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Strengthening Forensic Science in the United States: A Path Forward 1 Introduction The world of crime is a complex place. Crime takes place in the workplace, schools, homes, places of business, motor vehicles, on the streets, and, increasingly, on the Internet. Crimes are committed at all hours of the day and night and in all regions of the country, in rural, suburban, and urban environments. In many cases, a weapon is used, such as a handgun, knife, or blunt object. Sometimes the perpetrator is under the influence of alcohol or illicit drugs. In other cases, no one is physically hurt, but property is damaged or stolen—for example, when burglary, theft, and motor vehicle theft occur. In recent years, information technology has provided the opportunity for identity theft and other types of cybercrime. A crime scene often is rich in information that reveals the nature of the criminal activity and the identities of those persons involved. Perpetrators and victims may leave behind blood, saliva, skin cells, hair, fingerprints, footprints, tire prints, clothing fibers, digital and photographic images, audio data, handwriting, and the residual effects and debris of arson, gunshots, and unlawful entry. Some crimes transcend borders, such as those involving homeland security, for which forensic evidence can be gathered. Crime scene investigators, with varying levels of training and experience, search for and collect evidence at the scene, preserve and secure it in tamper-evident packaging, label it, and send it to an appropriate agency—normally a crime laboratory, where it may be analyzed by forensic examiners. If a death was sudden, unexpected, or resulted from violence, a medicolegal investigator (e.g., coroner, medical examiner, forensic pathologist, physician’s assistant) will be responsible for determining whether a
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Strengthening Forensic Science in the United States: A Path Forward homicide, suicide, or accident occurred and will certify the cause and manner of death. Crime scene evidence moves through a chain of custody in which, depending on their physical characteristics (e.g., blood, fiber, handwriting), samples are analyzed according to any of a number of analytical protocols, and results are reported to law enforcement and court officials. When evidence is analyzed, typically forensic science “attempts to uncover the actions or happenings of an event … by way of (1) identification (categorization), (2) individualization, (3) association, and (4) reconstruction.”1 Evidence also is analyzed for the purpose of excluding individuals or sources. Not all forensic services are performed in traditional crime laboratories by trained forensic scientists. Some forensic tests might be conducted by a sworn law enforcement officer with no scientific training or credentials, other than experience. In smaller jurisdictions, members of the local police or sheriff’s department might conduct the analyses of evidence, such as latent print examinations and footwear comparisons. In the United States, if evidence is sent to a crime laboratory, that facility might be publicly or privately operated, although private laboratories typically do not visit crime scenes to collect evidence or serve as the first recipient of physical evidence. Public crime laboratories are organized at the city, county, state, or federal level. A law enforcement agency that does not operate its own crime laboratory typically has access to a higher-level laboratory (e.g., at the state or county level) or a private laboratory for analysis of evidence. According to a 2005 census by the Bureau of Justice Statistics (BJS),2 389 publicly funded forensic crime laboratories were operating in the United States in 2005: These included 210 state or regional laboratories, 84 county laboratories, 62 municipal laboratories, and 33 federal laboratories, and they received evidence from nearly 2.7 million criminal cases3 in 2005. These laboratories are staffed by individuals with a wide range of training and expertise, from scientists with Ph.D.s to technicians who have been trained largely on the job. No data are available on the size and depth of the private forensic laboratories, except for private DNA laboratories. In general, a traditional crime laboratory has been defined as constituting “a single laboratory or system comprised of scientists analyzing evidence 1 K. Inman and N. Rudin. 2002. The origin of evidence. Forensic Science International 126:11-16. 2 M.R. Durose. 2008. Census of Publicly Funded Forensic Crime Laboratories, 2005. U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. Available at www.ojp.usdoj.gov/bjs/pub/pdf/cpffcl05.pdf. 3 Ibid., p. 9. “A ‘case’ is defined as evidence submitted from a single criminal investigation. A case may include multiple ‘requests’ for forensic services. For example, one case may include a request for biology screening and a request for latent prints.”
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Strengthening Forensic Science in the United States: A Path Forward in one or more of the following disciplines: controlled substances, trace, biology (including DNA), toxicology, latent prints, questioned documents, firearms/toolmarks, or crime scene.”4 More recently, increasing numbers of laboratories specialize in the analysis of evidence in one area, for example, DNA or digital evidence. (See Chapter 5 for a more complete description and discussion of the forensic science disciplines.) The capacity and quality of the current forensic science system have been the focus of increasing attention by Congress, the courts, and the media. New doubts about the accuracy of some forensic science practices have intensified with the growing number of exonerations resulting from DNA analysis (and the concomitant realization that guilty parties sometimes walk free). Greater expectations for precise forensic science evidence raised by DNA testing have forced new scrutiny on other forensic techniques. Emerging scientific advances that could benefit forensic investigation elicit concerns about resources, training, and capacity for implementing new techniques. A crisis in backlogged cases, caused by crime laboratories lacking sufficient resources and qualified personnel, raises concerns about the effectiveness and efficiency of the criminal justice system. When backlogs prolong testing time, issues involving speedy trials may arise. In addition, backlogs discourage law enforcement personnel and organizations from submitting evidence. Laboratories also may restrict submissions of evidence to reduce backlogs. All of these concerns, and more, provide the background against which this report is set. Finally, if evidence and laboratory tests are mishandled or improperly analyzed; if the scientific evidence carries a false sense of significance; or if there is bias, incompetence, or a lack of adequate internal controls for the evidence introduced by the forensic scientists and their laboratories, the jury or court can be misled, and this could lead to wrongful conviction or exoneration. If juries lose confidence in the reliability of forensic testimony, valid evidence might be discounted, and some innocent persons might be convicted or guilty individuals acquitted. Recent years have seen a number of concerted efforts by forensic science organizations to strengthen the foundations of many areas of testimony. However, substantial improvement is necessary in the forensic science disciplines to enhance law enforcement’s ability to identify those who have or have not committed a crime and to prevent the criminal justice system from erroneously convicting or exonerating the persons who come before it. 4 Ibid., p. 24.
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Strengthening Forensic Science in the United States: A Path Forward WHAT IS FORENSIC SCIENCE? Although there are numerous ways by which to categorize the forensic science disciplines, the committee found the categorization used by the National Institute of Justice to be useful: general toxicology; firearms/toolmarks; questioned documents; trace evidence; controlled substances; biological/serology screening (including DNA analysis); fire debris/arson analysis; impression evidence; blood pattern analysis; crime scene investigation; medicolegal death investigation; and digital evidence.5 Some of these disciplines are discussed in Chapter 5. Forensic pathology is considered a subspecialty of medicine and is considered separately in Chapter 9. The term “forensic science” encompasses a broad range of disciplines, each with its own distinct practices. The forensic science disciplines exhibit wide variability with regard to techniques, methodologies, reliability, level of error, research, general acceptability, and published material (see Chapters 4 through 6). Some of the disciplines are laboratory based (e.g., nuclear and mitochondrial DNA analysis, toxicology, and drug analysis); others are based on expert interpretation of observed patterns (e.g., fingerprints, writing samples, toolmarks, bite marks). Some activities require the skills and analytical expertise of individuals trained as scientists (e.g., chemists or biologists); other activities are conducted by scientists as well as by individuals trained in law enforcement (e.g., crime scene investigators, blood spatter analysts, crime reconstruction specialists), medicine (e.g., forensic pathologists), or laboratory methods (e.g., technologists). Many of the processes used in the forensic science disciplines are largely empirical applications of science—that is, they are not based on a body of knowledge that recognizes the underlying limitations of the scientific principles and methodologies used for problem solving and discovery. It is therefore important to focus on ways to improve, systematize, and monitor the activities and practices 5 National Institute of Justice. 2006. Status and Needs of Forensic Science Service Providers: A Report to Congress. Available at www.ojp.usdoj.gov/nij/pubs-sum/213420.htm.
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Strengthening Forensic Science in the United States: A Path Forward in the forensic science disciplines and related areas of inquiry. Thus, in this report, the term “forensic science” is used with regard to a broad array of activities, with the recognition that some of these activities might not have a well-developed research base, are not informed by scientific knowledge, or are not developed within the culture of science. PRESSURES ON THE FORENSIC SCIENCE SYSTEM As mentioned above, a number of factors have combined in the past few decades to place increasing demands on an already overtaxed, inconsistent, and underresourced forensic science infrastructure. These factors have not only stressed the system’s capacity, but also have raised serious questions and concerns about the validity and reliability of some forensic methods and techniques and how forensic evidence is reported to juries and courts. The Case Backlog—Insufficient Resources According to the 2005 BJS census report, a typical publicly funded crime laboratory ended the year with a backlog of about 401 requests for services, received another 4,328 such requests, and completed 3,980 of them. Roughly half of all requests were in the area of controlled substances. The average backlog has risen since the 2002 census,6 with nearly 20 percent of all requests backlogged by year end. The Department of Justice (DOJ) defines a case as backlogged if it remains in the laboratory 30 days or more without the development of a report or analysis. Federal, state, and local laboratories reported a combined backlog of 435,879 requests for forensic analysis.7 According to the census, a typical laboratory performing DNA testing in 2005 started the year with a backlog of 86 requests, received 337 new requests, completed 265 requests, and finished the year with 152 backlogged requests. The backlog is exacerbated further by increased requests for quick laboratory results by law enforcement and prosecutors. Witnesses before the committee testified that prosecutors increasingly rely on laboratories to provide results prior to approving charges and have increased requests for additional work on the back end of a case, just before trial.8 Backlogs are compounded by rising police agency requests for testing (e.g., for DNA evidence found on guns and from nonviolent crime scenes). Laboratories 6 J.L. Peterson and M.J. Hickman. 2005. Census of Publicly Funded Forensic Crime Laboratories, 2002. U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. Available at www.ojp.usdoj.gov/bjs/pub/pdf/cpffcl02.pdf. 7 Durose, op. cit. 8 J.L. Johnson, Laboratory Director, Illinois State Police, Forensic Science Center at Chicago. Presentation to the committee. January 25, 2007.
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Strengthening Forensic Science in the United States: A Path Forward are thus challenged to balance requests for analyses of “older” and “cold” cases with new cases and must make choices to allocate resources by prioritizing the evidence to be analyzed. In California, voters passed Proposition 69, requiring that a DNA sample be obtained from all convicted felons. This increased the workload and resulted in 235,000 backlogged cases by the end of 2005.9 These backlogs can result in prolonged incarceration for innocent persons wrongly charged and awaiting trial and delayed investigation of those who are not yet charged, and they can contribute to the release of guilty suspects who go on to commit further crimes. The Ascendancy of DNA Analysis and a New Standard In the 1980s, the opportunity to use the techniques of DNA technologies to identify individuals for forensic and other purposes became apparent. Early concerns about the use of DNA for forensic casework included the following: (1) whether the detection methods were scientifically valid—that is, whether they correctly identified true matches and true nonmatches and (2) whether DNA analysis of forensic samples is reliable—that is, whether it yields reproducible results under defined conditions of use. A 1990 report by the congressional Office of Technology Assessment concluded that DNA tests were both reliable and valid in the forensic context but required a strict set of standards and quality control measures before they could be widely adopted.10 In 1990, the Federal Bureau of Investigation (FBI) established guidelines for DNA analysis and proficiency testing and four years later created the Combined DNA Index System (CODIS), which allows federal, state, and local crime laboratories to exchange and compare DNA profiles electronically, thereby linking crimes to each other and to convicted offenders. In 1992, the National Research Council (NRC) issued DNA Technology in Forensic Science, which concluded that, “No laboratory should let its results with a new DNA typing method be used in court, unless it has undergone … proficiency testing via blind trials.”11 In addition, the report cautioned that numerous questions must be answered about using DNA evidence in a forensic context that rarely had to be considered by scientists engaged in DNA research—for example, questions involving contamination, degradation, and a number of statistical issues. While confirming that 9 Durose, op. cit. 10 U.S. Congress, Office of Technology Assessment. 1990. Genetic Witness: Forensic Uses of DNA Tests. OTA-BA-438. Washington, DC: U.S. Government Printing Office, NTIS order #PB90-259110. 11 National Research Council. 1992. DNA Technology in Forensic Science. Washington, DC: National Academy Press, p. 55.
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Strengthening Forensic Science in the United States: A Path Forward the science behind DNA analysis is valid, a subsequent NRC report in 1996 recommended new ways of interpreting DNA evidence to help answer a key question for jurors—the likelihood that two matching samples can come from different people.12 This 1996 report recommended a set of statistical calculations that takes population structure into account, which enhanced the validity of the test. The report also called for independent retesting and made recommendations to improve laboratory performance and accountability through, for example, adherence to high-quality standards, accreditation, and proficiency testing. Since then, the past two decades have seen tremendous growth in the use of DNA evidence in crime scene investigations. Currently more than 175 publicly funded forensic laboratories and approximately 30 private laboratories conduct hundreds of thousands of DNA analyses annually in the United States. In addition, most countries in Europe and Asia have forensic DNA programs. In 2003, President George W. Bush announced a 5-year, $1 billion initiative to improve the use of DNA in the criminal justice system. Called the President’s DNA Initiative, the program pushed for increased funding, training, and assistance to ensure that DNA technology “reaches its full potential to solve crimes, protect the innocent, and identify missing persons.”13 Thus, DNA analysis—originally developed in research laboratories in the context of life sciences research—has received heightened scrutiny and funding support. That, combined with its well-defined precision and accuracy, has set the bar higher for other forensic science methodologies, because it has provided a tool with a higher degree of reliability and relevance than any other forensic technique. However, DNA evidence comprises only about 10 percent of case work and is not always relevant to a particular case.14 Even if DNA evidence is available, it will assist in solving a crime only if it supports an evidential hypothesis that makes guilt or innocence more likely. For example, the fact that DNA evidence of a victim’s husband is found in the house in which the couple lived and where the murder took place proves nothing. The fact that the husband’s DNA is found under the fingernails of the victim who put up a struggle may have a very different significance. Thus, it is essential to articulate the reasoning process and the context associated with the evidence that is being evaluated. 12 National Research Council. 1996. The Evaluation of Forensic DNA Evidence: An Update. Washington, DC: National Academy Press. 13 See www.dna.gov/info/e_summary. 14 The American Society of Crime Laboratory Directors. 2004. 180 Day Study: Status and Needs of U.S. Crime Labs. p. 7, table 2.
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Strengthening Forensic Science in the United States: A Path Forward Questionable or Questioned Science The increased use of DNA analysis as a more reliable approach to matching crime scene evidence with suspects and victims has resulted in the reevaluation of older cases that retained biological evidence that could be analyzed by DNA. The number of exonerations resulting from the analysis of DNA has grown across the country in recent years, uncovering a disturbing number of wrongful convictions—some for capital crimes—and exposing serious limitations in some of the forensic science approaches commonly used in the United States. According to The Innocence Project, there have been 223 postconviction DNA exonerations in the United States since 1989 (as of November 2008).15 Some have contested the percentage of exonerated defendants whose convictions allegedly were based on faulty science. Although the Innocence Project figures are disputed by forensic scientists who have reexamined the data, even those who are critical of the conclusions of The Innocence Project acknowledge that faulty forensic science has, on occasion, contributed to the wrongful conviction of innocent persons.16 The fact is that many forensic tests—such as those used to infer the source of toolmarks or bite marks—have never been exposed to stringent scientific scrutiny. Most of these techniques were developed in crime laboratories to aid in the investigation of evidence from a particular crime scene, and researching their limitations and foundations was never a top priority. There is some logic behind the application of these techniques; practitioners worked hard to improve their methods, and results from other evidence have combined with these tests to give forensic scientists a degree of confidence in their probative value. Before the first offering of the use of DNA in forensic science in 1986, no concerted effort had been made to determine the reliability of these tests, and some in the forensic science and law enforcement communities believed that scientists’ ability to withstand cross-examination in court when giving testimony related to these tests was sufficient to demonstrate the tests’ reliability. However, although the precise error rates of these forensic tests are still unknown, comparison of their results with DNA testing in the same cases has revealed that some of these analyses, as currently performed, produce erroneous results. The 15 The Innocence Project. Fact Sheet: Facts on Post-Conviction DNA Exonerations. Available at www.innocenceproject.org/Content/351.php. See also B.L. Garrett. Judging innocence. 108 COLUM. L. REV. 55 (2008) (discussing the results of an empirical study of the types of faulty evidence that was admitted in more than 200 cases for which DNA testing subsequently enabled postconviction exonerations). 16 See J. Collins and J. Jarvis. 2008. The wrongful conviction of forensic science. Crime Lab Report. July 16. Available at www.crimelabreport.com/library/pdf/wrongful_conviction.pdf. See also N. Rudin and K. Inman. 2008. Who speaks for forensic science? News of the California Association of Criminalists. Available at www.cacnews.org/news/4thq08.pdf, p. 10.
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Strengthening Forensic Science in the United States: A Path Forward conclusions of forensic examiners may or may not be right—depending on the case—but each wrongful conviction based on improperly interpreted evidence is serious, both for the innocent person and also for society, because of the threat that may be posed by a guilty person going free. Some non-DNA forensic tests do not meet the fundamental requirements of science, in terms of reproducibility, validity, and falsifiability (see Chapters 4 through 6). Even fingerprint analysis has been called into question. For nearly a century, fingerprint examiners have been comparing partial latent fingerprints found at crime scenes to inked fingerprints taken directly from suspects. Fingerprint identifications have been viewed as exact means of associating a suspect with a crime scene print and rarely were questioned.17 Recently, however, the scientific foundation of the fingerprint field has been questioned, and the suggestion has been made that latent fingerprint identifications may not be as reliable as previously assumed.18 The question is less a matter of whether each person’s fingerprints are permanent and unique—uniqueness is commonly assumed—and more a matter of whether one can determine with adequate reliability that the finger that left an imperfect impression at a crime scene is the same finger that left an impression (with different imperfections) in a file of fingerprints. In October 2007, Baltimore County Circuit Judge Susan M. Souder refused to allow a fingerprint analyst to testify that a latent print was made by the defendant in a death penalty trial. In her ruling, Judge Souder found the traditional method of fingerprint analysis to be “a subjective, untested, unverifiable identification procedure that purports to be infallible.”19 Some forensic science methods have as their goal the “individualization” of specific types of evidence (typically shoe and tire impressions, dermal ridge prints, toolmarks and firearms, and handwriting). Analysts using such methods believe that unique markings are acquired by a source item in random fashion and that such uniqueness is faithfully transmitted from the source item to the evidence item being examined (or in the case of handwriting, that individuals acquire habits that result in unique handwriting). When the evidence and putative source items are compared, a conclusion of individualization implies that the evidence originated from that source, 17 R. Epstein. Fingerprints meet Daubert: The myth of fingerprint “science” is revealed. 75 Southern California Law Review 605 (2002). 18 S.A. Cole. 2002. Suspect Identities: A History of Fingerprinting and Criminal Identification. Boston: Harvard University Press; Epstein, op. cit. 19 State of Maryland v. Bryan Rose. In the Circuit Court for Baltimore County. Case No. K06-545.
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Strengthening Forensic Science in the United States: A Path Forward to the exclusion of all other possible sources.20,21 The determination of uniqueness requires measurements of object attributes, data collected on the population frequency of variation in these attributes, testing of attribute independence, and calculations of the probability that different objects share a common set of observable attributes.22 Importantly, the results of research must be made public so that they can be reviewed, checked by others, criticized, and then revised, and this has not been done for some of the forensic science disciplines.23 As recently as September 2008, the Detroit Police crime laboratory was shut down following a Michigan State Police audit that found a 10 percent error rate in ballistic evidence.24 The forensic science community has had little opportunity to pursue or become proficient in the research that is needed to support what it does. Few sources of funding exist for independent forensic research (see Chapter 2). Most of the studies are commissioned by DOJ and conducted by crime laboratories with little or no participation by the traditional scientific community. In addition, most disciplines in the profession are hindered by a lack of enforceable standards for interpretation of data (see Chapter 7). Errors and Fraud In recent years, the integrity of crime laboratories increasingly has been called into question, with some highly publicized cases highlighting the sometimes lax standards of laboratories that have generated questionable or fraudulent evidence and that have lacked quality control measures that would have detected the questionable evidence. In one notorious case, a state-mandated review of analyses conducted by West Virginia State Police laboratory employee Fred Zain revealed that the convictions of more than 100 people were in doubt because Zain had repeatedly falsified evidence in criminal prosecutions. At least 10 men had their convictions overturned as a result.25 Subsequent reviews questioned whether Zain was ever qualified to perform scientific examinations.26 Other scandals, such as one involving the Houston Crime Laboratory 20 M.J. Saks and J.J. Koehler. 2005. The coming paradigm shift in forensic identification science. Science 309:892-895. 21 W.J. Bodziak. 1999. Footwear Impression Evidence–Detection, Recovery, and Examination. 2nd ed. Boca Raton, FL: CRC Press. 22 Ibid. See also NRC, 1996, op. cit. 23 P.C. Giannelli. Wrongful convictions and forensic science: The need to regulate crime labs. 86 N.C. L. REV. 163 (2007). 24 B. Schmitt and J. Swickard. 2008. Detroit Police lab shut down after probe finds errors. Detroit Free Press on-line. September 25. 25 In the Matter of an Investigation of the West Virginia State Police Crime Laboratory, Serology Division (WVa 1993) 438 S.E.2d 501(Zaine I); and 445 S.E.2d 165 (Zain II). 26 Ibid.
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Strengthening Forensic Science in the United States: A Path Forward in 2003, highlight the sometimes blatant lack of proper education and training of forensic examiners. In the Houston case, several DNA experts went public with accusations that the DNA/Serology Unit of the Houston Police Department Crime Laboratory was performing grossly incompetent work and was presenting findings in a misleading manner designed to unfairly help prosecutors obtain convictions. An audit by the Texas Department of Public Safety confirmed serious inadequacies in the laboratory’s procedures, including “routine failure to run essential scientific controls, failure to take adequate measures to prevent contamination of samples, failure to adequately document work performed and results obtained, and routine failure to follow correct procedures for computing statistical frequencies.”27,28 The Innocence Project has documented instances of both intentional and unintentional laboratory errors that have lead to wrongful convictions, including: In the laboratory—contamination and mislabeling of evidence. In information provided in forensics reports—falsified results (including “drylabbing,” i.e., providing conclusions from tests that were never conducted), and misinterpretation of evidence. In the courtroom—suppression of exculpatory evidence; providing a statistical exaggeration of the results of a test conducted on evidence; and providing false testimony about test results.29 Saks and Koehler have written that the testimony of forensic scientists is one of many problems in criminal cases today.30 They cite the norms of science, which emphasize “methodological rigor, openness, and cautious interpretation of data,” as norms that often are absent from the forensic science disciplines. Although cases of fraud appear to be rare, perhaps of more concern is the lack of good data on the accuracy of the analyses conducted in forensic science disciplines and the significant potential for bias that is present in some cases. For example, the FBI was accused of bias in the case of the Madrid bombing suspect Brandon Mayfield (see Box 1-1). In that case, the Inspector General of DOJ launched an investigation. The FBI conducted its 27 Quality Assurance Audit for Forensic DNA and Convicted Offender DNA Databasing Laboratories. An Audit of the Houston Police Department Crime Laboratory-DNA/Serology Section, December 12-13, 2002. Available at www.scientific.org/archive/Audit%20Document--Houston.pdf. 28 See also M.R. Bromwich. 2007. Final Report of the Independent Investigator for the Houston Police Department Crime Laboratory and Property Room. Available at www.hpdlabinvestigation.org. 29 The Innocence Project. Available at www.innocenceproject.org/Content/312.php. 30 Saks and Koehler, op. cit.
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Strengthening Forensic Science in the United States: A Path Forward Box 1-1 FBI Statement on Brandon Mayfield Case “After the March terrorist attacks on commuter trains in Madrid, digital images of partial latent finger prints obtained from plastic bags that contained detonator caps were submitted by Spanish authorities to the FBI for analysis. The submitted images were searched through the Integrated Automated Finger print Identification System (IAFIS). An IAFIS search compares an unknown print to a database of millions of known prints. The result of an IAFIS search produces a short list of potential matches. A trained finger print examiner then takes the short list of possible matches and performs an examination to determine whether the unknown print matches a known print in the database. Using standard protocols and methodologies, FBI finger print examiners determined that the latent finger print was of value for identification purposes. This print was subsequently linked to Brandon Mayfield. That association was independently analyzed and the results were confirmed by an outside experienced finger print expert. Soon after the submitted finger print was associated with Mr. Mayfield, Spanish authorities alerted the FBI to additional information that cast doubt on the findings. As a result, the FBI sent two finger print examiners to Madrid, who compared the image the FBI had been provided to the image the Spanish authorities had. Upon review it was determined that the FBI identification was based on an image of substandard quality, which was particularly problematic because of the remarkable number of points of similarity between Mr. Mayfield’s prints and the print details in the images submitted to the FBI.” The FBI’s Latent Finger print Unit has reviewed its practices and adopted new guidelines for all examiners receiving latent print images when the original evidence is not included. SOURCE: FBI. May 24, 2004, Press Release. Available at www.fbi.gov/pressrel/pressrel04/mayfield052404.htm. own review by a panel of independent experts. The reviews concluded that the problem was not the quality of the digital images reviewed, but rather the bias and “circular reasoning” of the FBI examiners.31 Parts of the forensic science community have resisted the implications of the mounting criticism of the reliability of forensic analyses by investigative units such as Inspector General reports, The Innocence Project, 31 U.S. Department of Justice, Office of the Inspector General. 2006. A Review of the FBI’s Handling of the Brandon Mayfield Case. Also see R.B. Stacey. 2005. Report on the Erroneous Fingerprint Individualization in the Madrid Train Bombing Case. Available at www.fbi.gov/hq/lab/fsc/current/special_report/2005_special_report.htm.
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Strengthening Forensic Science in the United States: A Path Forward and studies in the published literature. In testimony before the committee, it was clear that some members of the forensic science community will not concede that there could be less than perfect accuracy either in given laboratories or in specific disciplines, and experts testified to the committee that disagreement remains regarding even what constitutes an error. For example, if the limitations of a given technology lead to an examiner declaring a “match” that is found by subsequent technology (e.g., DNA analysis) to be a “mismatch,” there is disagreement within the forensic science community about whether the original determination constitutes an error.32 Failure to acknowledge uncertainty in findings is common: Many examiners claim in testimony that others in their field would come to the exact same conclusions about the evidence they have analyzed. Assertions of a “100 percent match” contradict the findings of proficiency tests that find substantial rates of erroneous results in some disciplines (i.e., voice identification, bite mark analysis).33,34 As an example, in a FBI publication on the correlation of microscopic and mitochondrial DNA hair comparisons, the authors found that even competent hair examiners can make significant errors.35 In this study, the authors found that in 11 percent of the cases in which the hair examiners declared two hairs to be “similar,” subsequent DNA testing revealed that the hairs did not match, which refers either to the competency or the relative ability of the two divergent techniques to identify differences in hair samples, as well as to the probative value of each test. The insistence by some forensic practitioners that their disciplines employ methodologies that have perfect accuracy and produce no errors has hampered efforts to evaluate the usefulness of the forensic science disciplines. And, although DNA analysis is considered the most reliable forensic tool available today, laboratories nonetheless can make errors working with either nuclear DNA or mtDNA—errors such as mislabeling samples, losing samples, or misinterpreting the data. Standard setting, accreditation of laboratories, and certification of individuals aim to address many of these problems, and although many laboratories have excellent training and quality control programs, even 32 N. Benedict. 2004. Fingerprints and the Daubert standard for admission of scientific evidence: Why fingerprints fail and a proposed remedy. Arizona Law Review 46:519; M. Houck, Director of Forensic Science Initiative, West Virginia University. Presentation to the committee. January 25, 2007. 33 D.L. Faigman, D. Kaye, M.J. Saks, and J. Sanders. 2002. Modern Scientific Evidence: The Law and Science of Expert Testimony. St. Paul, MN: Thompson/West. 34 C.M. Bowers. 2002. The scientific status of bitemark comparisons. In: D.L. Faigman (ed.). Science in the Law: Forensic Science Issues. St. Paul, MN: West Publishing. 35 M. Houck and B. Budowle. 2002. Correlation of microscopic and mitochondrial DNA hair comparisons. Journal of Forensic Sciences 47(5):964-967; see also Bromwich, op. cit.
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Strengthening Forensic Science in the United States: A Path Forward accredited laboratories make mistakes. Furthermore, accreditation is a voluntary program, except in a few jurisdictions in which it is required (New York, Oklahoma, and Texas)36 (see Chapter 7). The “CSI Effect” Media attention has focused recently on what is being called the “CSI Effect,” named for popular television shows (such as Crime Scene Investigation) that are focused on police forensic evidence investigation.37 The fictional characters in these dramas often present an unrealistic portrayal of the daily operations of crime scene investigators and crime laboratories (including their instrumentation, analytical technologies, and capabilities). Cases are solved in an hour, highly technical analyses are accomplished in minutes, and laboratory and instrumental capabilities are often exaggerated, misrepresented, or entirely fabricated. In courtroom scenes, forensic examiners state their findings or a match (between evidence and suspect) with unfailing certainty, often demonstrating the technique used to make the determination. The dramas suggest that convictions are quick and no mistakes are made. The CSI Effect specifically refers to the real-life consequences of exposure to Hollywood’s version of law and order. Jurists and crime laboratory directors anecdotally report that jurors have come to expect the presentation of forensic evidence in every case, and they expect it to be conclusive. A recent study by Schweitzer and Saks found that compared to those who do not watch CSI, CSI viewers were “more critical of the forensic evidence presented at the trial, finding it less believable. Forensic science viewers expressed more confidence in their verdicts than did nonviewers.”38 Prosecutors and defense attorneys have reported jurors second guessing them in the courtroom, citing “reasonable doubt” and refusing to convict because they believed that other evidence was available and not adequately examined.39 Schweitzer and Saks found that the CSI Effect is changing the manner in which forensic evidence is presented in court, with some prosecutors believing they must make their presentation as visually interesting and appealing as such presentations appear to be on television. Some are concerned that the conclusiveness and finality of the manner in which forensic evidence is 36 National Institute of Justice. 2006. Status and Needs of Forensic Science Service Providers: A Report to Congress. Available at www.ojp.usdoj.gov/nij/pubs-sum/213420.htm. 37 See U.S. News & World Report. 2005. The CSI effect: How TV is driving jury verdicts all across America. April 25. 38 N.J. Schweitzer and M.J. Saks. 2007. The CSI Effect: Popular fiction about forensic science affects public expectations about real forensic science. Jurimetrics 47:357. 39 See U.S. News & World Report, op. cit.
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Strengthening Forensic Science in the United States: A Path Forward presented on television results in jurors giving more or less credence to the forensic experts and their testimony than they should, raising expectations, and possibly resulting in a miscarriage of justice.40 The true effects of the popularization of forensic science disciplines will not be fully understood for some time, but it is apparent that it has increased pressure and attention on the forensic science community in the use and interpretation of evidence in the courtroom. Fragmented and Inconsistent Medicolegal Death Investigation The medicolegal death investigation system is a fragmented organization of state and local entities called upon to investigate deaths and to certify the cause and manner of unnatural and unexplained deaths. About 1 percent of the U.S. population (about 2.6 million people) dies each year. Medical examiner and coroner offices receive nearly 1 million reports of deaths, constituting between 30 to 40 percent of all U.S. deaths in 2004, and accept about one half of those (500,000, or 1 in 5 deaths) for further investigation and certification.41 In carrying out this role, medical examiners and coroners are required to decide the scope and course of a death investigation, which may include assessing the scene of death, examining the body, determining whether to perform an autopsy, and ordering other medical tests, forensic analyses, and procedures as needed. Yet the training and skill of medical examiners and coroners and the systems that support them vary greatly. Medical examiners may be physicians, pathologists, or forensic pathologists with jurisdiction within a county, district, or state. A coroner is an elected or appointed official who might not be a physician or have had any medical training. Coroners typically serve a single county. Since 1877, in the United States, there have been efforts to replace the coroner system with a medical examiner system.42 In fact, more than 80 years ago, the National Academy of Sciences identified concerns regarding the lack of standardization in death investigations and called for the abolishment of the coroner’s office, noting that the office “has conclusively demonstrated its incapacity to perform the functions customarily required of it.”43 In its place, the report called for well-staffed offices of a medical 40 Schweitzer and Saks, op. cit.; S.A. Cole and R. Dioso-Villa. 2007. CSI and its effects: Media, juries, and the burden of proof. New England Law Review 41(3):435. 41 M.J. Hickman, K.A. Hughes, K.J. Strom, and J.D. Ropero-Miller. 2007. Medical Examiner and Coroners’ Offices, 2004. U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. Available at www.ojp.usdoj.gov/bjs/pub/pdf/meco04.pdf. 42 W.U. Spitz and R.S. Fisher. 1982. Medicolegal Investigation of Death, 2nd ed. Springfield, IL: Charles C. Thomas. 43 National Research Council. 1928. The Coroner and the Medical Examiner. Washington, DC: National Academy Press.
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Strengthening Forensic Science in the United States: A Path Forward examiner, led by a pathologist. In strong terms, the 1928 committee called for the professionalization of death investigation, with medical science at its center. Despite these calls, efforts to move away from a coroner system in the United States have stalled. Currently, 11 states have coroner-only systems, 22 states have medical examiner systems, and 18 states have mixed systems—in which some counties have coroners and others have medical examiners. Some of these states have a referral system, in which the coroner refers cases to medical examiners for autopsy.44 According to a 2003 Institute of Medicine report, in addition to the variety of systems in the United States, the location and authority of the medical examiner or coroner office also varies, with 43 percent of the U.S. population served by a medical examiner or coroner housed in a separate city, county, or state government office. Other arrangements involve an office under public safety or law enforcement. The least common placement is under a forensic laboratory or health department.45 Variability also is evident in terms of accreditation of death investigation systems. As of August 2008, 54 of the medical examiner offices in the United States (serving 23 percent of the population) have been accredited by the National Association of Medical Examiners, the professional organization of physician medical examiners. Most of the country is served by offices lacking accreditation.46 Similarly, requirements for training are not mandatory. About 36 percent of the population lives where minimal or no special training is required to conduct death investigations.47 Recently, an 18-year-old high school student was elected a deputy coroner in Indiana after completing a short training course.48 Additionally, funding for programs supporting death investigations vary across the country, with the cost of county systems ranging from $0.62 to $5.54 per capita, and statewide systems from $0.32 to $3.20.49 Most funding comes from tax revenues, and with such limited funds available, the salaries of medical examiners and skilled personnel are much lower than those of other physicians and medical personnel. Consequently, recruiting and retaining skilled personnel is a constant struggle. At a time when natural disasters or man-made disasters could create 44 R. Hanzlick and D. Combs. 1998. Medical examiner and coroner systems: History and trends. Journal of the American Medical Association 279(11):870-874. 45 Institute of Medicine. 2003. Medicolegal Death Investigation System: Workshop Report. Washington, DC: The National Academies Press. 46 Ibid. 47 R. Hanzlick. 1996. Coroner training needs. A numeric and geographic analysis. Journal of the American Medical Association 276(21):1775-1778. 48 See www.wthr.com/Global/story.asp?S=6534514&nav=menu188_2. 49 IOM, op. cit.
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Strengthening Forensic Science in the United States: A Path Forward great havoc in our country, the death investigation system is one that is of increasing importance. Deaths resulting from terrorism, with the exception of any suicide perpetrators, are homicides that require robust medicolegal death investigation systems to recover and identify remains, collect forensic evidence, and determine cause of death. Incompatible Automated Fingerprint Identification Systems In the late 1970s and early 1980s, law enforcement agencies across the Nation began adopting Automated Fingerprint Identification Systems (AFIS) to improve their efficiency and reduce the time needed to identify (or exclude) a given individual from a fingerprint. Before the use of AFIS, the fingerprint identification process involved numerous clerks and fingerprint examiners tediously sifting through thousands of classified and cataloged paper fingerprint cards. AFIS was an enormous improvement in the way local, state, and federal law enforcement agencies managed fingerprints and identified people. AFIS searches are much faster than manual searches and often allow examiners to search across a larger pool of candidates and produce a shorter list of possible associations of crime scene prints and unidentified persons, living or dead. Working with a system’s software, fingerprint examiners can map the details of a given fingerprint—by features that consist of “minutiae” (e.g., friction ridge endings and ridge bifurcations)—and ask the system to search its database for other records that closely resemble this pattern. Depending on the size of the database being searched and the system’s workload, an examiner often can get results back within minutes. However, even though AFIS has been a significant improvement for the law enforcement community over the last few decades, AFIS deployments and performance (operational capacities) today are still far from optimal. Many law enforcement AFIS installations are stand-alone systems or are part of relatively limited regional networks with shared databases or information-sharing agreements. Today, systems from different vendors often are incompatible and hence cannot communicate. Indeed, different versions of similar systems from the same vendor often cannot effectively share fingerprint data with one another. In addition, many law enforcement agencies also access the FBI’s Integrated Automated Fingerprint Identification System database (the “largest biometric database in the world”50) through an entirely separate stand-alone system—a fact that often forces fingerprint examiners to enter fingerprint data for one search multiple times in multiple states (at least once for each system being searched). Additionally, searches 50 See www.fbi.gov/hq/cjisd/iafis.htm.
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Strengthening Forensic Science in the United States: A Path Forward between latent print to AFIS 10-print51 files suffer by not being more fully automated: Examiners must manually encode a latent print before searching the AFIS 10-print database. Furthermore, the hit rate for latent prints searched against the AFIS database is approximately 40 percent (see Chapter 10). Much good work in recent years has improved the interoperability of AFIS installations and databases, but the pace of these efforts to date has been slow, and greater progress must be made toward achieving meaningful, nationwide AFIS interoperability. The Growing Importance of the Forensic Science Disciplines to Homeland Security Threats to food and transportation, concerns about nuclear and cyber security, and the need to develop rapid responses to chemical, nuclear, radiological, and biological threats underlie the need to ensure that there is a sufficient supply of adequately trained forensic specialists. At present, public crime laboratories are insufficiently prepared to handle mass disasters. In addition, demands will be increasing on the forensic science community to develop real-time plans and protocols for mass disaster responses by the network of crime laboratories and death investigation systems across the country—and internationally. The development and application of the forensic science disciplines to support intelligence, investigations, and operations aimed at the prevention, interdiction, disruption, attribution, and prosecution of terrorism has been an important component of both public health and what is now termed “homeland security” for at least two decades. With the development and deployment of enhanced capabilities came the integration of forensic science disciplines much earlier in the investigative process. As a result, the forensic science disciplines could be more fruitfully leveraged to generate investigative leads to test, direct, or redirect lines of investigation, not just in building a case for prosecution. Forensic science disciplines are essential components of the response to mass fatality events, whether natural or man made. The Admission of Forensic Science Evidence in Litigation As explained in Chapter 3, most forensic science disciplines are inextricably tethered to the legal system; many forensic fields (e.g., firearms analysis, latent fingerprint identification) are but handmaidens of the legal system, and they have no significant uses beyond law enforcement. There- 51 AFIS 10-print records the fingers, thumbs, and a palm print on a large index card. These prints are carefully taken, clear, and easy to read, and they make up the bulk of the AFIS data available today.
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Strengthening Forensic Science in the United States: A Path Forward fore, any study of forensic science necessarily must include an assessment of the legal system that it serves. As already noted, and as further amplified in Chapters 4 and 5, the forensic science system exhibits serious shortcomings in capacity and quality; yet the courts continue to rely on forensic evidence without fully understanding and addressing the limitations of different forensic science disciplines. The conjunction between the law and forensic science is explored in detail in Chapter 3. The bottom line is simple: In a number of forensic science disciplines, forensic science professionals have yet to establish either the validity of their approach or the accuracy of their conclusions, and the courts have been utterly ineffective in addressing this problem. For a variety of reasons—including the rules governing the admissibility of forensic evidence, the applicable standards governing appellate review of trial court decisions, the limitations of the adversary process, and the common lack of scientific expertise among judges and lawyers who must try to comprehend and evaluate forensic evidence—the legal system is ill-equipped to correct the problems of the forensic science community. In short, judicial review, by itself, is not the answer. Rather, tremendous resources must be devoted to improving the forensic science community. With more and better educational programs, accredited laboratories, certification of forensic practitioners, sound operational principles and procedures, and serious research to establish the limits and measures of performance in each discipline, forensic science experts will be better able to analyze evidence and coherently report their findings in the courts. This is particularly important in criminal cases in which we seek to protect society from persons who have committed criminal acts and to protect innocent persons from being convicted of crimes that they did not commit. ORGANIZATION OF THIS REPORT This report begins with a series of chapters describing the current forensic science system, the use of forensic science evidence in litigation, and science and the forensic science disciplines. It then addresses systemic areas for improvement with the goal of attaining a more rigorous and robust forensic science infrastructure, including standards and best practices, education, and training. Pursuant to its charge, in three chapters the committee addresses special issues in the areas of medicolegal death investigation (Chapter 9), AFIS (Chapter 10), and the interrelationships between homeland security and the forensic science disciplines (Chapter 11).
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