Transcript Slide 1

A Review of the National Academy of Sciences
Report on Forensic Science and possible
Consequences.
Barry A. J. Fisher
Crime Laboratory Director (Retired)
Los Angeles County Sheriff’s Department
[email protected]
Objective:
• The purpose of this presentation is to give an
overview of recent developments concerning
forensic science in the United States and to
comment on possible implications within the
U.S. criminal justice system.
• How these may affect forensic science
stakeholder in other parts of the world is
anyone’s guess.
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In 2005
• Congress directed the NAS to conduct a study
was directed by the U. S. Congress (though the
efforts of the Consortium of Forensic Science
Organization).
• The Consortium of Forensic Science
Organizations, CFSO is an advocacy group
made up of 7 organizations: AAFS, ASCLD,
ASCLD/LAB, FQS-I, IAI, NAME, and SOFT
(ABFT).
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Background on the CFSO
• Why the CFSO?
– Advocacy.
• How the CFSO began.
– Various forensic groups were giving different
messages to policy makers.
– We needed to have a single, consistent message.
• What has been accomplished?
– Recognition and legislation (funding).
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CFSO Lobbying efforts
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Authorizing legislation for the
study noted:
“While a great deal of analysis exists of
the requirements in the discipline of
DNA, there exists little to no analysis of
the remaining needs of the community
outside of the area of DNA. Therefore . .
. the Committee directs the Attorney
General to provide [funds] to the
National Academy of Sciences to create
an independent Forensic Science
Committee.
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This Committee shall include
members of the forensics
community representing
operational crime laboratories,
medical examiners, and coroners;
legal experts; and other scientists
as determined appropriate…”
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The National Academies
• The National Academy of Science (NAS) was
established during the American Civil War by
the United States Congress and signed into
law by President Abraham Lincoln on March 3,
1863 as "advisers to the nation on science,
engineering, and medicine.”
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Background to the NAS Report.
• On February 18, 2009, the National Academy
of Science issued its report entitled
Strengthening Forensic Science in the United
States: A Path Forward.
• The U.S. Congress charged the NAS to conduct
a comprehensive review of forensic science
and include a number of study issues.
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The Senate’s charge to the NAS
Forensic Science Committee:
1. To assess the present and future resource
needs of the forensic science community, to
include State and local crime labs, medical
examiners, and coroners;
2. To make recommendations for maximizing
the use of forensic technologies and
techniques to solve crimes, investigate
deaths, and protect the public;
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3 To identify potential scientific advances that may
assist law enforcement in using forensic
technologies and techniques to protect the
public;
4. To identify potential scientific advances that may
assist law enforcement in using forensic
technologies and techniques to protect the
public;
5. To make recommendations for programs that
will increase the number of qualified forensic
scientists and medical examiners available to
work in public crime laboratories
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6 To disseminate best practices and guidelines
concerning the collection and analysis of forensic
evidence to help ensure quality and consistency in
the use of forensic technologies and techniques to
solve crimes, investigate deaths, and protect the
public;
7 To examine the role of the forensic community in the
homeland security mission;
8 [To examine] interoperability of Automated
Fingerprint Information Systems [AFIS]
9 And to examine additional issues pertaining to
forensic science as determined by the Committee
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NAS Recommendations:
1. Congress should establish and appropriate
funds for an independent federal entity,
National Institute of Forensic Sciences (NIFS).
2. NIFS should establish standard terminology
for reporting on and testifying about forensic
science results of investigations.
3. Basic research is needed in accuracy,
reliability, and validity (particularly pattern
evidence).
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4. Remove forensic laboratories from the
control of law enforcement agencies.
5. Encourage research programs on observer
bias and the sources of human error.
6. Establish standard protocols for forensic
examinations, methods and practices.
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7. Oversight: mandatory forensic examiner
certification and forensic laboratory
accreditation.
8. Establish routine quality assurance and
quality control procedures to ensure
accuracy.
9. Establish a national code of ethics with an
enforcement mechanism.
10. Develop/improve graduate education
programs in forensic science.
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11. Improve medical legal death investigations
by replacing coroners with medical
examiners.
12. Launch a new broad-based effort to achieve
nationwide fingerprint data interoperability.
13. Coordinate national forensic science efforts
in terrorism and national disaster incidents
between National, State and local agencies.
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The NAS report is available at:
http://www.nas.edu/morenews/20090218.html
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Note about NAS (NRC)
recommendations:
• In the 1920s the NRC recommended that the
US switch from a Coroner’s system to a
Medical Examiner system.
• In the 1970s, the NRC recommended that the
US adopt the metric system of weights and
measures.
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What are the possible short term
consequences?
 Legislation.
 Congress is considering legislation based on
the report. At present, it is unclear how this will
all play out. It seems that proposals for NIFS
and removal of labs from police agencies does
appear to have much traction.
 The White House Office of Science and Technology
Policy has been holding meetings with Federal
agencies and other stakeholders to determine what
the Administration’s position might be.
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Expectations
• The defense bar is gearing up to use the
report to attack aspects of forensic
science, e.g. fingerprints, firearms, tool
marks, tire impressions, footwear
evidence, etc.
• Those who testify in these areas must
be prepared for my aggressive cross
examination.
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One issue likely to be raised:
• Can, pattern evidence, such as fingerprints, be related
to a sole individual, to the exclusion of all other
sources? This sort of conclusion has been given for
years.
• The NAS report holds up DNA as the “gold standard”
partly because of its use of statistics.
• Traditionally, conclusions proffered in pattern evidence
cases rely on experience. There is virtually no
statistical work available to offer probabilities or
likelihood, as with DNA evidence.
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Research is needed to put these
sorts of issues to rest.
• The U.S. Department of Justice’s National
Institute of Justice is funding some studies
on the issue of reliability (Daubert) but more
are needed.
• Other funding sources such as the National
Science Foundation need to “step up” to
address like issues. There are unique, cross
discipline studies that could be undertaken.
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Continuing education.
• Crime labs continue hiring and are faced with the
need to train a new generation of forensic
examiners.
• Labs rely on apprenticeship or mentor based
training because there is insufficient programs
available.
• Current programs, while excellent are not
sufficient. Simply stated: more programs are
needed.
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• In addition to forensic scientists, continuing
education is also need for:
– Police (first responders)
– Police investigators
– Prosecutors and defense attorneys
– Judges
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Accreditation
• The NAS report notes that all forensic
labs - public and private should be
accredited.
• Does this include police agencies who
offer forensic services outside of
traditional labs, e.g. crime scene
investigation, fingerprints, etc.?
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Certification
• The NAS report notes that anyone who
provides expert testimony [on a regular
basis] is to be certified.
• Does this mean police officers and civilians
within police agencies who testify as
experts?
• There is a significant capacity issue for
certifying bodies if this is the case.
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Applied research
• Pattern evidence: fingerprints, firearms, tire
impression and footprint evidence, hand
writing, bite marks, etc.
• Statistics – how can an experts opinion be
conveyed to the court when data is scarce?
– Report writing.
• Bias in forensic science.
• Interdisciplinary Collaboration.
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University’s Role
• To offer quality undergraduate and graduate
education programs.
• To conduct research in those areas needed by
the profession (basic and applied)
• To offer continuing education programs for
stakeholders.
• To act as a convener – to bring together policy
makers to examine important issues.
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The need for a comprehensive approach.
• Even if NIFS is not created, there is the
need for a single source at the Federal
level to coordinate the myriad of
activities and issues coming out of the
NAS report.
• Where should it be housed? DOJ, White
House Executive Offices, ...?
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Conclusions
• The NAS report presents unprecedented
challenges and opportunity for forensic science,
the criminal justice community and the judicial
system as a whole.
• It would be a shame to squander the chance to
improve the quality of justice in the United
States.
• It’s now up to policy makers at all levels to “step
up” and get to work.
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What affect will this report have?
• The NAS report has no actual force of law by
itself. The U.S. Congress is presently
considering legislation based on the
recommendations.
• However, because of the status of the NAS, it
will have a de facto impact on forensic science
through the courts, who may rely on some of
the findings.
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What’s next?
• Congressional action: For the NAS Report
recommendations to be adopted, Congress
will have to pass laws.
• The White House Office and Technology Policy
has been holding meetings with Federal
agencies which operate forensic labs as well as
other interested groups to determine what
the Administration will do.
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United States vs. Frye
• This 1923 U. S. Supreme Court case define
scientific evidence (expert testimony).
• The key phrase under “Frye” is the “general
acceptance” by the relevant scientific
community .
• The judge serve as the “gatekeeper,” that is he
decide if scientific evidence may be heard by
the jury.
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Daubert
• U.S. Supreme Court case (1993) which
redefined the way courts view scientific
evidence.
• Later expanded to all expert evidence under
the Kuhmo Tire decision (Federal Rules of
Evidence, rule 703).
• RELIABILTY test
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Pattern Evidence
• Developed by police, e.g. fingerprints,
firearms evidence, footwear evidence, tire
impression evidence, handwriting evidence,
etc.
• Pattern evidence has not had the same
degree of university based research as
traditional scientific disciplines, e.g. DNA.
• We are beginning to see the defense bar
preparing to attack the validity of pattern
evidence.
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As an example:
• Can fingerprints be related to a sole individual,
to the exclusion of all other sources. I expect
to see this sort of question asked about all
pattern evidence where examiners state with
certainty that a fingerprint, or a bullet, or foot
print, … came from a sole source.
• There will also be questions about the
reliability of pattern evidence in general.
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Final Thoughts on NAS Report
• Even though no laws have yet been passed, it
is reasonable to expect the contents of the
NAS report will be used by defense lawyers in
court cases.
• It is also not unreasonable for the defense bar
to inquire into other areas, such as, crime
scene investigation.
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It has started …
• The United States Supreme Court in
Melendez-Diaz vs. Massachusetts issued
its ruling on 25 June 2009 and cited the
National Academy of Sciences report in
its findings.
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Furthermore,
• I would expect both judges and defense
lawyers to be more familiar with forensic
science issues raised in the report then ever
before.
• And finally, I expect that some of the findings
from the NAS report may be considered
outside of the United States.
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