013).
(20) William C. Thompson et al., Forensic DNA Statistics: Still Controversial in Some Cases, 36 Champion 12, 12 (2012) ("[W]hen labs try to 'type' samples that contain too little DNA, or DNA that is too degraded, the results of the DNA test can be unreliable.").
(21) Wrongful convictions are also not a creature of the twentieth century. In Perry's Case, 14 How. St. Tr. 1312 (1660), a servant named Perry went to search for his master, Harrison, after Harrison went missing. Perry disappeared, but was found with some of Harrison's bloody items. Id. at 1313-14. Harrison's body was never found, and Perry gave inconsistent stories. Id. at 1314-16. Perry was hanged. Id. at 1319. Harrison returned some time later with a story of being robbed, taken by force to Turkey, and forced into slavery. Id. at 1313.
(22) See Gould et al., supra note 4, at iii, xii.
(23) See About the Innocence Project, INNOCENCE PROJECT, http://goo.gl/iLWcRE (last visited Nov. 24, 2013).
(24) See Nancy Petro, Federal Grant Will Target Wrongful Conviction Cases with No DNA, WRONGFUL CONVICTIONS BLOG (Aug. 11, 2012, 8:50 AM), http://goo.gl/VnJ84V ("The vast majority of criminal cases--some estimate up to 90 percent--do not have DNA evidence to help settle claims of wrongful conviction.").
(25) NAS Report, supra note 1, at xx.
(26) See id. at xix (noting that the impetus of the report was congressional recognition "that significant improvements are needed in forensic science.").
(27) See id. at xx (explaining that the consistent message conveyed to the NAS committee by guest speakers in various areas of the forensic science industry was that a federal system is necessary to effectuate reform); see also Forensic Science and Standards Act of 2013, H.R. 3064, 113th Cong. (2013).
(28) See Donovan & Ungvarsky, supra note 18, at 23-26 (outlining the shortcomings of legislation proposed in the wake of the NAS Report).
(29) See Jessica D. Gabel & Ashley D. Champion, Response, Regulating the Science of Forensic Evidence: A Broken System Requires a New Federal Agency, 90 Tex. L. Rev. See ALSO 19, 26-27 (2011) (arguing that a federal agency should be created to regulate forensic services nationwide).
(30) Richard Willing, Errors Prompt States to Watch Over Crime Labs, USA TODAY, Mar. 31, 2006, at 3 A (quoting Texas State Senator Juan "Chuy" Hinojosa).
(31) But see In re Davis, 557 U.S. 952, 955 (2009) (Scalia, J., dissenting) ("This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent.").
(32) See NAS REPORT, supra note 1, at 4 ("[I]n some cases... testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people.").
(33) This is not to say that forensic science does not have its place in the criminal justice system. Rather, it needs to be presented in context and in light of its weaknesses.
(34) For example, Dr. Henry Lee is an accomplished forensic analyst who has worked on high-profile cases, including the JonBenet Ramsey case, the O.J. Simpson case, and the Casey Anthony case. See Bianca Prieto & Walter Pacheco, Star Criminalist Joins Defense Team, ORLANDO SENTINEL, Nov. 15, 2008, at Bl; Famous Cases, DRHENRYLEE.COM, http://goo.gl/Zob0TH (last visited Oct. 15, 2013).
(35) Craig M. Cooley, Nurturing Forensic Science: How Appropriate Funding and Government Oversight Can Further Strengthen the Forensic Science Community, 17 Tex. WESLEYAN L. REV. 441,442 (2011) (emphasis omitted).
(36) Melendez-Diaz v. Massachusetts, 557 U.S. 305, 319 (2009).
(37) Pamela R. Metzger, Cheating the Constitution, 59 Vand. L. Rev. 475, 491 (2006).
(38) See Know the Cases: DNA Exoneree Case Profiles, INNOCENCE PROJECT, http://goo.gl/NCkK94 (last visited Apr. 14, 2014).
(39) See Know the Cases: Search the Profiles, INNOCENCE PROJECT, http://goo.gl/viNlZ5 (last visited Apr. 14,2014).
(40) GOULD ET AL., supra note 4, at 16.
(41) NAT'L INST, OF JUSTICE, U.S. DEP'T OF JUSTICE, STATUS AND NEEDS OF FORENSIC SCIENCE SERVICE PROVIDERS: A REPORT TO CONGRESS 2 (2006) [HEREINAFTER STATUS AND NEEDS], available at http://goo.gl/UKJgzi.
(42) Saul M. Kassin et al., The Forensic Confirmation Bias: Problems, Perspectives, and Proposed Solutions, 2 J. APPLIED RES. MEMORY & COGNITION 42,43 (2013).
(44) See NAS REPORT, supra note 1, at 6-7.
(45) See id.
(46) See id.
(47) See id. at 40-41. See generally The Use of DNA in Criminal Investigations: Hearing on S. 775 Before the S. Comm, on the Judiciary, 2011-2012 Leg., 195th Sess. (Pa. 2011) (statement of David H. Kaye, Professor of Law, Penn State Dickinson School of Law), available at http://goo.gl/DXdLrE.
(48) See NAS REPORT, supra note 1, at 7 ("In terms of scientific basis, the analytically based
(49) Low Copy Number DNA usually refers to DNA from which it is difficult to obtain a full profile due to "damaged or degraded DNA, oligospermic or aspermic perpetrators or from extended interval post coital samples, where sperm have been lost over time due to the effects of drainage or host cell metabolism." DNA Analyst Training: Low Copy Number DNA, Nat'lForensic Sci. Tech. Ctr., http://goo.gl/lah2Ip (last visited Apr. 14, 2014).
(50) See generally Thompson et al., supra note 20 (discussing the problems with mixture, low copy DNA, and degraded samples).
(51) See NAS REPORT, supra note 1, at 8.
(52) See Jonathan J. Koehler, Fingerprint Error Rates and Proficiency Tests: What They Are and Why They Matter, 59 HASTINGS L.J. 1077, 1079 (2008).
(53) See NAS Report, supra note 1, at 8.
(54) Jennifer L. Mnookin et al., The Needfor a Research Culture in the Forensic Sciences, 58 UCLA L. Rev. 725, 778 (2011).
(55) See NAS Report, supra note 1, at 184.
(57) See Unreliable or Improper Forensic Science, INNOCENCE PROJECT, http://goo.gl/gs5CFA (last visited Apr. 14, 2014).
(58) See, e.g., United States v. Crisp, 324 F.3d 261, 268 (4th Cir. 2003) ("While the principles underlying fingerprint identification have not attained the status of scientific law, they nonetheless bear the imprimatur of a strong general acceptance, not only in the expert community, but in the courts as well.").
(59) DNA is often heralded as the gold standard, and the NAS Report cites it as the one method that "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." NAS REPORT, supra note 1, at 7.
(60) See GOULD ET AL., supra note 4, at xix.
(61) See Jessica D. Gabel & Margaret D. Wilkinson, "Good" Science Gone Bad: How the Criminal Justice System Can Redress the Impact of Flawed Forensics, 59 Hastings L.J. 1001, 1003-13 (2008) (outlining examples of faulty testing methods that result in wrongful convictions).
(62) GOULD ET AL., supra note 4, at xix-xx, 16-19.
(63) See Spencer S. Hsu, Defendants Left Unaware of Flaws Found in Cases, WASH. POST, Apr. 17,2012, at Al.
(64) See generally Clive A. Stafford Smith & Patrick D. Goodman, Forensic Hair Comparison Analysis: Nineteenth Century Science or Twentieth Century Snake Oil?, 27 COLUM. HUM. RTS. L. REV. 227 (1996) (discussing studies showing a propensity for false matches in hair analysis and their role in wrongful convictions).
(65) Hsu, supra note 63.
(66) See id.
(67) See id.
(68) MICHAEL R. BROMWICH, U.S. DEP'T OF JUSTICE, THE FBI LABORATORY: AN INVESTIGATION INTO LABORATORY PRACTICES AND ALLEGED MISCONDUCT IN EXPLOSIVES-RELATED AND OTHER CASES: EXECUTIVE SUMMARY (1997) [HEREINAFTER EXECUTIVE SUMMARY], available at http://goo.gl/vkqYfY.
(69) Hsu, supra note 63.
(71) See id.
(72) See Killer Is Executed in Texas, N.Y. Times, Apr. 22, 1997, at A16. In addition to the faulty hair evidence, the former pathologist who performed the victim's autopsy, Dr. Ralph R. Erdmann, was sentenced to ten years of probation in 1992 for seven felony counts involving falsified autopsies in various Texas counties. See Bobby Cervantes, DNA Testing Flaws Concern Attorneys, AMARILLO GLOBE-NEWS, Aug. 18, 2012, at Al; Roberto Suro, Ripples of a Pathologist's Misconduct in Graves and Courts of West Coast, N.Y. TIMES, Nov. 22, 1992, atA22.
(73) Debra Cassens Weiss, Review Found FBI Hair Analysis Flaws in 250 Cases, But DOJ Didn't Inform Defendants and Public, A.B.A. J. (Apr. 17, 2012, 6:00 AM), http://goo.gl/02CqKL.
(74) SEE EXECUTIVE SUMMARY, supra note 68.
(75) See id.
(76) See Hsu, supra note 63.
(77) See id. ; see also Spencer S. Hsu, 2 Jurors Back Exoneration of Man Found Guilty in DEATH, WASH. POST, Oct. 18, 2012, at B1.
(78) See Hsu, supra note 63; see also Hsu, supra note 77 (describing a juror's suspicion that other jurors wrongly discounted Tribble's detailed alibi).
(79) See Hsu, supra note 63.
(80) See id.
(81) See id.
(82) See id.
(83) See id.
(84) Spencer S. Hsu, Conviction Vacated in 1978 D.C. Killing, Wash. Post, May 17, 2012, at B1.
(85) See Hsu, supra note 63. By contrast, Cameron Todd Willingham received a death sentence and was later executed by the State of Texas on what even staunch death penalty supporters deem faulty arson evidence. Fire Expert Criticizes Investigation that Led to Execution, CNN Justice (Jan. 7, 2011, 9:41 PM), http://goo.gl/80jCzx; see also Marc Price Wolf, Habeas Relief from Bad Science: Does Federal Habeas Corpus Provide Relief for Prisoners Possibly Convicted on Misunderstood Fire Science?, 10 MINN. J. L. SCI. & TECH. 213, 230-31, 246-47 (2009) (analyzing the faulty science on which Willingham was
convicted, and subsequently executed); David Grann, Trial by Fire: Did Texas Execute an Innocent Man?, NEW YORKER, Sept. 7, 2009, at 42.
(86) See Hsu, supra note 63.
(89) See Know the Cases: Kirk Odom, INNOCENCE PROJECT, http://goo.gl/DlVBNT (last visited Apr. 14, 2014).
(90) See Hsu, supra note 63; see also Spencer S. Hsu, After DNA Retesting, Kirk Odom Exonerated, WASH. POST, July 14, 2012, at B6.
(91) See Know the Cases: Kirk Odom, supra note 89; Know the Cases: Santae Tribble, Innocence Project, http://goo.gl/FOHLht (last visited Apr. 14,2014).
(92) See Know the Cases: Kirk Odom, supra note 89.
(94) See id.
(95) See Hsu, supra note 77.
(96) Press Release, Fed. Bureau of Investigation, FBI Clarifies Reporting on Microscopic Hair Comparisons Conducted by the Laboratory (July 13, 2012), available at http://goo.gl/bhoaDC.
(97) See Paul Wagner, DNA Shows Flawed Science Used at Trial, myFOXdc.com (Mar. 16, 2012, 12:49 PM), http://goo.gl/L3nMsD; see also Hsu, supra note 63 (noting that "[Machen's] office would try to review all convictions that used hair analysis" (emphasis added)).
(98) See, e.g., Paul C. Giannelli, Microscopic Hair Comparisons: A Cautionary Tale, 46 CRIM. L. BULL. 531 (2010) (examining the judicial history and the lack of empirical basis in the techniques of microscopic hair analysis and its role in wrongful convictions).
(99) See Gabel & Wilkinson, supra note 61. In "Good" Science Gone Bad, Margaret Wilkinson and I called upon legislatures to consider avenues for redressing wrongful convictions won through junk science. Notably, Texas responded to that challenge in June 2013 and enacted a law that ensures access to the courts for habeas corpus writs based on science that is later deemed to be unreliable (or new science that did not exist at the time of conviction). TEX. CODE CRIM. PROC. Ann. art. 11.073 (West Supp. 2013). This effort should be applauded, though time will tell if other states follow suit and whether individuals are able to successfully use this mechanism.
(100) See DAVID R. ASHBAUGH, QUANTITATIVE-QUALITATIVE FRICTION RIDGE ANALYSIS: AN INTRODUCTION TO BASIC AND ADVANCED RIDGEOLOGY 1-9 (1999) (outlining the evolution of friction ridge analysis).
(101) See, e.g., Commonwealth v. Patterson, 840 N.E.2d 12, 17 (Mass. 2005) ("[M]ost agencies in the United States no longer mandate any specific number [of matches.] Rather, the examiner uses his expertise, experience, and training to make a final determination." (citation omitted)).
(102) See Robert Epstein, Fingerprints Meet Daubert: The Myth of Fingerprint "Science" Is Revealed, 75 S. Cal. L. Rev. 605, 638 (2002) (noting that the number of matching characteristics sufficient for identification is "entirely subjective").
(103) See, e.g., Tamara F. Lawson, Can Fingerprints Lie? Re-weighing Fingerprint Evidence in Criminal Jury Trials, 31 Am. J. Crim. L. 1, 24 (2003) (finding that "[n]o one can say, with any certainty, whether fingerprint identification evidence is always truly accurate" because very little independent data exists); see also id. at 32 (recognizing that most "testing" of forensic evidence occurs in adversarial proceedings and is "an insufficient substitute for rigorous empirical study and scientific testing" (emphasis added)).
(104) See Office of Inspector Gen., U.S. Dep't of Justice, A Review of the FBI's HANDLING OF THE BRANDON MAYFIELD CASE 1 (2006), available at http://goo.gl/xzik2o.
(105) See id.
(106) See id. at 2.
(107) See id.
(108) See id.
(109) See id. at 3.
(110) See id.
(111) See id.
(112) See id.
(113) See id.
(114) See id. at 6.
(115) See id. at 6-7, 12 (noting that Mayfield's religion "likely contributed to the examiners' failure to sufficiently reconsider the identification after legitimate questions about it were raised").
(116) See id. at 8-10.
(117) For a critique of fingerprint analysis technique, see generally Epstein, supra note 102.
(118) NAS Report, supra note 1, at 143 (quoting Lyn Haber & Ralph Norman Haber, Scientific Validation of Fingerprint Evidence Under Daubert, 7 L. PROBABILITY & RISK 87, 105 (2008)).
(119) One technique used to examine fingerprints is referred to as the "ACE-V" method (Analysis, Comparison, Evaluation, and Verification). At the analysis stage, the examiner inspects the fingerprint at issue and determines if it is suitable for analysis. The comparison stage requires the examiner to visually compare the prints side-by-side under a magnifier. The evaluation consists of the examiner determining whether certain friction ridges agree between the two prints. Finally, the verification stage is meant to require a second examiner independently to conduct the same examination, but often this only amounts to a second examiner reviewing the determination of a "match," rather than conducting an independent investigation. See NAS REPORT, supra note 1, at 137-39.
(120) 526 U.S. 137, 147-49(1999).
(121) See Epstein, supra note 102, at 621; Lawson, supra note 103, at 15-16, 33-34.
(122) See Jennifer L. Mnookin, The Validity of Latent Fingerprint Identification: Confessions of a Fingerprinting Moderate, 7 L. PROBABILITY & RISK 127,131 (2008).
(123) See Bradford T. Ulery et al., Repeatability and Reproducibility of Decisions by Latent Fingerprint Examiners, 1 PLoS ONE 1, 6 (2012).
(124) See Kassin et al., supra note 42, at 43.
(126) See, e.g., Denise Lavoie, Ex-state Chemist Pleads Not Guilty, Boston Globe, Jan. 31, 2013, at B2.
(127) See, e.g., Madeleine Baran, Ramsey County Medical Examiner Michael McGee Under Investigation, Minn. Pub. Radio (Sept. 6,2011), http://goo.gl/5G5E17.
(128) See, e.g., Paul C. Giannelli, The North Carolina Crime Lab Scandal, A.B.A. Crim. Just. Mag., Spring 2012, at 43, available at http://goo.gl/yL6IEb.
(129) See Justin Peters, The Unsettling, Underregulated World of Crime Labs, Slate (Jan. 14, 2013, 3:46 PM), http://goo.gl/YZwUSX.
(130) See id.
(131) Becky Beaupre & Peter Eisler, Crime Lab Crisis: Evidence Backlog Imperils Justice, USA Today, Aug. 20,1996, at 1A.
(132) See NAS Report, supra note 1, at 6.
(134) See Memorandum from Marvin E. Schechter on ASCLD/LAB and Forensic Lab. Accreditation to Members of the N.Y. State Comm'n of Forensic Sci. 23 (Mar. 25, 2011) [hereinafter Memorandum], available at http://goo.gl/kXZGgs.
(135) See Justin Peters, Crime Labs Botch Tests All the Time. Who's Supposed to Make Sure They
Don't Screw Up?, Slate (Jan. 17,2013, 6:08 PM), http://goo.gl/Z0WRlX ("Laboratory inspections are always on notice to a laboratory rather than by surprise____").
(136) See id
(137) See Memorandum, supra note 134, at 23.
(138) See Clarke, supra note 2 ("[FJorensic experts and other lab personnel may lie about test results, be misleading about the reliability of their methods, and/or cover up test outcomes when they are beneficial to the defendant.").
(139) See id.; see also Denise Lavoie & Erika Niedowski, Annie Dookhan, Chemist in Drug Lab Scandal, May Face More Charges, Huffington Post (Sept. 29, 2012, 3:05 AM), http://goo.gl/qeoyCd (describing the case of a chemist accused of, inter alia, reporting positive test results when the test was actually negative, adding cocaine from another sample to the negative sample to produce a positive result, and lying about obtaining a master's degree in chemistry from the University of Massachusetts).
(140) See Clarke, supra note 2.
(141) See id.
(142) See Disturbing Trend of Dry Labbing May Be More Common than Originally Thought, Senators Firm Blog (Jan. 12,2012,2:35 PM), http://goo.gl/nYDqYC.
(143) See Peters, supra note 135 (citation omitted).
(144) For a list of crime lab scandals, see Mnookin et al., supra note 54, at 728 n.5. From 2005 to 2011, there were at least fifty serious failures at U.S. crime labs, with more than half attributable to ASCLD/LAB-certified labs. See Memorandum, supra note 134, at 14. Since 2011, crime lab failures continue to mount. See Mark Hansen, Crime Labs Under the Microscope After a String of Shoddy, Suspect and Fraudulent Results, A.B.A. J. (Sept. 1, 2013, 5:20 AM), available at http://goo.gl/BSnolq.
(145) See Error-Prone Detroit Crime Lab Shut Down, USA TODAY (Sept. 25, 2008, 10:34 PM), http://goo.gl/Ku3Pb2. In response to the crime lab's scandal, a Detroit prosecutor said, "As prosecutors, we completely rely on the findings of police crime lab experts every day in court, and we present this information to our juries.... [W]hen there are failures of this magnitude, there is a complete betrayal of trust. We feel betrayed, as prosecutors." Id.
(146) See John Rudolf, Scandal-Plagued North Carolina Crime Lab Sued by Exonerated Man, HUFFINGTON POST (June 30, 2011, 11:03 AM), http://goo.gl/7fFol3.
(147) See New York County Crime Lab Closed Down in Probe, REUTERS (Feb. 18, 2011, 5:16 PM), http://goo.gl/TkCScp.
(148) See STATE OF N.Y. OFFICE OF INSPECTOR GEN., INVESTIGATION INTO THE NASSAU COUNTY POLICE DEPARTMENT FORENSIC EVIDENCE BUREAU 105 (2011), available at http://goo.gl/HRoKBv.
(149) See, e.g., Second Mistrial Declared in SF Crime Lab Scandal, ABC 7 News (Jan. 31, 2013), http://goo.gl/GYLIGE.
(150) See id.
(151) See Elizabeth Roman, Chemist Charged; Crime Lab Closed, THE REPUBLICAN, Jan. 21,2013, at Al.
(152) See Sally Jacobs, Chasing Renown on a Path Paved with Lies, BOSTON GLOBE, Feb. 3, 2013, at Al.
(153) See Denise Lavoie, Lawyers Expect Appeals in Mass. Crime Lab Case, B0ST0N.C0M (Sept. 13, 2012), http://goo.gl/wmEAyV.
(154) See Lavoie, supra note 126.
(155) See Peters, supra note 129.
(156) See Lavoie & Niedowski, supra note 139.
(157) See Matt Murphy, Chemist at Center of Drug Lab Case Told Police She "Messed Up Bad," EAGLE TRIB. (Sept. 27,2012), http://goo.gl/SbjcvD.
(158) Justin Peters, No National Crime Lab Standards, The Republican (Jan. 20, 2013, 6:05 PM), http://goo.gl/MIeA5w.
(159) See Lavoie & Niedowski, supra note 139.
(160) See Peters, supra note 158.
(161) Milton J. Valencia et al., Scope of Lab Scandal Widens, BOSTON GLOBE, Oct. 13, 2012, at B1.
(162) See Former Toxicologist Sentenced for Lying About Credentials, 10TV.COM (May 18, 2010, 11:07 AM), http://goo.gl/KwmlUI. Dookhan also lied about her credentials at various stages of her career. See Jacobs, supra note 152. Dookhan at one point claimed to have a master's degree and said she was working toward a doctoral degree from Harvard--neither of which was true. See id. "She inflated her salary and gave herself grandiose job titles, referring to herself in an e-mail as 'an on-call supervisor for chemical and biological terrorism.'" Id.
(163) See Former Toxicologist Sentenced for Lying About Credentials, supra note 162.
(164) See id.
(165) See Baran, supra note 127.
(166) See Madeleine Baran, Court Drops Charges Against Man Awaiting Retrial for Daughter's Murder, Minn. Pub. Radio (Sept. 16,2011), http://goo.gl/yOOZhZ.
(167) See Giannelli, supra note 128. Even where there is not a stated policy favoring law enforcement, the personal relationships between prosecutors and crime labs can instill a sense of loyalty toward the prosecution. Again, Dookhan's case is instructive. A string of emails between the disgraced chemist and state prosecutors revealed that Dookhan saw her role as anything but a neutral scientist. See Andrea Estes & Scott Allen, Chemist Built Up Ties to Prosecutors, Boston Globe, Dec. 21, 2012, at A1 ("Dookhan... viewed herself as part of the prosecution team, the e-mails show. She coached assistant district attorneys on trial strategy and told one that her goal was 'getting [drug dealers] off the streets.'"). Another district attorney resigned over a string of suggestive e-mails with Dookhan. See id.
(168) See Giannelli, supra note 128.
(169) Jessica Hopper, Feds: North Carolina Crime Lab Buried Blood Evidence, ABC NEWS (July 18,2010), http://goo.gl/ejqesP.
(170) See id.
(171) See, e.g., Massachusetts Forensics Chief Tells Legislators Crime Lab Scandals Contributed to Two-year Backlog, The Republican (Feb. 20, 2013, 2:03 PM), http://goo.gl/9cfSn3.
(172) See Valencia, supra note 161.
(173) See id.
(174) See Jacobs, supra note 152. Some estimates run as high as 34,000 tainted cases. See Valencia, supra note 161. As of February 2013, nearly 300 offenders had been released. See Jacobs, supra note 152.
(175) See Peters, supra note 129.
(176) See John R. Ellement, Costs Climb in State Drug Lab Scandal, BOSTON GLOBE, Oct. 26, 2012, at Al.
(177) See id.
(178) See id. (detailing only that expenses would be used to hire retired judges, assistant clerk magistrates, case specialists, law clerks, probation officers, and associate probation officers).
(179) Cf. Roman, supra note 151.
(180) Rita Mae Brown, Sudden Death 68 (1983) (reciting a quote often misattributed to Albert Einstein, Benjamin Franklin, or Mark Twain).
(181) See Kenneth E. Melson, Embracing the Path Forward: The Journey to Justice Continues, 36 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 197,199 (2010).
(182) See id.
(183) See id.
(184) See id.
(185) Although little federal legislation was introduced in this area, Senator Abraham Ribicoff did present a joint resolution designating Wednesday, February 21, 1973, as a day of honor celebrating the twenty-fifth anniversary of the American Academy of Forensic Sciences. 93 Cong. Rjec. 425 (1973).
(186) COMM, ON DNA TECH, IN FORENSIC SCI., NAT'L RESEARCH COUNCIL, DNA TECHNOLOGY IN FORENSIC SCIENCE (1992); see also Paul C. Giannelli, Daubert and Forensic Science: The Pitfalls of Law Enforcement Control of Scientific Research, 2011 U. III. L. Rev. 53, 58; Melson, supra note 181, at 202.
(187) COMM, ON DNA FORENSIC SCI.: AN UPDATE, NAT'L RESEARCH COUNCIL, THE EVALUATION OF FORENSIC DNA EVIDENCE (1996); see also Melson, supra note 181, at 202.
(188) 509 U.S. 579 (1993).
(189) See Giannelli, supra note 186, at 58-59; Melson, supra note 181, at 202-03.
(190) See Melson, supra note 181, at 199.
(191) See id. at 199-200.
(192) See id.
(193) See Giannelli, supra note 186, at 58; Melson, supra note 181, at 203.
(194) Pub. L. No. 106-546, 114 Stat. 2726 (2000) (codified at 10 U.S.C. [section] 1565 (2012) and in scattered sections of 42 U.S.C.).
(195) Pub. L. No. 106-561, 114 Stat. 2787 (2000) (codified in scattered sections of 10 U.S.C. and 42 U.S.C.). Both Acts were first introduced in 1999. See DNA Backlog Elimination Act, H.R. 3087, 106th Cong. (1999); National Forensic Sciences Improvement Act of 1999, S. 1196,106th Cong. (1999).
(196) See Melson, supra note 181, at 201-02.
(197) See id. at 203.
(198) See id at 200.
(199) See id. at 200-01.
(200) See id.
(201) See id. at 201, see also 42 U.S.C. [section] 14136c(b)(l)-(9) (2006).
(202) See Melson, supra note 181, at 201-02.
(203) See NAS Report, supra note 1; see also Science, State, Justice, Commerce, and Related Agencies Appropriations Act of 2006, Pub. L. No. 109-108, 119 Stat. 2290 (2005).
(204) See NAS REPORT, supra note 1, at 5.
(205) See id. at 6.
(206) See Melson, supra note 181, at 204-05.
(207) H.R. 898, 111th Cong. (1st Sess. 2009). A previous version was introduced in 2007. H.R. 3151, 110th Cong. (1st Sess. 2007).
(208) COMM, ON SCI., NAT'L SCI. & TECH. COUNCIL, CHARTER OF THE SUBCOMMITTEE ON FORENSIC SCIENCES ([HEREINAFTER CHARTER OF THE SUBCOMMITTEE ON FORENSIC SCIENCE], available at http://goo.gl/VYNFqf; see also Paul C. Giannelli, The 2009 NAS Forensic Science Report: A Literature Review 2 (Case W. Reserve Univ. Sch. of Law, Working Paper No. 2012-11, 2012), available at http://goo.gl/slr4sY.
(209) See CHARTER OF THE SUBCOMMITTEE ON FORENSIC SCIENCE, supra note 208, at 1-2. The charter for the subcommittee was renewed in March 2012. See Comm, on Sci., Nat'l SCI. & TECH. COUNCIL, CHARTER OF THE SUBCOMMITTEE ON FORENSIC SCIENCES, available at http://goo.gl/8sulyA.
(210) Aside from the COPS Improvement Act of 2009, H.R. 1139, 111th Cong. (2009), which also died in committee, see H.R. 1139 (111th): COPS Improvements Act of 2009, GOVTRACK, http://goo.gl/kysjEM (last visited Apr. 14, 2014), the majority of legislation pertaining to forensics centered on DNA. See, e.g., Sexual Assault Forensic Evidence Registry (SAFER) Act of 2010, H.R. 6085, 111th Cong. (2010) (stating an intention to amend the DNA Analysis Backlog Elimination Act of 2000 and establish a forensic evidence registry for sexual assault).
(211) S. 132, 112th Cong. (2011).
(212) See S. 132 (112th): Criminal Justice and Forensic Science Reform Act of 2011, GovTrack, http://goo.gl/olr4GE (last visited Apr. 14,2014).
(213) See S. 132 [section] 101(a).
(214) See Forensic Science and Standards Act of 2013, H.R. 3064, 113th Cong. (2013); Forensic Science and Standards Act of 2012, H.R. 6106, 112th Cong. (2012).
(215) In 2012, Senator John D. "Jay" Rockefeller IV and Representative Eddie Bernice introduced companion legislation in the House and the Senate. See S. 3378, 112th Cong. (2012). Senator Rockefeller again introduced the bill before the 113th Congress on Feb. 12, 2014. The bill, S. 2022, was reported out of committee on April 9, 2014. See S. 2022: Forensic Science and Standards Act of 2014, GOVTRACK, http://goo.gl/esJ7EK (last visited Apr. 14, 2014).
(216) H.R. 3064 [section] 4(a).
(217) See id. [section][section] 4, 8. The prognosis for the bill's success appeared bleak; a legislation tracking website reported that the House bill had a 1% chance of being enacted. See H.R. 3064: Forensic Science and Standards Act of 2013, GovTrack, http://goo.gl/0973CJ (last visited Apr. 14, 2014). The Senate bill had a 28% of being enacted. See S. 2022: Forensic Science and Standards Act of 2014, supra note 215.
(218) See H.R. 3064 [section] 8(b), (d).
(219) See id. [section] 4(a).
(220) See id. [section] 4(c)(2).
(221) See id. [section] 5.
(222) See id. [section] 5(c)(1).
(223) See id.
(224) Id. [section] 7(a)(1)(B).
(225) See id.
(226) See id. [section] 7(a)(1)(B), (C).
(227) See id. [section] 7(b)(1).
(228) See id. [section] 7(c).
(229) See id. [section] 9(1), (2); S. 3378, 112th Cong. [section] 9(1 )(B) (2012).
(230) Senator Patrick Leahy, The Agenda of the Senate Judiciary Committee for the 113th Congress, Address at Georgetown University Law Center (Jan. 16, 2013), available at http://goo.gl/j 1 UsTR.
(231) Notice of Establishment of the National Commission on Forensic Science and
Solicitation of Applications for Commission Membership, 78 Fed. Reg. 12355 (Feb. 22,2013).
(232) See NAS REPORT, supra note 1, at 14 ("The forensic science disciplines currently are an assortment of methods and practices used in both the public and private arenas.").
(233) See id. at xx.
(234) See Gabel & Champion, supra note 29, at 26-27 (arguing that a federal agency should be created to regulate forensic services nationwide now, before states establish their own schemes); Melson, supra note 181, at 207 (arguing in favor of a national forensic science agency to reside within DOJ); see also Donovan & Ungvarsky, supra note 18, at 27 ("[T]he NAS Report has created a window of opportunity for defense counsel to demand meaningful reform on all fronts....").
(235) See, e.g., Ryan M. Goldstein, Note, Improving Forensic Science Through State Oversight, 90 Tex. L. Rev. 225, 234 (2011) (arguing that stronger state-level oversight would help with current problems in forensic sciences).
(236) Several national forensic science organizations already exist in different disciplines, including the American Academy of Forensic Sciences (AAFS), the American Society of Crime Laboratory Directors (ASCLD), the International Association for Identification (IAI), and the National Association of Medical Examiners (NAME). See STATUS AND NEEDS, supra note 41, at 2. Despite their existence, "it is not clear how these associations interact or the extent to which they share requirements, standards, or policies." NAS REPORT, supra note 1, at 16.
(237) See 545 U.S. 1, 23 (2005).
(238) I make no guarantees regarding the ultimate constitutionality of such regulations. That debate is better saved for a far-off day when the passage of such legislation appears realistic.
(239) See NAS REPORT, supra note 1, at 15.
(240) See Anthony J. Bellia Jr., Federal Regulation of State Court Procedures, 110 YALE L.J. 947, 952 (2001) (arguing that "Congress has no authority to prescribe procedural rules for state courts to follow in state law cases").
(241) See, e.g., Crime Laboratory, NEBRASKA.GOV, http://goo.gl/awzdMy (last visited Apr. 14, 2014) ("The Division... serves all local, county, state, federal and military law enforcement agencies in Nebraska."); Rhode Island State Crime Laboratory, Univ. R.I., http://goo.gl/5AVYHN (last visited Apr. 14, 2014) ("The RISCL has defined its customer base as all appropriate agencies investigating evidence relating to federal, state or local crimes.").
(242) 6 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S FEDERAL EVIDENCE T-1 (Joseph M. McLaughlin ed., Matthew Bender 2d ed. 2013) ("Forty-two states ... have adopted rules of evidence patterned on the Federal Rules of Evidence.").
(243) Jackson Holtz, Backlog Swells at Washington State Crime Lab, SEATTLETIMES.COM (Jan. 17, 2010, 8:39 PM), http://goo.gl/ka3xCc ("On average, it takes state experts more than six months to complete ballistics tests in cases involving firearms."); Melissa Maynard, Collection of DNA Evidence Grows, As Does Need for Federal Funding, WASH. POST, Mar. 19, 2012, at A13 (noting that "major backlogs persist"). But see Maryland v. King, 133 S. Ct. 1958, 1977 (2013) (asserting that technological advances are substantially reducing delays in processing DNA from arrestees).
(244) By way of example, Georgia changed its rules of evidence in May 2011 to reflect the federal rules. H.B. 24, 2011-2012 Leg., Reg. Sess. (Ga. 2011). The new rules did not go into effect until January 1, 2013.
(245) 23 U.S.C. [section] 158 (2012).
(246) South Dakota v. Dole, 483 U.S. 203, 203 (1987).
(247) Id. at 207 (internal quotation marks omitted).
(248) Id. at 207-08 (quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978) (plurality opinion)).
(249) Each portion of a national forensic standards program could theoretically be challenged, but the analysis here covers only a national forensic standards program as a whole.
(250) Dole, 483 U.S. at 208.
(251) Kathleen M. Sullivan & Gerald Gunther, Constitutional Law 166 (17th ed. 2010).
(252) President Obama's budget mentions making "tough choices to cut spending" and needing to "put our Nation's finances in order." Office of Mgmt. & Budget, Fiscal Year 2014 Budget of the United States Government 5,41 (2013).
(253) See Justice for All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260 (2004); 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, 116 Stat. 1758 (2002); Paul Coverdell National Forensic Sciences Improvement Act of 2000, Pub. L. No. 106-561, 114 Stat. 2787 (2000).
(254) Coverdell Forensic Science Improvement Grants Program, Nat'l Inst. OF JUSTICE, http://goo.gl/3HvVo4 (last visited Apr. 14, 2014).
(255) See Coverdell Forensic Science Improvement Grants Program: Applications and Awards, Nat'l Inst, of Justice (Apr. 2, 2013), http://goo.gl/lioivS (reporting $23.4 million in 2009; $33.3 million in 2010; $27.6 million in 2011; and $10.6 million in 2012).
(256) See Innocence Project, Investigating Forensic Problems in the United States: How the Federal Government Can Strengthen Oversight Through the Coverdell Grant Program 3 (2009), available at http://goo.gl/05vXNd.
(257) Office of Wis. State Pub. Defender, 2011 Annual Criminal Defense Conference, A Path Forward: Where Are We Now? 1-2 (2011) [hereinafter A Path Forward], available at http://goo.gl/Uvzslb.
(258) See NAS Report, supra note 1, at 142.
(259) Letter from Robert J. Garrett, President, Int'l Ass'n for Identification (Feb. 19, 2009), available at http://goo.gl/lNw6Ws.
(260) See Response of AFTE to the NAS Report (June 22, 2009), reprinted in A PATH Forward, supra note 257, at 2.
(261) The ASCLD/LAB Board Reacts to the NAS Study, ASCLD/LAB Newsletter (Am. Soc. of Crime Lab. Dirs., Lab. Accreditation Bd., Gamer, N.C.), Mar. 26, 2009, at 3, available at http://goo.gl/d3VV2A.
(262) Joseph Polski et al., The Report of the International Association for Identification, Standardization II Committee 35-36 (2010), available at http://goo.gFg3 Ls8x.
(263) Id. at 36.
(264) See NAS Report, supra note 1, at 8 (outlining the need for more extensive and scientific research in most disciplines of forensic science).
(265) As previously mentioned, nearly the entire NIJ budget has reflected such developments, with DNA testing reaping the most federal investment in research that NIJ has carried forward. See supra Part II.B. The same could be said for the U.K. government, which invested heavily in a DNA expansion program from 1999 to 2007. See Robin Williams & Paul Johnson, Genetic Policing: The Use of DNA in Criminal Investigations 115-16 (2008).
(266) Report, supra note 1, at 8.
(268) See id
(269) Koehler, supra note 52, at 1079.
(270) See Giannelli, supra note 186, at 57.
(271) See Paul C. Giannelli, Forensic Science: Why No Research?, 38 Fordham Urb. L.J. 503, 517 (2010). Justice Antonin Scalia, writing for the majority in Melendez-Diaz v. Massachusetts, observed how unsatisfactory training makes its way from the crime lab to the witness stand. 557 U.S. 305, 318 (2009). He noted that forensic science is not perfect but that some of its shortfalls could be remedied through cross-examination. See id. Justice Scalia noted that, for example, an analyst with insufficient training could be confronted on the stand. See id. at 320. He did not take note of the fact that a jury would not likely be persuaded to discredit that expert's testimony when such insufficient training is the norm.
(272) See Simon A. Cole, Where the Rubber Meets the Road: Thinking About Expert Evidence as Expert Testimony, 52 Vill. L. Rev. 803, 805 (2007).
(273) Id. at 807.
(274) See Mnookin et al., supra note 54, at 767-68.
(275) See generally James R. Acker & Catherine L. Bonventre, Protecting the Innocent in New York: Moving Beyond Changing Only Their Names, 73 Alb. L. Rev. 1245 (2010) (addressing the general failure of crime labs to compile data and report methodology for analysis by research scholars charting lab errors).
(276) See Giannelli, supra note 186, at 56-57.
(277) See id. at 56 (quoting NAS Report, supra note 1, at 18).
(278) As Judge Harry T. Edwards, cochair of the NAS Report committee and a judge on the U.S. Court of Appeals for the D.C. Circuit, stated, "[T]he most important part of our committee's report is its call for real science to support the forensic disciplines." Harry T. Edwards, The National Academy of Sciences Report on Forensic Sciences: What It Means for the Bench and Bar, 51 Jurimetrics 1, 9 (2010).
(279) See NAS Report, supra note 1, at 15 ("The broader research community generally is not engaged in conducting research relevant to advancing the forensic science disciplines.").
(280) Id. at 8.
(281) See id. at 16 ("Governance ... must be well connected with the Nation's scientific research base to effect meaningful advances in forensic science practices.").
(282) See Mnookin et al., supra note 54, at 744.
(283) Id. at 747.
(284) See NAS Report, supra note 1, at 8 ("A body of research is required to establish the limits and measures of performance and to address the impact of sources of variability and potential bias.").
(285) See id.
(286) See generally Mnookin et al., supra note 54.
(287) See id. at 237.
(288) See id. at 25 ("Standards should reflect best practices and serve as accreditation tools for laboratories and as guides for the education, training, and certification of professionals.").
(289) See Forensic Science and Standards Act of 2013, H.R. 3064, 113th Cong. [section] 7(a)( 1 )(B)(i) (2013).
(290) See id. [section] 7(a)(1)(B)(ii).
(291) The NAS Report notes that underfunded crime labs are in dire need of up-to-date equipment. See NAS Report, supra note 1, at 6, 59. Such inconsistencies in funding necessarily lead to inconsistencies in results. Further, insufficient equipment maintenance is also a common problem facing labs. See id. at 59-60. Even the FBI lab, which holds itself out as using "cutting-edge science," reported a need for additional equipment. See id. at 66; Using Cutting-Edge Science to Solve Cases and Prevent Acts of Crime and Terror, Fed. Bureau of Investigation, http://goo.gl/U79DOF (last visited Apr. 14,2014).
(292) See NAS Report, supra note 1, at 21.
(293) See id.
(294) See id. at 141.
(295) See id. at 21 ("Some forensic science laboratory reports meet [a high] standard of reporting, but many do not.").
(296) See id.
(297) Cf. id.
(298) Id. at 21, 113-14.
(299) Although accreditation is not mandatory, "[o]ther states with various types of forensic [oversight] boards include: Arizona, Minnesota, Missouri, Montana, New Mexico, New York, Rhode Island and Washington." Tex. Forensic Sci. Comm'n, Justice Through Science (2011), available at http://goo.gl/2y9vOL; see also Paul C. Giannelli, Wrongful Convictions and Forensic Science: The Need to Regulate Crime Labs, 86 N.C. L. Rev. 163, 170 (2007) ("The scandals have prompted Texas and Oklahoma to require their crime laboratories to be accredited, joining New York, which has mandated accreditation since 1994." (citations omitted)).
(300) See Tex. Code Crim. Proc. Ann. art. 38.35 (West Supp. 2013). Labs are not, however, required to be accredited to admit into evidence latent print examinations and various other forms of forensic analysis. Id. art. 38.35(a)(4).
(301) See Giannelli, supra note 299, at 190-91 (citation omitted).
(302) See NAS Report, supra note 1, at 6.
(303) Quality Policy, Am. Soc'y of Crime Lab. Dirs./Lab. Accreditation Bd., http://goo.gl/WUFaIE (last visited Apr. 14, 2014).
(304) See NAS Report, supra note 1, at 199-200.
(305) As of November 21, 2013, out of the 402 accredited labs, 194 are state labs, 132 are local agency labs, 31 are federal labs, 19 are international labs, and 26 are private labs. Accredited Laboratory Index, Am. Soc'y of Crime Lab. Dirs. / Lab. Accreditation Bd., http://goo.gl/tyeZXK. (last visited Apr. 14, 2014).
(306) See, e.g., Diane L. France, Forensic Anthropology: A Brief Review, CENGAGE Learning, http://goo.gl/KUB5s3 (last Apr. 14, 2014) ("Presently, not all individuals who identify themselves as forensic anthropological experts are board certified; although almost all have at least a master's degree and several years of experience.").
(307) See Giannelli, supra note 299, at 213.
(308) See id. at 213-14 ("Seventy-one percent of the crime laboratories tested provided unacceptable results in a blood test, 51.4% made errors in matching paint samples, 35.5% erred in a soil examination, and 28.2% made mistakes in firearms identifications." (citation omitted)); id. at 214 (noting that "[a] wide range of proficiency levels among the nation's laboratories exists, with several evidence types posing serious difficulties for the laboratories" (internal quotation marks and citation omitted)).
(309) See id at 214.
(310) See id. at 215.
(311) See id. at 214.
(312) See Forensic Science and Standards Act of 2012, FLR. 6106, 112th Cong. [section] 5(d)(1)(D) (2012).
(313) See, e.g., American Academy of Forensic Sciences Bylaws, Am. Acad. OF FORENSIC Scis., http://goo.gl/61MgGx (last visited Apr. 14, 2014).
(314) See NAS Report, supra note 1, at 26.
(315) See Allan Sincox & Marijane Hemza-Placek, Challenging the Admissibility of DNA Testing, 83 III. B.J. 170, 171 (1995) (outlining the steps of DNA testing typically used by police agencies, called Restriction Fragment Length Polymorphism testing).
(316) See Laboratory Services, Fed. Bureau of Investigation, http://goo.gl/X1zG6D (last visited Apr. 14, 2014).
(317) Integrated Automated Fingerprint Identification System, Fed. Bureau of Investigation, http://goo.gl/B5nvNW (last visited Apr. 14,2014).
(318) National Integrated Ballistic Information Network, Bureau of Alcohol Tobacco & Firearms, http://goo.gl/V82d2J (last visited Apr. 14,2014).
(319) See Jeremiah Goulka et al., RAND Ctr. on Quality Policing, Toward a Comparison of DNA Profiling and Databases in the United States and England 4 (2010).
(320) See Office of the Inspector Gen., U.S. Dep't of Justice, Review of the Federal Bureau of Investigation Laboratory's Forensic DNA Case Backlog 6 (2010), available at http://goo.gl/7Zk9Bk.
(321) Id. at 2.
(322) See NAS Report, supra note 1, at 31.
(323) Paul C. Giannelli, Independent Crime Laboratories: The Problem of Motivational and Cognitive Bias, 2 Utah L. Rev. 247,250 (2010).
(324) See Giannelli, supra note 186, at 75-76.
(325) See id.
(326) See 470 U.S. 68, 83-84 (1985).
(327) See Giannelli, supra note 186, at 75-76.
(328) See NAS Report, supra note 1, at 223-24. Currently, there is no doctoral program specifically in forensic science. See id.
(329) See NAS Report, supra note 1, at 234.
(330) Id. at 16.
(331) See id. at 189-90.
(332) See supra text accompanying notes 259-63. It seems much of the backlash concerned the NAS Report's recommendation that the national entity would be divorced from law enforcement. See, e.g., Joseph Polski, Forensic Science: A Critical Concern for Police Chiefs, 9 Police Chief 24-25 (2009).
(333) See Pawel Rybicki, Standardization in the Area of Scientific Evidence in European Union, in Policing in Europe, 16 J. Police Stud. 91, 92-94 (2010). Moreover, the ancillary benefit to this construct is that, with crime becoming increasingly global, having unified forensics in place makes good investigative sense as well. See id. at 93.
(334) Richard Gill, Forensic Sci. Serv., Study on Obstacles to Cooperation and Information-sharing Among Forensic Science Laboratories and Other Relevant Bodies of Different Member States and Between These and Counterparts in Third Countries 6 (2008), available at http://goo.gl/t45ui6.
(335) Establishment of the Department of Forensic Sciences, D.C.Code [section] 5-1501.02 (2011).
(336) Andrea Noble, Forensics Laboratory Opens in D.C., Wash. Times, Oct. 2, 2012, at A15; Zoe Tillman, D.C. Crime Lab Chief Outlines Strategy for Preventing Scandals, Blog of Legal Times (Oct. 30,2012,12:52 PM), http://goo.gl/zXXMfP.
(337) See Sam Pearson, District Moves Away from Police Control of Forensic Functions, Homicide Watch D.C. (Jan. 2,2013 9:00 AM), http://goo.gl/IwzMox.
(338) See id.; see also Tillman, supra note 336.
(339) See Pearson, supra note 337; cf. Tillman, supra note 336; Zoe Tillman, In Q&A, D.C. Forensic Sciences Chief Says Lab Moving Toward Accreditation, Blog of Legal Times (Jan. 28, 2013, 12:40 PM), http://goo.gl/I4cMOX. Specifically, the District of Columbia endeavored to respond to how the Report identified crippling fragmentation as the most significant threat to forensic science quality and credibility. In particular, the District of Columbia aimed to resolve the documented lack of uniform standards, training, and accreditation, as well as effective oversight of forensic science practices. See Tillman, supra note 336.
(340) See, e.g., Peters, supra note 129.
(341) See Noble, supra note 336.
(342) See Pearson, supra note 337. DFS Director Max Houck admitted that understanding and maintaining his lab's independence from law enforcement will be among its more difficult tasks. See Tillman, supra note 339. Yet, he is hopeful that its independence from both law enforcement and political pressure will allow DFS to focus more intently on grounding its results upon good science, highly trained (civilian) personnel, and continuing education for analysts. See id.; see also Tillman, supra note 336.
(343) See Pearson, supra note 337; Tillman, supra note 339.
(344) See U.S. Dep't of Defense, Dir. No. 5205.15E, DoD Forensic Enterprise [section] 1(a) (Apr. 26, 2011) [hereinafter 5205.15E].
(345) See id.
(346) See id. For instance, the act places certain forensic disciplines like DNA, trace, and latent prints in the hands of the Secretary of the Army, while other forensic disciplines-- image and video analysis, for example--are housed under the Secretary of the Air Force. See id. 5205.15E [section] 1(d)-(e).
(347) See id. 5205.15E, Enclosure 3, [section] 1.
(348) See id. 5205.15E, Enclosure 3.
(349) See Sci. & Tech. Comm., Forensic Sci. Serv., House of Commons, Seventh Report of Session 2010-12, at 9 (2011) [hereinafter Seventh Report], available at http://goo.gl/691YWU .
(350) See id.
(351) See id at 10.
(352) See id. at 3.
(353) See Parliamentary Office of Sci. & Tech., Postnote: The National DNA Database 1 (2006), available at http://goo.gl/Kxj3SE.
(354) See Seventh Report, supra note 349, at 9.
(355) See Kent Roach & Gary Trotter, Miscarriages of Justice in the War Against Terror, 109 Penn St. L. Rev. 967,975 (2005).
(356) See id.\ see also Gary Edmond, Whigs in Court: Historiographical Problems with Expert Evidence, 14 Yale J.L. & Human. 123,145 (2002).
(357) See Roach & Trotter, supra note 355, at 975-77.
(358) See id.
(359) See id. at 977.
(360) See id.
(361) See Clare Lissaman, Birmingham Six Release Remembered, BBC (Mar. 14, 2011, 12:06 AM), http://goo.gl/LZpOZt.
(362) See id.
(363) See Stewart Field & Philip A. Thomas, Justice and Efficiency? The Royal Commission on Criminal Justice, 21 J.L. & Soc'Y. 1,1, 5 (1994).
(364) See id. at 2-5.
(365) See Written Evidence Submitted by the Forensic Science Regulator, Forensic Sci. Serv. (2011), available at http://goo.gl/CAfxjB.
(366) See id.; see also Int'l Org. for Standardization, International Standard ISO/IEC 17025: General Requirements for the Competence of Testing and Calibration Laboratories (2005) [hereinafter ISO 17025], available at http://goo.gl/Oox8EW. ISO sets forth voluntary international standards, with its ISO 17025 creating requirements for competency in testing and calibration. Id. at 1.
(367) See Alan G. Rowley, United Nations Indus. Dev. Org., Complying with ISO 17025: A Practical Guidebook for Meeting the Requirements of Laboratory Accreditation Schemes Based on ISO 17025:2005 or Equivalent National Standards 1 (2009), available at http://goo.gl/tQBRzz.
(368) See ISO 17025, supra note 366, at vi.
(369) See id. at 2-3.
(370) See id. at 10-23.
(371) See Brian Rankin, Forensic Practice, in Crime Scene to Court: The Essentials of Forensic Science 1,18-19 (Peter White ed., 3d ed. 2010).
(372) See id.
(373) See Seventh Report, supra note 349, at Ev 75.
(374) See id.
(375) See id.
(376) See id. at 13.
(377) See id. at 5 (citation omitted).
(378) Id. at 5,9.
(379) See Seventh Report, supra note 349, at 23 (citation omitted).
(380) See Forensic Science Service to Be Wound Up, BBC (Dec. 14, 2010, 10:07 AM), http ://goo.gl/99St9M.
(381) See id.
(382) See Goulka et al., supra note 319, at 4--5; Forensic Science Regulator, GOV.UK, http://goo.gl/iqXdlT (last visited Apr. 14,2014).
(383) See Seventh Report, supra note 349, at 37 (citation omitted).
(384) See id. at 35 (citation omitted).
(385) See id. at 36-37 (citation omitted).
(386) Angus Crawford, Closure of Forensic Archive a 'Shambles', Experts Warn, BBC (July 18, 2012, 12:23 AM), http://goo.gl/Odpgw4.
(387) See Goulka et al., supra note 319, at 2 (noting that the United States could apply the English system to reduce cost and improve outcomes).
(388) See id. at 7.
(389) See id. at 5. Although I have deep reservations about such a rule, the U.S. Supreme Court recently determined that DNA can be taken from an individual upon arrest for a felony. See Maryland v. King, 133 S. Ct. 1958, 1980 (2013).
(390) As of 2012, the United Kingdom had forty-three police forces with 134,101 officers. See Police Officer Numbers at Nine-Year Low, BBC (July 26, 2012, 9:43 AM), http://goo.gl/jJYSOO. Additionally, in the twelve-month period ending March 31, 2011, there were only about four million arrests in the United Kingdom. See Home Office, Statistics: Police Powers and Procedures England And Wales 2010 to 2011: Second Edition (2012), available at http://goo.gl/p3eD3K .
(391) See Richard Pinchin, Eliminating DNA Backlog, Forensic Mag., Aug.-Sept. 2007, at 32, 33.
(392) See id. at 33-34.
(393) See Miranda Jolicoeur, Nat'l Inst, of Justice, U.S. Dep't of Justice, International Perspectives on Wrongful Convictions 20 (2010), available at http://goo.gl/d3IwA2.
(395) See Eur. Network of Forensic Sci. Insts., Annual Report 2011, at 3 (2011), available at http://goo.gl/9epLJk.
(396) See About ENFSI: Members, ENFSI, http://goo.gl/IyrNRJ (last visited Apr. 14, 2014).
(397) See generally Ekrem Malkoc & Wim Neuteboom, The Current Status of Forensic Science Laboratory Accreditation in Europe, 167 Forensic Sci. Int'l. 121, 124-25 (2007).
(398) See Standing Comm, for Quality & Competence, ENFSI, Policy on Standards for Accreditation 1 (2010).
(400) Press Release, European Comm'n, The Integration of the "Prum Treaty" into EU-Legislation (June 12, 2007), available at http://goo.gl/QUaf86.
(401) Rybicki, supra note 333, at 91, 99.
(402) See NAS Report, supra note 1, at 78.
(403) The proposed Forensic Science and Standards Act of 2013 provided for the creation of a forensic science advisory committee, and a similar committee would diminish any inefficiencies created by the inherent disconnect among the many research partnerships. See H.R. 3064, 113th Cong. [section] 8 (2013).
(404) Jane Campbell Moriarty, Will History Be Servitude?: The NAS Report on Forensic Science and the Role of the Judiciary, 2010 Utah L. Rev. 299, 310 (2010); see also People v. Eleby, 2012 WL 1548192 (Cal. Ct. App. May 3, 2012) (unpublished opinion) (finding that "some scholarly criticism" is not enough to warrant exclusion of the evidence); State v. McGuire, 16 A.3d 411, 436 (N.J. Super. Ct. App. Div. 2011) (finding that the purpose of the NAS Report is to highlight deficiencies in a forensic field and to propose improvements to existing protocols, not to recommend against admission of evidence).
(405) In re Trapp, 165 Wash. App. 1003 (Wash. Ct. App. 2011) (unpublished opinion).
(406) See Commonwealth v. Gambora, 933 N.E.2d 50, 60 (Mass. 2010) (noting that "the issues highlighted in the NAS Report are important and deserve consideration," but refusing to undertake such consideration in this case).
(407) See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993) ("[U]nder the [Federal Rules of Evidence] the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.").
(408) In Frye v. United States, 293 F. 1013 (D.C. 1923), the court set forth a standard for admitting expert testimony in which "the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Id. at 1014. Under Frye, admitting evidence requires generally accepting (1) the theory supporting the scientific conclusion, and (2) the techniques and experiments leading to the conclusion. See Alice B. Lustre, Annotation, 7'o.st-Daubert Standards for Admissibility of Scientific and Other Expert Evidence in State Courts, 90 A.L.R.5th 453 (2001). For states using Frye's general acceptance test, problems arise in determining what is generally accepted, defining the "scientific community" in question, and determining how much agreement is needed for "general acceptance." Thus, the uniform standards achieved by research partnerships will assist courts in applying the Frye standard to forensic evidence testimony by clarifying any ambiguities inherent in Frye's, admissibility requirements.
(409) See NAS Report, supra note 1, at 6.
(410) See id.
(411) See id.
(412) See id. at 13. The United States boasts a system of limited federal government. As stated in the Tenth Amendment, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const, amend. X. The Tenth Amendment is the primary vehicle for arguments that the federal government is overstepping its authority and encroaching on states' rights. See Charles Cooper, Reserved Powers of the States, in The Heritage Guide to the Constitution (Edwin Meese III et al. eds., 2005), available at http://goo.gl/yTN88m.
(413) See, e.g., Wrongly Convicted Man Now Free Thanks to DNA Evidence, WSB-TV Atlanta (Nov. 12, 2007, 5:30 PM), http://goo.gl/YG6KA9.
(414) See Science & Tech. Committee, Written Evidence Submitted by Dr. Fiona Perry, 2010-11, H.C., [paragraph] 1iv-vii (U.K.), available at http://goo.gl/XWvScj; see also Forensic Science Service to Be Wound Up, supra note 380.
(415) In the 1980s, the federal and state governments began contracting with private companies for incarceration services to reduce costs. See Nicole B. Casarez, Furthering the Accountability Principle in Privatized Federal Corrections: The Need for Access to Private Prison Records, 28 U. Mich. J.L. Reform 249, 255-57 (1995). Over the past three decades, the federal government expanded the privatization. By 2009, 15% of federal prisoners were incarcerated in privately operated correctional facilities. See David C. Fathi, The Challenge of Prison Oversight, 47 Am. Crim. L. Rev. 1453, 1461 (2010) (citation omitted).
(416) As one study demonstrated, California state-run prisons spend about $162 per inmate per day, compared with only $72 in privately run prisons. See Private Prisons Save Money, Report Says, Correctional News (July 28, 2011), http://goo.gl/2dNlGX. While the prison system has largely been criticized in the United States, the two situations are less analogous than it might readily appear. The issue with prison privatization is that to turn a profit, more prisoners are needed. See Private Prisons, Am. Civil Liberties Union, http://goo.gl/qyxGZi (last visited Apr. 14,2014).
(417) See Marie Cusick, Scandals Call into Question Crime Labs' Oversight, NPR (Nov. 20, 2012, 6:14 PM), http://goo.gl/gLXUE8.
(418) Michael Morton & Barry Scheck, Morton, Scheck: Changes Are Long Overdue for Texas' Clemency Process, Houston Chron. (Oct. 16, 2013, 7:26 PM), http://goo.gl/JUmnjW.
JESSICA D. GABEL, Associate Professor of Law, Georgia State University College of Law. I would like to thank my amazing research assistants Bryan Baird, Phillip Parham III, and Ashley Champion for their dedicated work on this Article, along with the fantastic editorial staff of the Journal of Criminal Law & Criminology.
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|Title Annotation:||III. To Big to Fail: Obstacles to Federal Forensic Oversight C. Tie Federal Funds to Adoption of Regulations through Conclusion, with footnotes, p. 318-352|
|Author:||Gabel, Jessica D.|
|Publication:||Journal of Criminal Law and Criminology|
|Date:||Mar 22, 2014|
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