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Little Progress in Congress on Push for Forensic Standards

Efforts to reform forensic science have struggled with the issue of how independent a new national agency would be.

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An autopsy suite. (PBS FRONTLINE)

Update (1/26): This post has been updated to reflect a comment from Rockefeller's office on the timeline for introducing legislation.

Three years ago, the influential National Academy of Sciences released a scathing report broadly condemning the work of criminal labs in the U.S. Too often, the report found, forensic labs do subpar work and rely on unproven techniques such as analyzing bite marks or examining the markings on a bullet. As the report noted, sloppy forensic work has played a part in many wrongful convictions. (We've detailed other forensic failures in our ongoing series on the country's death investigation systems.)

The report and experts say the shortcomings could be addressed in part by a national forensic science agency that could rigorously test forensic science techniques to see if they actually worked. Another key reform from the report, once again widely endorsed by experts, would establish enforceable standards and set up a mandatory certification and accreditation process for forensic science professionals and labs.

The report's conclusions, which one legislator called "damning" and "terrifying," prompted a series of Senate hearings to examine ways to strengthen the troubled forensic science system.

So, three years on, where do things stand in Congress? Not very far from where they started.

Early last year, Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., introduced a bill to implement many of the report's proposed reforms. The bill has moved little since then. When asked for comment, the senator's office said he is still discussing the bill with law enforcement but hopes the committee will consider it this year.

Experts say even if the bill passes in its current form, it would not implement a key recommendation. The bill proposes the creation of a national forensic science agency like the NAS report suggested but would put the new office within the Department of Justice. The report strongly advised that the new agency be completely independent from any existing department, especially the DOJ.

From the report:

[N]o existing or new division or unit within DOJ would be an appropriate location for a new entity governing the forensic science community... The entity that is established to govern the forensic science community cannot be principally beholden to law enforcement. The potential for conflicts of interest between the needs of law enforcement and the broader needs of forensic science are too great.

"[The DOJ] is the last place the NAS report wanted the agency, for the most obvious of reasons," said Marvin Schechter, a criminal defense attorney in New York City and former member of the committee that wrote the NAS report. "For over 100 years, forensic science in this country has been under prosecutorial law enforcement control, and it's been a disaster."

Harry Edwards, a law professor at NYU and co-chair of the committee that wrote the NAS report, said forensic scientists shouldn't work within law enforcement, "not because we do not trust law enforcement officials but because they serve different roles than scientists who are charged with assessing forensic evidence."

The establishment of a new forensic science agency in the Department of Justice would raise important questions about who would report to whom, who would pick the oversight committees and who would have the authority to approve or veto judgments by each group, Edwards said.

In a statement on Jan. 25, 2011, Leahy said there was simply not enough support for a wholly independent agency, which would impose too high a cost on taxpayers. The proposed forensic science office "capitalizes on existing expertise and structures, rather than calling for the creation of a costly new agency," Leahy said.

Leahy acknowledged the argument for independence, and as a result, his bill has a "hybrid structure." A Forensic Science Board of forensic and academic scientists, prosecutors and defense attorneys would make recommendations to the director of the forensic science office. Additionally, committees of scientists would look at each forensic science discipline -- from bite marks to blood spatters -- to figure out research needs and standards.

But Schechter said this layered system would only introduce more problems. "Because Leahy took [the national agency] out of an independent entity," he said, "he had to fit it into the DOJ like a square peg in a round [hole]. The result has been a chaotic if not twisted bill."

DOJ involvement doesn't have to be an either-or decision, said Peter Neufeld, a founder and director of the Innocence Project, a national organization that works to exonerate innocent prisoners and reform the criminal justice system. Neufeld said a national agency of forensic science should be a collective undertaking. A scientific agency with research experience, such as the National Science Foundation, could be in charge of setting forensic standards, and the DOJ could be in charge of accreditation, certification and implementation, he said.

While the Leahy bill has languished, Sen. John Rockefeller, D-W.V., is also considering legislation to mandate improvements to forensic science. In December, he held a hearing on the subject. (Here's the full video of the hearing and testimonies.) In a recent letter, the president of the American Statistical Association urged Rockefeller not to follow Leahy's approach and to instead create an independent agency.

Rockefeller has yet to propose a bill, but, according to a committee aide, he is hoping to introduce one this year.

There is obviously a big problem in that (maybe by necessity) forensic science is about finding evidence for a conviction.  I mean, innocent until proven guilty is the approach of the courts, but for the police to assume innocence suggests they shouldn’t be involved at all.  In essence, they can’t afford to be “scientists” any more than the guys who write the journal articles about how junk food is good for you.

I don’t mean to denigrate the folks at the crime labs in saying this.  I mean that they need to assume guilt to make headway.  But that same need undercuts the ideal of impartiality.

An obvious approach to restore the impartial scientific nature would be to (like in “real science,” for lack of a better word) make sure every analysis can be replicated by independent parties and allow the defense to hire outside their own forensic investigators to try to refute or back particular findings.

The expert witness (for the defense) provides an obvious model, but what’s needed is a full report by the lab detailing its approach and providing samples for comparison.

And yes, I know that samples are oftten insufficient for multiple runs.  And I know that a private forensic investigation firm could be costly.  But an approach like this seems more effective than Leahy’s bill, which (if I understand it correctly on a quick skim-through) would simply serve to call the authority of local governments into question and slow investigations down while labs are reexamined.

I would also worry that any centralized approach essentially demands an eventual national bias in scientific method.  Can we trust that such an organization would never be headed by someone who agrees with the Bush administration on “enhanced interrogation”?  I doubt it.

Good grief. How much do you idiots want to pay the government to do this too. Soon you’ll be paying them to wipe your butt the government approved way. There are already accepted forensic standards. If the people you’re paying to follow them aren’t, get new people. Thanks to you, there are plenty of people out of work.

So what else is new?  It’s about the money, as is everything else in this country.  What poor, minority, or even middle-class defendant has the means to hire a topnotch, qualified lab to run the forensic tests that would prove his/her innocence.

The number of falsely imprisoned in this country runs to the hundreds of thousands.  But the number finally released after spending much of their lives in prison (sometimes on DeathRow)—thanks to the dedicated work of such as the Innocence Project and others
like it—is miniscule.

If there is a Supreme Being, he, she or it must be having a good laugh Up There (or Down There?) at what we do to ourselves by the choice of where we spend our money.

Emmett Smith, you might be singing a different tune if YOU were falsely imprisoned for much of your life due to sloppy forensic work pushed along by ambitious prosecutors.

“For over 100 years, forensic science in this country has been under prosecutorial law enforcement control, and it’s been a disaster.” 

So much of the public is selfish, cruel, hypocritical.  They go to chuch and bleat about how wonderful they are.  But don’t ask them to honor “I am my brother’s keeper” (and I’m not even religious).  Cultural anthropologists have long identified that a society which cares for its weakest and most vulnerable (pets, children, old and infirm—and falsely accused) is a healthy society.

Sgt. Barefoot

Jan. 23, 2012, 2:51 p.m.

More than enough uncertainty to support “abolishment of the death penalty”.
  If we as a society are to be ruled by law, that would be something Law makers could legislate.
  If the courts were to entertain all avenues of “amicus curie”  the independent ” truth”, becomes viable!

If juries were composed of experienced, knowledgable, professionals who could challenge the evidence and refuse to convict without solid evidence, then perhaps the bar would be raised and justice more often served.  The point of a trial should be to establish the truth of the matter and not a theatrical performance bent on manipulating impressionable jury members who are incapable of analyzing the validity of evidence and who often make a decision under duress so they can go on with their lives.

I believe that forensic sciences, which collect and assemble evidence related to indentity, criminal activity, death, and disease, all of which can be looked at as elements of surveillance, should be in the Department of Homeland Security or Center for Disease/Injury Control.

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