Improving the Practice and Use of Forensic Science - A Policy Review, The Justice Project, 2008
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THE JUSTICE PROJECT Improving the Practice and Use of Forensic Science A Policy Review The erroneous testimony of a forensic analyst helped convict Brandon Moon for a rape he did not commit. The botched handling of post-conviction DNA testing kept Moon in prison for seventeen years before he was ultimately exonerated. Improved oversight and regulation . of forensic science can prevent . such an injustice. Introduction............................................... 1 Problems & Solutions............................ 2 The Legal Landscape............................ 8 Profiles of Injustice.............................. 10 Snapshots of Success......................... 14 Questions & Answers......................... 15 Voices of Support................................ 16 A Model Policy...................................... 17 Literature. ................................................ 24 EDUCATION FUND “If forensic evidence is not objectively tested, analyzed, and interpreted by adequately trained scientists, the search for truth will potentially be compromised, if not defeated.” — B etty L ayne D es P ortes , D efense L awyer C hairwoman of J urisprudence S ection A merican A cademy of F orensic S ciences and of the THE JUSTICE PROJECT EDUCATION FUND INTROdUCTION F orensic science—the use of science to answer legal matched fingerprints tied to the 2004 Madrid train questions—includes well-known techniques such bombings. The FBI crime laboratory declared with as fingerprint analysis, DNA analysis, and ballistics one-hundred percent certainty that Mayfield’s finger(the analysis of firearms). In recent years, the use of prints matched fingerprints tied to the crime, but they forensic science in criminal investigations and trials were mistaken. After spending time in jail, Mayfield has steadily gained in popularity as an effective and was found to be innocent and was released. The FBI powerful tool for seeking truth and justice. The use was mistaken in its analysis. The mistakes made by of forensic science can effectively help convict those experienced analysts show that tools such as fingerprint guilty of crimes and can equally help exonerate the analysis, assumed by many to be objective barometers innocent. Popular crime of truth, involve subjective shows like CSI:CrimeScene interpretations. Although The justice Project Recommendations Investigation can give the scientists have developed •.States.should.create.an.independent,. impression that forensic scia good understanding of transparent.oversight.commission.to. ence is flawless. However, the sources of inadvertent develop.and.enforce.quality.standards. forensic science is not flawbias and have incorporatfor.forensic.science.laboratories. less, and its use in the crimied effective safeguards in nal justice system is in great other areas of science, most •.States.should.require.all.forensic. need of reform. To ensure forensic science laboratoscience.laboratories.to.develop.internal. a more fair and accurate ries—including the FBI structures.and.policies.to.prevent.bias.in. criminal justice system, it laboratory—do not provide testing.and.analysis. is critical to improve the adequate safeguards to pre•.States.should.ensure.that.all.forensic. reliability, objectivity, and vent bias and error in testlaboratories.are.independent.from.law. independence of forensic ing and analysis. enforcement.and.prosecutorial.agencies.. analysis—the expert examiIn recent decades, the •.States.should.require.that.all.forensic. nation or testing of physiuse of forensic science in laboratory.analysts.receive.proper. cal evidence to determine its criminal investigations training.and.certification. connection to a crime—and and trials has skyrocketed. forensic expert testimony No other forensic science •.States.should.allocate.sufficient. in criminal investigations technique has received as funding.to.adequately.implement.these. and trials. much attention as DNA recommendations. The common percepanalysis. To date, DNA has tion of forensic analysis as exonerated more than twoa precise, objective science often obscures the fact hundred people in the United States. These exonerthat many areas of forensic analysis involve disations are a reminder that our system is flawed, and cretionary interpretations by individual analysts. they have shed light on serious problems with the Because the need for interpretation introduces a sigcriminal justice system, including forensic science. nificant subjective element to some kinds of forensic While many assume that forensic science is a nearanalysis, normal tendencies of human psychology perfect tool for discovering the truth in criminal can influence the interpretation of data in a way that cases, a recent study found that false or misleading threatens the fairness and accuracy of the analysis forensic expert testimony is a leading contributing and testimony used in criminal trials. As such, forenfactor in wrongful convictions.1 In fact, forensic evisic science laboratories that lack internal procedures dence was presented by the state in 113 of the first and standards to prevent bias create the greatest two-hundred cases in which the defendant was later danger to achieving justice. exonerated by DNA testing.2 In the case of Brandon Mayfield, experienced FBI There are many cases where individual analysts’ fingerprint analysts found that Mayfield’s fingerprints erroneous or misleading analysis and testimony 1 w w w . T h e J u S T I c e P r o J e c T. o r g THE JUSTICE PROJECT have led to wrongful convictions. Some cases exemplify the most egregious errors and show intentional misconduct. These cases demonstrate the strong need for oversight of all forensic laboratories. One of the most notorious examples is Fred Zain, a former crime lab analyst in West Virginia and Texas, who fabricated test results in over one hundred cases during the late 1970s and throughout the 1980s.3 Many of the people convicted because of his work went on to serve lengthy prison sentences, including five who were later exonerated through DNA testing. In Texas, investigators discovered forensic pathologist Ralph Erdmann faking autopsies, but not before his testimony was used in twenty or more death penalty convictions.4 The misleading testimony of former Illinois analyst Pamela Fish has been implicated in the wrongful convictions of at least seven men.5 While these examples of deliberately false testimony are troubling, the bigger concern is inadvertent error. Fortunately, the same reforms that prevent misconduct also reduce the risk of unintentional mistakes. To increase the reliability, objectivity, and independence of forensic analysis and forensic expert testimony in criminal trials, and to increase fairness and accuracy in the criminal justice system, The Justice EDUCATION FUND Project recommends that states create an oversight commission to set and enforce quality standards for forensic labs, develop internal structures and policies in forensic labs to prevent bias in testing and analysis, make forensic labs institutionally independent from law enforcement and prosecutorial agencies, improve training and certification standards for forensic analysts, and increase funding to implement these essential changes. Without these reforms, the integrity of the criminal justice system is threatened. The Justice Project has developed this policy review to facilitate communication among the legal community, local law enforcement agencies, policymakers, practitioners, the public, and others by explaining the problems with forensic science, and by recommending positive reforms that can dramatically improve its practice. While forensic laboratories have yielded critical evidence in countless cases, preventable error has subverted justice, convicted the innocent, and jeopardized public safety. By implementing the reforms recommended in this policy review, states can dramatically improve the practice and use of forensic science. As such, states can improve the quality of evidence in criminal trials and increase fairness and accuracy within the criminal justice system. PROBLEMS & SOLUTIONS W hile errors in forensic analysis and forensic expert testimony are a leading contributing factor in wrongful convictions, a series of reform measures could dramatically reduce such errors. States can ensure a more fair and accurate criminal justice system by implementing a number of key reforms that would help improve the reliability and objectivity of forensic analysis and testimony in criminal investigations and trials. These reforms, described in greater detail below, should focus on the following: creating an independent, transparent oversight commission to set and enforce quality standards; developing structures and policies within laboratories to prevent bias in testing and analysis; ensuring institutional independence by making forensics laboratories independent of law enforcement and prosecutorial offices; improving training and certification standards for all forensics laboratory analysts; and providing adequate funding to ensure a more reliable and objective system. Without these reforms, the risk of erroneous forensic analysis and unreliable forensic testimony are likely to continue to contribute to wrongful convictions. States should create an independent, transparent oversight commission to develop and enforce quality standards for forensic science laboratories. While DNA testing has led to the exoneration of many wrongfully convicted individuals, it has also shed light on the deficiencies of forensic science in the criminal justice system. From negligence to misconduct, one study has shown that faulty forensic w w w . T h e J u sti c e P r o j e c t. o r g THE JUSTICE PROJECT evidence or testimony was a contributing factor in nearly sixty percent of wrongful convictions.6 Some of these wrongful convictions were a result of incorrect or improperly conducted tests. While many of these mistakes are likely unintentional, many of them could have been prevented with proper quality standards and policies. In some disturbing cases, crime lab analysts have intentionally fabricated or misrepresented test results to aid prosecutions.7 Intentional or unintentional, erroneous or misleading forensic analysis or testimony severely undermines the fairness and accuracy of criminal trials. Often operating with little or no oversight, forensic crime labs frequently lack safeguards necessary to prevent the introduction of erroneous forensic analysis into the courtroom, and most states lack any statutory standards for forensic laboratories. To prevent error, each state should create an independent oversight commission to regulate its forensic science laboratories. The creation of a state oversight commission would provide a venue for investigating cases of misconduct, negligence, or poor management of testing practices. The commission should implement quality assurance standards, and monitor laboratory performance. These commissions should include a cross-sec- EDUCATION FUND tion of people from inside and outside the forensic establishment and other stakeholders in the criminal justice system, including prosecutors and defense attorneys with expertise in forensic evidence. The commission should set and enforce standards for laboratory accreditation. Statewide standards and rigorous oversight of forensic testing ensure that labs operate in a way that is consistent with the highest scientific standards. The commission should create or adopt operational, training, administrative, and scientific standards and regulations for forensic laboratories and other entities performing or offering forensic analysis in the state. The standards should be designed to increase and maintain the objectivity, reliability, and efficiency of forensic testing and analysis. As such, the standards should include: • Minimum qualifications for forensic lab employees, including analysts; • Certification and continuing education requirements for all forensic techniques; • Training programs; • Quality control protocols; • Routine internal and external proficiency testing; Comparative Bullet-Lead Analysis: A Failed Forensic Test T he FBI has performed the technique of matching the chemical makeup of bullets found at crime scenes to other bullets—often called comparative bullet-lead analysis—on bullets from thousands of criminal cases. Scientists based the technique on the assumption that no two batches of bullets would have precisely the same chemical makeup, and that each batch of bullets would have a consistent chemical makeup within that batch. Unfortunately, neither one of these assumptions is true.8 Testimony from forensic analysts about comparative bullet-lead analysis has played a role in hundreds of trials nationwide, leading to the incarceration of a large number of individuals.9 A landmark 2004 study performed by the National Academy of Sciences severely undermined the assumptions forensics experts had made for years about the accuracy of comparative bullet-lead analysis. The study concluded that the test was far less precise than analysts had often stated during their testimony, and that some testimony about the method was “misleading under federal rules of evidence.”10 Despite concerns raised about the technique as early as 1991, defense lawyers and judges rarely, if ever, challenged comparative bullet-lead analysis testimony.11 The lack of comparative bullet-lead analysis challenges in court is a good example of the problem of relying on judges and attorneys, rather than experts in the sciences, to evaluate the validity of scientific testimony.12 Following coverage by the Washington Post and 60 Minutes, the FBI agreed to implement a monitoring system to ensure “the accuracy of its experts’ testimonies in court,” and has stopped using comparative bullet-lead analysis.13 w w w . T h e J u sti c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND • • Internal disciplinary procedures; Despite the terrible injustices caused by negliInternal structures and protocols to regulate gent practices, the discipline of lab analysts is rare. the flow of information between a forensic Even in the most extreme cases, such as that of West examiner and the person requesting forensic Virginia serologist Fred Zain, discipline is often weak services to minimize inadvertent bias in the or non-existent.16 Even when a technician is removed processing or interpretation of evidence and from the lab, the consequences of poor performance testimony; are often minor. On one occasion, the erroneous • Protocols for providing equitable access to testimony and serological work of Cleveland crimelaw enforcement, prosecutors, and defense lab technician Joseph Serowik led to the wrongful counsel, and a process for recording such conviction and thirteen-year incarceration of an contact with the forensic lab; innocent man. After the City of Cleveland fired • Protocols for documenting forensic tests, Serowik, a Cuyahoga County Common Pleas Judge examinations and analyses, and for archiving nominated him to head the forensics program of reports, bench notes, and other important nearby Youngstown State University.17 Developing documentation, and for appropriate disclosure and implementing procedures to hold forensic anaof such information; and lysts accountable for misconduct is • A licensing program for all an essential reform. Strong internal Despite the terrible forensic laboratories offerlab disciplinary procedures provide injustices caused by ing lab tests, exams or analyan important check on employee sis in the state. negligence—a significant cause of negligent practices, In addition to developing the wrongful convictions.18 the discipline of lab aforementioned forensic laboratory At the federal level, Congress analysts is rare. standards, the commission should acknowledged the need for forenensure public access to the accreditasics reform by passing the Justice tion program, including any and all documentation for All Act of 2004. The act directly addresses the with the end result of increasing transparency and need for forensic oversight, instructing the U.S. confidence in forensic evidence. Attorney General to create and appoint members The commission should provide an independent to a federal forensic science commission, requiring review of management practices and lab policies, while federal laboratories to undergo frequent audits, and also taking steps to ensure that testing and analysis expanding the requirements for the Paul Coverdell are performed accurately. The Justice Project recomForensic Science Improvement federal grant promends that such a commission would conduct effecgram.19 While the standards for forensics laboratotive accreditation and/or licensure audits, including a ries presented in The Justice for All Act of 2004 do review of testing and testimony in a random sample of not apply to state or local crime labs, it provides a completed cases. In addition, department heads and good model for states to follow by requiring the creanalysts should be interviewed to uncover problems ation of standards and ensuring oversight of forensic with competency, proficiency, or training. An audit laboratories. should also include blind proficiency testing—testStates should design standards and regulations ing in which the analyst is unaware of being evaluto increase and maintain the objectivity, reliability, ated—for all lab analysts. This technique maximizes efficiency, and accuracy of forensic laboratories and the reliability of the test as a performance barometer ensure that forensic analysis is performed in accorand effectively captures a snapshot of the analyst’s dance with the highest scientific standards. To that performance. Non-blind proficiency tests have been end, a number of states attempt to meet this goal shown to artificially inflate the accuracy of analysts’ by requiring accreditation by the American Society work, hiding actual problems.14 Other scientific fields of Crime Lab Directors Laboratory Accreditation regularly employ blind proficiency testing, which can Board (ASCLD/LAB).20 While this program has identify problems with an analyst’s routine testing promuch to recommend in terms of standards and cedures in a way that announced testing cannot.15 regulations, it falls short by lacking certain impor4 w w w . T h e J u S T I c e P r o J e c T. o r g THE JUSTICE PROJECT tant requirements including: independence from law enforcement and prosecutorial agencies, mandatory blind proficiency testing, and procedures to prevent inadvertent bias.21 Although requiring ASCLD/LAB accreditation is a vast improvement over a complete lack of standards, states should do more to ensure the accuracy of forensic science.22 EDUCATION FUND tions of the crime, and other unnecessary information can evoke strong emotions, creating greater risks of inadvertent bias. An expert with the FBI Materials Analysis Unit stressed that “you work so many of these cases that you try not to get involved, but it’s very difficult when a crime involves a baby or a small child, somebody that’s defenseless, and you find yourself, I think, working harder to try to establish something in a case.”27 Utilizing procedures to minimize bias is not a new idea. In fact, clinical and academic science labo- States should require all forensic laboratories to develop internal structures and policies to prevent bias in testing and analysis The information a forensic analyst receives prior to performing any forensic testing or analysis can have a subtle, but significant, effect on the objectivity of the analysis. When an analyst is assigned a sample to test, it is common that they receive a wide array of information about the sample and its context. Information such as details of the crime, names of suspects, where the police collected the sample, and the expected result can have a huge impact on the objectivity of the analyst. Information about the crime, suspects, and where data was collected may not be necessary to accurately conduct testing. At times, some of this data is necessary to perform analysis, but analysts and those they receive data from should take caution. Expectations and desires can influence perception, and this extraneous information can skew the outcome of the testing by subtly biasing the analyst.23 In one recent study, experienced examiners misidentified almost seventeen percent of fingerprints when given unnecessary contextual information.24 Forensic analysts are especially susceptible to biases if other analysts, police, or prosecutors inform them of other results from the same case before completing their own tests and making their own conclusions. Becoming aware of other test results or other case evidence from the same case can push analysts to expect a particular outcome, making it more likely that their conclusion will fulfill this expectation.25 These dangers are especially real given the subjective element of most forensic analysis and the high stakes of the test outcomes.26 Another factor increasing the danger of bias is the nature of crimes that leave forensic evidence behind. Many crimes with the greatest amount of forensic evidence available to test involve sensational acts such as murder, assault, or rape. Photos, descrip- The Need for oversight he story of the Houston Police Department’s (HPD) crime laboratory is a striking example of how poorly a forensics lab can operate without proper oversight. A recent independent investigation found that analysts at the HPD crime lab repeatedly tested DNA samples incorrectly and, in some cases, made up results without actually testing evidence.28 A special investigator was hired to examine the HPD crime lab’s work in thousands of cases and determined that the lab did not perform or performed incomplete serology work in over four-hundred cases.29 In addition to the retesting of many cases, including four death penalty cases, the investigation has proven the innocence of three men who were wrongfully convicted with erroneous testing and analyst testimony.30 There will likely be more exonerations because so few of the retests recommended by the investigation have taken place. Texas has recently taken important steps towards improving its forensics laboratories, but for those wrongfully convicted because of the practices of the HPD crime lab, no amount of reform can replace the time they lost in prison. Unfortunately, without independent investigations, there is no way to know how many other labs have problems similar to those experienced at the HPD crime lab. One thing is clear, however: only proper oversight and accountability can ensure that forensic science helps, rather than hurts, the criminal justice system. T w w w . T h e J u sti c e P r o j e c t. o r g THE JUSTICE PROJECT ratories regularly control for these biases. However, forensic labs generally do not.31 Because bias caused by extraneous information operates at a subconscious level, it cannot simply be “trained away.” In addition, bias caused by extraneous information is not a question of ethics or misconduct. Often, the bias is inadvertent. While training and professionalism are important, inadvertent biases are caused by subtle psychological tendencies that we all share, not by inexperience or a lack of professionalism. Laboratories can minimize biases by implementing appropriate internal structures and policies. One way to limit the amount of background information an analyst receives prior to testing is to create a position designed to manage the flow of information between law enforcement investigators and analysts, such as an evidence control officer. A person in such a position could filter out irrelevant information and provide an analyst with only the information needed to test the evidence. Evidence control officers should EDUCATION FUND have advanced degrees in science, enabling them to determine what information is necessary for accurate testing and to formulate the least subjective questions for analysts.34 This position, or another similar structure to prevent extraneous information from reaching analysts prior to testing, is necessary to protect against inadvertent bias. Minimizing inadvertent bias will improve the accuracy of forensic testing and analysis, increasing the reliability of the criminal justice system. States should ensure that all forensic laboratories are independent from law enforcement and prosecutorial agencies. In most states, police agencies or other public safety agencies have jurisdiction over the operation of public forensic laboratories.35 Due to the nature of their location within law enforcement or prosecutorial agencies, forensic science laboratory employees often have close, collegial relationships with law enforcement and prosecutors conducting investigations of crimes. In addition, many forensic analysts come from law enforcement backgrounds. As a result, analysts sometimes see their role as part of the crime-fighting team as opposed to being a fully objective agent of science.36 In some circumstances, the nature of forensic analysis will be unaffected by such factors. However, in other types of analysis—those types of forensic analysis with a significant subjective element—the risks of inadvertent bias cannot be ignored.37 States must address the issue of inadvertent bias on the part of analysts. Forensic science lab analysts must be fully objective agents of science. Analysts must operate without bias or favor. In its report, the Illinois Commission on Capital Punishment recommended that labs should operate as an “independent third force in the criminal justice system.”38 The operation of forensic laboratories as part of law enforcement or prosecutorial agencies is at odds with this needed objectivity. Making forensic science laboratories structurally independent from law enforcement and prosecutorial agencies is a reform that is needed to effectively guarantee an environment of impartiality and objectivity. The real harm of inadvertent bias is that: “Juries tend to regard forensic evidence more highly than they regard witnesses because it is purportedly more The Effects of Biasing Information ne study confirms what many experts had suspected about the power of biasing contextual information in forensic analysis.32 In this study, experienced analysts were asked to evaluate a series of fingerprints to determine if they matched.33 Though the analysts believed the prints were for an actual, open case, they were actually reexamining prints they had correctly evaluated in the past, this time accompanied by artificial contextual information, such as that the suspect had confessed. The results were striking. In cases where analysts were given contextual information about the fingerprints, they were wrong in almost seventeen percent of the cases. These errors were particularly notable because the same analysts had previously evaluated the prints correctly. This study highlights the need to ensure that contextual information does not undermine the objectivity of analysts by making forensics labs independent from law enforcement and prosecutorial agencies and by regulating the flow of information between investigators and forensic analysts. O w w w . T h e J u sti c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND objective. But forensic scientists work so closely with certification is less effective in ensuring competence the police and district attorneys that their objectivity than required certification.45 cannot be taken for granted.”39 One potential problem is that many analysts A handful of states are leading the way on come from criminal justice, rather than scientific, making labs independent from law enforcement backgrounds. Crime-fighting bias can lead to inacand prosecutorial agencies. Maryland, for examcurate results.46 Less scientific training also decreases ple, gives the Department of Health and Mental the likelihood that forensic analysts will critically Hygiene jurisdiction over the regulation of forenanalyze information received from police, prossics laboratories.40 The State Crime Laboratory in ecutors, and their colleagues.47 Even with scientific Arkansas operates independent of law enforcement training, however, a bachelor’s degree in some cases or the Attorney General and the executive direcis not enough to ensure competence. One study tor is accountable directly to found that, “hands-on training is the governor.41 Virginia also has needed to develop and maintain Analysts should be an independent Department of expertise, update knowledge and 42 Forensic Science. Other states skills, and keep up with advanccertified before they should follow the lead of these es and changes in technology.”48 are allowed to perform states. Forensic laboratory indeImproved training must involve forensic analysis or pendence is an essential part of additional field work and blind testify in criminal trials. addressing bias, as it effectively proficiency testing. protects the neutrality of forensic In addition to creating a protesting and testimony, thereby gram for certification and trainenhancing the fairness and accuracy of the criminal ing, laboratories should adopt and teach an ethical justice system. code. The creation of a strong ethical code provides analysts with a guide to understanding the serious States should require that all forensic science nature of their responsibilities by helping them navilaboratory analysts receive proper training gate the sometimes challenging ethical waters of a and certification. forensics laboratory. The output of any forensic science laboratory is only as strong as the analysts performing the work. States should allocate sufficient funding to Thus, any attempt to reform forensic science must adequately implement these recommendations ensure that laboratories provide proper training and Lack of funding is a common problem in public certification for its analysts. Currently, training proforensic laboratories. In many states, funding for grams vary wildly around the country. While forenforensic laboratories has remained constant, despite sic science is an important part of the criminal justice a dramatic increase in workload. As a result, labosystem, the practice itself is scientific in nature. Care ratories that do not receive adequate funding to is needed to ensure that forensic analysts have a implement much needed reforms are often incredgreater interest in performing objective science than ibly short-staffed, have underpaid lab employees, and in fighting crime.43 In addition to improving analyticarry large backlogs of evidence to be tested, resulting cal skills, effective training improves respect for, and in delayed trials.49 One study reports that increasing belief in, forensics as an objective science. the number of personnel in the field is the number Analysts should be certified before they are one need of the forensic science community.50 A lack allowed to perform forensic analysis or testify in of funding also endangers quality control and often 44 criminal trials. The commission recommended encourages rushed or non-existent oversight. above should adopt and enforce a certification and States must increase funding to implement the continuing education program for all forensic anaaforementioned recommended reforms. Laboratories lysts, examiners, and technicians in all forensic fields. can use new funding to increase capacity, an issue Certification should be mandatory, not voluntary. of critical importance for the countless jurisdictions Research in other fields has proven that voluntary across the country with backlogs of evidence waiting 7 w w w . T h e J u S T I c e P r o J e c T. o r g THE JUSTICE PROJECT to be tested. Due to low salaries, it is often difficult for forensic laboratories to hire and retain highly qualified analysts. As a result, increasing analyst salaries to make them more competitive is another pressing funding need. Salaries should reflect the importance of forensic analysts to the accuracy of our criminal justice system. Ninety-six percent of positions in forensic science laboratories are held by persons with a bachelor’s degree or less.51 Salaries must be competitive with other job opportunities to attract the best and the brightest applicants.52 The state-created oversight commission recommended above will also require funding. While it may be possible to have members EDUCATION FUND of the commission serve without compensation, the costs associated with any investigative oversight body will require funding. Without sufficient funding, such a commission cannot be effective. A failure to properly fund forensic science can lead to tragic results. Congress recognized the importance of adequate funding for forensic science in 2000 by passing the Paul Coverdell National Forensic Science Improvement Act.53 Now, states can follow the federal government’s lead to deal with backlogs of forensic material, increase the pay of qualified analysts, improve training, and create and enforce meaningful lab standards and oversight. THE LEGAL LANDSCAPE A ttorneys and judges have not been successful in their attempts to prevent the introduction of bad forensic evidence in the courtroom.54 Courts often admit forensic evidence with little scrutiny of its reliability. This failure is not necessarily caused by any bias or prejudice on the part of the court or the attorneys in the case. Rather, judges and attorneys often simply do not have the scientific background to make educated decisions about the reliability of evidence.55 This is especially significant given the weight that jurors are likely to put on forensic evidence. One study found that “[a]bout one quarter [of jurors who] were presented with scientific evidence believed that had such evidence been absent, they would have changed their verdicts—from guilty to not guilty.”56 The traditional standard for admissibility of expert testimony, as stipulated by the Supreme Court, is that the techniques used to gather and test the forensic evidence must be “generally accepted” by those in the field.57 The number of wrongful convictions caused by erroneous forensic testimony have shown this standard to be an insufficient safeguard. Ultimately, judicial safeguards alone are simply unable to effectively protect against faulty forensic evidence. As a result, statutory reform is vital to ensure the reliability of forensic evidence in criminal cases. The following section is a brief overview of the federal courts’ attempts to act as gatekeepers against unreliable types of forensic evidence. Daubert and the Expansion of Federal Rule of Evidence 702 The first 20th century ruling on the admissibility of expert testimony came in the 1923 case of Frye v. United States. In Frye, the Court held that, “expert opinion based on a scientific technique is inadmissible unless the technique is ‘generally accepted’ as reliable in the relevant scientific community.”58 The Federal Rules of Evidence Rule 702, instituted in 1975, superseded Frye at the federal level, but many states that had adopted the Frye standard in the wake of the Court’s decision continued to apply the Frye test in determining admissibility standards for the introduction of expert testimony in state courts. In 1993, the United States Supreme Court issued the landmark ruling of Daubert v. Dow Pharmaceuticals, ruling that “general acceptance” is not sufficient as a precondition for the admissibility of scientific evidence under the Federal Rules of Evidence. Rather, the Court explained, the Rules assign the trial judge with the task of ensuring that expert testimony “rests on reliable foundation and is relevant to the task at hand.”59 The Federal Rules of Evidence, in turn, were modified to clarify the Supreme Court’s decision in Daubert: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a w w w . T h e J u sti c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND cases.”66 Courts’ unwillingness to play gatekeeper in criminal cases means that Daubert has not prevented the introduction of unreliable forensic evidence in criminal cases. State laws on admissibility also vary widely. Some states continue to follow the Frye standard for admitting expert testimony while other states have opted to employ the Daubert standard in their courts. Four states, Wisconsin, Virginia, Georgia, and Utah, have created their own, non-Frye, non-Daubert rules.67 When compared with the Frye standard, Daubert Traditional types of forensic evidence are easily made admissibility easier for relatively new, welladmitted into court under either standard and most grounded science which might jurors consider it highly trustwornot yet have achieved wide accepthy. Thus, it is imperative to do Case law and the tance. Conversely, for poorlywhat is possible to ensure that it is, record of exonerations grounded sciences which nonein fact, trustworthy. theless had come to be widely illustrate that judges accepted, Daubert raised the KuMHO: aN ExTENSION OF are simply unable to threshold and made admissibility daUBERT effectively keep faulty harder (because such fields fall KumhoTireCo.v.Carmichael is forensic evidence out short on Daubert’s more objective another important U.S. Supreme criteria).61 Furthermore, Daubert Court case ruling on the issue of of the courtroom. places the determination of reliexpert testimony.68 Kumho makes ability in the hands of judges with clear that Daubert applies to all the implication “that the trial judge, after applying kinds of expert testimony, not only scientific testimony: various measures, would know scientific reliability when he or she saw it.”62 It would prove difficult, if not impossible, for Daubert created an important precedent. The judges to administer evidentiary rules under Daubert standard was used to challenge the dependwhich a “gatekeeping” obligation depended ability of expert evidence presented by plaintiffs in upon a distinction between “scientific” knowl63 civil cases. Commentators hailed this ruling as a edge and “technical” or “other specialized” powerful improvement from the Frye standard, but knowledge. There is no clear line that divides enthusiasm muted when it became clear that courts the one from the others…We conclude that would aggressively apply the standard in civil cases Daubert’s general principles apply to the expert 64 while rarely applying it in criminal cases. matters described in Rule 702.69 Following Daubert, the quality of expert testimony in civil cases increased dramatically. Judges Kumho has important implications for forensic were much less enthusiastic about applying the science. In amicus briefs for the case, forensic sciDaubert standard to criminal cases. When criminal entists, realizing that much of their work was not defendants challenged the reliability of forensic based on well-researched and established foundaevidence on the grounds of the Daubert standard, tions, asked the court not to extend Daubert beyond judges consistently ruled in favor of the governthe realm of science. Forensic scientists hoped to ment, maintaining broad admissibility of ‘expert’ find refuge (and continued admissibility) by refraintestimony.65 One scholar observes a “troubling gap ing from calling what they did “science.”70 In Kumho, in the way judges apply Daubert and Rule 702 in the Supreme Court rejected this argument, and the civil cases and criminal cases. Judges have excluded stage was set for the foundations of forensic scia lot more evidence in civil cases since Daubert and ence to be evaluated more rigorously by the courts. there has been surprisingly little change in criminal Regrettably, the lack of judicial gatekeeping with fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.60 9 w w w . T h e J u S T I c e P r o J e c T. o r g THE JUSTICE PROJECT respect to forensic science following Kumho makes clear that forensic scientists had no reason to be as worried as they were. In the context of prosecutionproffered forensic identification expertise, “[t]here is almost no expert testimony so threadbare that it will not be admitted…”71 Case law and the record of exonerations illustrate that judges are simply unable to effectively keep faulty forensic evidence out of the courtroom. And EDUCATION FUND history has shown that defense lawyers are often unable to judge the reliability of forensic testimony. Consequently, lab results are almost always accepted prima facie without regard to whether the laboratory lacks appropriate standards, independent oversight, or adequately trained and qualified analysts. Statutory forensic science reform is vital to ensure the reliability of forensic evidence in criminal cases and to protect against wrongful convictions. PROFILES OF INjUSTICE Ron Williamson & dennis Fritz’s Story I naccurate and misleading forensic evidence led received from Fritz, and four hairs that were “consisto the conviction of Ron Williamson and Dennis tent” with the sample from Williamson. During his Fritz for a rape and murder they did not commit. testimony at trial, he said the hairs were “consistent Each spent over a decade in jail—Williamson on microscopically and could have come from the same death row—until DNA testing exonerated them. source.” This meant, in his opinion, that the visual Prior to their arrests, Fritz was a high school teacher hair comparison did not exclude Williamson and and a single father and Williamson had been a star Fritz as suspects.74 baseball player before an injury prevented him from Visual hair comparison was first used in criminal playing anymore, and psychiatric disorders began to prosecutions in the U.S. in 1882 in Wisconsin, where plague him.72 an expert visually compared two The main physical evidence hairs, then claimed they came from The main physical purporting to link Williamson and the same source.75 On appeal the evidence purporting Fritz to the crime was a microscopic Wisconsin Supreme Court ruled hair comparison. Forensic analysts that this type of evidence was of a to link Williamson compared the hairs of Williamson “dangerous character.”76 Since then, and Fritz to the crime and Fritz with those found at the the science of visual hair compariwas a microscopic scene. Though the investigators colson has not advanced. The court, lected hairs from the victim’s famgranting Williamson his writ of hair comparison. ily and friends and other suspects, habeascorpus, wrote, “This court has habeascorpus an analyst at the Oklahoma State found an apparent scarcity of scienBureau of Investigation (OSBI), testified that out tific studies regarding the reliability of hair analysis of the forty-five reference samples she received, she testing. The few available studies reviewed by this only mounted those belonging to Williamson and court tend to point to the method’s unreliability.”77 Fritz onto microscopic slides. The same analyst later The court cited a study from The Law Enforcement felt that she could not be objective in the investigaAssistance Administration of over two hundred crime tion because of the stress and strain of working on labs that found the weakest area of performance was numerous homicide cases and she gave the samples visual hair comparison, with error rates as high as to another staff member, Melvin Hett.73 sixty-seven percent on individual samples, and inacHett testified that he spent several hundred curacies in four out of five of the samples analyzed in hours examining the hair samples he received. He the majority of police laboratories.78 claimed to have found eleven hairs from the crime In addition to the visual hair comparison, the scene that were “consistent” with the sample he OSBI tested semen, saliva, and blood found at the 10 w w w . T h e J u S T I c e P r o J e c T. o r g THE JUSTICE PROJECT scene. The forensic evidence obtained in these investigations was integral to the convictions of Williamson and Fritz. Testing of the semen and saliva revealed that the perpetrator of the crime was a “non-secretor,” a characteristic shared with fifteen to twenty percent of the population. Non-secretors do not secrete any blood antigens that would identify blood type into other bodily fluids; therefore blood type cannot be determined from the semen or saliva of these individuals. During the investigation, a forensic analyst at OSBI tested the saliva of twenty individuals, including the victim, to determine whether or not they were secretors. Of these twenty, twelve individuals were non-secretors, including both Williamson and Fritz. Despite this information, the analyst did not seek to confirm any of the individuals’ status as non-secretors through an additional blood test, except for Williamson and Fritz.79 EDUCATION FUND Although the blood type of the perpetrator could not be determined from the semen or saliva, the OSBI was able to identify the blood type found under the victim’s fingernails as type A, the same as the victim’s. Both Fritz and Williamson have type O blood.80 After Williamson’s public defender had received permission to test the DNA found at the scene and Fritz had contacted The Innocence Project for post-conviction assistance, tests conclusively exonerated both men. The DNA found at the scene matched the man who had originally led police to suspect Williamson in the first place.81 The true perpetrator had given samples of hair at least twice to Oklahoma authorities during the original investigation, but the OSBI failed to compare them with the unidentified hairs found at the victim’s apartment.82 donald Reynolds & Billy Wardell’s Story C hildhood friends Donald Reynolds and Billy only have come from thirty-eight percent of the black Wardell spent over a decade in prison for a male population, and that Reynolds was included in crime they did not commit, largely due to a lack of this segment of the population.85 oversight and transparency in the forensic lab that Nearly a decade after their trial, DNA testing was tested evidence in the case. In addition, an exculpafinally conducted on semen from the rape kit, proving tory forensic report was never disclosed, and the that neither Reynolds nor Wardell was the attacker.86 erroneous testimony of a forenAlthough prosecutors originally sic expert was used to shore up opposed overturning the convicNearly a decade after questionable eyewitness identifitions, arguing that the eyewitcations. In 1997, DNA tests exonness identifications should trump their trial, DNA testing erated them both. the DNA, a new assistant state’s was finally conducted Before their joint jury trial, attorney took over the case and on semen from the rape Reynolds and Wardell requested eventually agreed to the release of kit, proving that neither that DNA evidence in the case Reynolds and Wardell.87 be tested. The judge denied the Evidence of wrongdoing by Reynolds nor Wardell request on the grounds that the the forensic experts was uncovwas the attacker. testing was too new and its reliered after Reynolds and Wardell ability and methodology not yet were released. The testimony of sufficiently established to allow it in court.83 As a forensic lab analysts Pamela Fish, which claimed that result, only basic blood testing was performed on the the perpetrator and Reynolds both had a blood type evidence. characteristic shared by only thirty-eight percent of At trial, the victims of the crime identified black males, was exposed as false. Fish based her tesReynolds and Wardell as their attackers.84 In additimony on what forensic experts later characterized tion, police serologist Pamela Fish testified at trial as a “narrow, prejudicial view of the evidence.”88 In that semen recovered from one of the victims could fact, an independent expert analysis showed that, had 11 w w w . T h e J u S T I c e P r o J e c T. o r g THE JUSTICE PROJECT Fish accounted for other possibilities, nearly eighty percent of black males could have shared the characteristic.89 The false testimony was only discovered as a result of investigations into the unrelated wrongful conviction of John Willis (another victim of Fish’s misleading testimony).90 An independent analysis of cases in which Fish testified found that, “[i]n many of these cases, Ms. Fish misrepresent[ed] the scientific significance of her findings either directly or by omission … The nature of these errors are such that a reasonable investigator, attorney or fact finder would be misled ... And always … she offered the opinion most damaging to the defendant.”91 Fish’s misleading testimony has since been identified as a factor in the wrongful convictions of at least five others.92 In addition to the misleading testimony, important exculpatory forensic results were never provided to defense lawyers despite their formal requests for all scientific tests and any exculpatory evidence. Chicago Police crime analyst Maria Pulling prepared a report concluding that hairs found on Reynolds’ underwear did not match either victim. It is unclear whether the failure to disclose the report was intentional or inadvertent, but Pulling later swore of her report that “It was significant exculpatory information—it indicated EDUCATION FUND that the hair and fiber evidence taken from [the victim] did not match the evidence from Reynolds. This should have been reported to the defense.”93 Dr. Howard Harris, former head of the New York City police crime lab and former president of the American Society of Crime Lab Directors, prepared a report at the request of attorneys for Reynolds and Wardell, in which he identified many shortcomings in the Chicago Crime Lab. Prominent among them were a lack of training and guidelines regarding presentation of testimony, and a lack of monitoring of testimony that could serve as a check on misleading characterizations of results. “Failure to train and/or monitor examiners’ courtroom testimony can lead to serious deviations from proper testimony,” wrote Harris. “Further, the importance of resisting advocacy type pressures from investigators or state’s attorneys is also an ethical issue of great difficulty for examiners, particularly in police-run crime laboratories and should be formally covered in training.”94 Reynolds and Wardell each lost eleven years of their lives. After receiving pardons from Governor Jim Edgar, the Illinois Court of Claims paid each of them $120,300.95 They also recovered $45,000 each in a settlement of a civil suit against the city.96 Brandon Moon’s Story E rroneous forensic testimony by a state forensic crime lab analyst and the botched handling of exculpatory post-conviction DNA results kept Brandon Moon in prison for seventeen years for a rape he did not commit. Authorities arrested Moon after the victim tentatively picked him out from a photo array. She later identified Moon in a live lineup. Based on the identification, police contacted three other women who had been victims of similar attacks in the same area, all of whom subsequently identified Moon as their attacker. At trial, the prosecutor called Glen David Adams, a serologist at the Texas Department of Public Safety (DPS) Crime Lab in Lubbock, to the stand to testify that physical evidence corroborated the eyewitnesses identification. Adams testified that he examined the semen stains from the crime scene, and that his analysis excluded the victim’s husband and son, but indicated Moon could have been the source of the semen. He explained that the semen was deposited by a non-secretor—one whose blood type antigens are not found in other body fluids— and that Moon was among only fifteen percent of the population that was a non-secretor. Jurors later said that Adams’ testimony figured prominently in their decision to convict.97 Despite his conviction, Moon continued to proclaim his innocence and began filing motions to have the evidence re-tested. Eventually, he won access to DNA testing—technology that was still in its infancy at the time. While the results of the tests seemed to exclude Moon as the source of some crime scene evidence, the results were not yet 12 w w w . T h e J u sti c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND exculpatory because the victim’s reference sample teenage son (it was the son’s bathrobe), prosecutors was not tested. Moon continued to petition for could argue that the results were not exculpatory, further testing. because the perpetrator may not have left DNA In 1996, Assistant El Paso District Attorney John behind.102 Davis was preparing a response to Moon’s latest Moon’s new lawyers with the El Paso Public appeal and requested that the DPS crime lab review Defender’s Office tracked down the victim’s now the evidence. In a December 1996 internal memo, ex-husband, but could not find her son. The ex-husDPS scientist Donna Stanley raised serious questions band agreed to offer a DNA sample, but, believing it about the original DPS testing and testimony by would be useless unless they could also get a referAdams. Stanley wrote in the memo “It is imperative ence sample from the son, the lawyers waited to colto obtain a blood sample from Brandon Moon and lect it while they continued their search.103 98 the victim’s husband in order to resolve this case.” The Innocence Project subsequently took the Stanley proceeded with DNA testing that proved case. In November 2004 the victim’s husband gave a that the crime scene stains on a reference sample that matched the comforter and bathrobe came from comforter stain but not the bathDNA testing two different men. She sent a report robe. Further testing proved that the to Davis in January 1997 stating son could not have been the source demonstrated reference samples from Moon and of the stain either, leaving only the Moon’s innocence, the victim were too old and degradrapist.104 and it also exposed ed to test. Stanley claimed that DNA testing demonstratgrave flaws in the additional reference samples from ed Moon’s innocence, and it also Moon, the victim, and her ex-husexposed grave flaws in the original original work and band were needed to determine work and trial testimony of Glen D. trial testimony of whether Moon could be excluded as Adams, the state crime lab’s seroloGlen D. Adams, the the perpetrator by the crime scene gist. Adams testified that the victim’s state crime lab’s evidence. She left her DPS job four husband was definitely excluded as days after sending her report to a source of the comforter stain, yet serologist. Davis. By this time Moon’s appeal DNA proved that the comforter had been denied.99 stain originated from the husband. No one in the DPS lab or the DA’s office ever In fact, Adams’ original testing could not have followed up on the request for reference samples. included or excluded any person or suspect.105 Lab officials said they could only act at the direction An investigative reporter with the ElPasoTimes of the DA’s office. A DPS spokesperson offered the later documented that Adams was brand new at his following explanation to the El Paso Times in 2005: job when assigned the Moon case, had received a “No additional samples were ever received, so there D in his college serology course, was struggling was no further work to complete; therefore no other through a significant work backlog at the time, and personnel were assigned to the case.”100 Assistant El that a supervisor indicated in a review that he had Paso DA John Davis told the paper that it “wasn’t my an insufficient understanding of the basics of blood role as the prosecutor to go out and manufacture or analysis.106 produce exculpatory evidence.” In short, both the lab In December 2004, after the multiple tests and and the prosecutor ignored Stanley’s red flags.101 analyses were complete, Brandon Moon was finally Based on Texas’ then-new post-conviction DNA freed from prison with the support of prosecutors testing statute, Moon finally won access to further after seventeen years of wrongful incarceration. El testing in 2002. This testing conclusively excluded Paso District Attorney Jamie Esparza issued the Moon as the contributor of any semen from the following statement: “I would like to convey my crime scene comforter or bathrobe, but the results apologies to Mr. Moon on behalf of the state of were still not enough to free Moon. If the stains Texas and acknowledge that an apology at this time could be traced to either the victim’s husband or is inadequate…”107 1 w w w . T h e J u S T I c e P r o J e c T. o r g THE JUSTICE PROJECT EDUCATION FUND SNaPShOTS OF SUCCESS W hile most states lack important safeguards that prevent against erroneous forensic analysis and testimony, some states have taken measures to ensure that forensic science and testimony are fair, accurate, and reliable. States like Maryland, New York, and Texas are case studies in forensics reform. NEW yORK A 1994 law in New York created an oversight board to regulate forensic laboratories in the state.111 The board sets minimum standards for accreditation, which include an initial inspection of the lab, routine inspections, quality control, and annual certification. The board can also investigate cases of negligence or MaRyLaNd misconduct. The board can revoke accreditation if, On April 24, 2007, the governor of Maryland among other things, there is misrepresentation during signed a bill creating an independent system for the the initial accreditation or if the lab shows a pattern oversight of forensic laboratories in Maryland.108 of excessive errors. The commission has determined Maryland’s law actively fosters fairness and accuthat accreditation by the American Society of Crime racy at publicly funded forensics Laboratory Directors Laboratory laboratories by giving oversight Accreditation Board (ASCLD/ Maryland’s law actively responsibility to the Department LAB) or the American Board of of Health and Mental Hygiene Forensic Toxicology is sufficient fosters fairness and (DHMH), rather than the to ensure quality, but requires accuracy at publicly Department of Public Safety or that inspections take place roughfunded forensics the Attorney General. ly every two and one half years, laboratories by giving The legislation directs the rather than every five years as DHMH to create a quality assurrequired by ASCLD/LAB.112 oversight responsibility ance program, retain all case files The commission must meet to the Department for ten years, establish qualificaat least four times a year and of Health and Mental tions for personnel of forensic consists of fourteen members laboratories, establish procedures who receive no compensation. Hygiene, rather than for verifying the background and The commissioner of the divithe Department of education of personnel, and estabsion of criminal justice services Public Safety or the lish additional standards assuring and the commissioner of the Attorney General. that labs provide accurate and department of health or his or reliable services. The legislation her designee are automatically also creates a forensic proficiency members of the committee, and program, overseen by the Secretary of the DHMH. the governor appoints twelve other members to Licensing will be required for labs beginning in 2012. serve three year terms. The director of Department’s Office of Healthcare The law also establishes that tampering or Quality at DHMH commented that this delay was attempting to tamper with any DNA sample or needed, “to be sure that we do this right. We want to collection container without lawful authority is a work with the laboratories and the advocates…really Class E felony.113 John Hicks, Director of New York bridge the gap between the people who are seeking State’s Office of Forensic Services, has said that the change and the people who are providing the serreforms have been successful.114 He points specifi109 vices.” cally to the working groups established by the Office If any lab is found to not meet the DHMH stanof Forensic Services as being a model for other states dards, DHMH will document the reasons and make to follow. Analysts and other forensics lab employees such information public. In addition, labs must make are grouped according to job-function, and meet two discrepancy logs, contamination records, and test to three times a year. During these meetings, they results available to the public within thirty days of share experiences and find solutions to problems completion.110 they encounter. The meetings add uniformity and 14 w w w . T h e J u S T I c e P r o J e c T. o r g THE JUSTICE PROJECT increase shared knowledge of the analysts at New York’s twenty-three forensics laboratories. Finally, proper funding ensures that New York does not have a backlog of DNA analysis for pending cases, turning around nearly all evidence within thirty days.115 EDUCATION FUND ten million dollars to the Department of Public Safety for its crime labs.117 Texas also passed legislation in 2005 creating a Forensic Science Commission, which is similar in composition to the New York Forensic Science Commission mentioned above.118 The creation of this commission is a major step towards implementing effective, independent oversight. As an investigative body, the commission’s main responsibilities are to identify problems, recommend quick corrective action, and demand effective implementation of reforms. Members of the commission are appointed by the governor, attorney general, and lieutenant governor. The commission was appropriated $500,000 in the 2007 legislative session. Texas Since the investigation of the Houston Police Department (HPD) crime lab, Texas has taken steps toward forensic science reform. In response to the 2002 audit of the HPD crime lab, the Texas state legislature passed legislation in 2003 requiring evidence to come from laboratories accredited by the Department of Public Safety in order to be admissible at trial.116 The bill also appropriated almost Questions & Answers the criminal justice system. DNA-based exonerations shine a light on the failures of our criminal justice system, and the results for forensic science do not inspire confidence. Erroneous and misleading forensic science is the second leading contributing factor in wrongful convictions, contributing to nearly sixty percent of the first two-hundred wrongful convictions overturned by DNA evidence.120 I thought forensic science was fool-proof. Why are reforms necessary? When properly conducted, forensic analysis can be a useful tool, helping to increase the accuracy of our criminal justice system. Due to the fact that forensic science enjoys a reputation as an objective, precise type of evidence, judges and juries often accept forensic evidence and testimony with little challenge. Therefore, it is critical that forensic analysis and testimony be as accurate as possible. Unfortunately, the lack of oversight, structural independence, proper training, and adequate funding for forensics in most states undermines the accuracy of forensics analysis. Inaccurate or misleading forensic analysis is a leading contributing factor in wrongful convictions.119 Fortunately, there are solutions to this problem. Implementing the reforms outlined in this review accomplishes two goals: strengthening the convictions of the guilty, and reducing the likelihood of imprisoning the innocent. Why do judges allow the use of erroneous forensic evidence and testimony? Judges often lack the scientific expertise and background to determine the reliability of forensic evidence. In addition, attorneys often lack the scientific background necessary to effectively cross-examine forensic experts and expose faulty science. Courts have rigorously upheld rules about the admissibility of expert testimony in civil cases, but these rules are seldom used in criminal cases. The courts have left it to state legislatures to implement standards and oversight of forensic laboratories. In recent years, states such as Maryland and Texas have demonstrated that they take this responsibility and have passed legislation to improve oversight, standards, training, and certification. Has forensics played a role in wrongful convictions? Issues with forensic science are enough of a problem to jeopardize the fairness and accuracy of 15 w w w . T h e J u sti c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND VOICES OF SUPPORT “[Forensic science] is justice’s best friend, but it has to not only be used right but done right. There needs to be a way to hold the labs accountable.”121 “This [Virginia state] laboratory that touts itself as the best DNA laboratory in the country generated erroneous test results in a capital case twice, using two different DNA methods … I think this proves our point that crime labs cannot police themselves.”126 Juan Hinojosa Texas State Senator USA Today, March 31, 2006 Peter Neufeld Co-director of The Innocence Project Chicago Tribune, May 8, 2005 “Full disclosure by [crime labs] is crucial to the integrity of the system.”122 “There needs to be vigorous disclosure and vigorous scrutiny in any adversarial system … In our American system of justice, we don’t just rely on the government to tell us everything is right.”127 Anne Daly President of Washington Defenders Association Seattle Post-Intelligencer Reporter, March 13, 2004 Greg O’Reilly Chief of Cook County Public Defender’s Forensic Unit, Illinois Chicago Tribune, October 20, 2004 “More frequent audits by an independent body are needed to ensure the lab is following proper protocols… One wrongful accusation in my mind is just inexcusable. It should be above reproach.”123 Senator Val Stevens Arlington, Virginia Seattle Post-Intelligencer Reporter, September 14, 2004 “If I’m a defense counsel and there’s science involved … [I] should be able to go to that examiner and be able to say, ‘What did you do? What was your method? What were your findings?’ And the people who are working at the state crime lab should not take the position that ‘we are an arm of the prosecution.’ They’re scientists. They should be an arm of the truth.”128 “A diverse commission with a lot of liberty to go into local jurisdictions and look at their labs looks like the best answer.”124 Senator John Whitmire Texas Senate Criminal Justice Chairman The Houston Chronicle, February 28, 2005 Judge Daniel Locallo Cook County Circuit Court, Illinois Chicago Tribune, October 20, 2004 “It’s not unusual for people in a lab position to get pressure from various agencies about what tests are needed or when you get to testimony. The DA’s office can exert pressure. If your program isn’t set up to protect your analysts from that, it can lead to trouble. An oversight board might make sense… To keep the current lab structure, but have a board that involves law enforcement types but also scientists and others, would allow us to continue to serve our communities.”125 “The search for truth in criminal cases has increasingly relied on the forensic science community. If forensic evidence is not objectively tested, analyzed, and interpreted by adequately trained scientists, the search for truth will potentially be compromised, if not defeated.”129 Betty Layne DesPortes Defense Lawyer and Chairwoman of Jurisprudence Section of the American Academy of Forensic Sciences ABA Journal, July 2005 Timothy Sliter Dallas’ Southwestern Institute of Forensic Sciences The Houston Chronicle, February 28, 2005 16 w w w . T h e J u sti c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND A MODEL POLICY An Act to Ensure the Objectivity and Reliability of Forensic Evidence 130 Section I. Purpose The purpose of this Act is to enhance the reliability, independence, and objectivity of forensic analysis and testimony in order to ensure a fair and accurate criminal justice system that convicts the guilty and protects the innocent from wrongful conviction. Section II. Definitions When used in this Act: A. “Forensic laboratory” means a facility, entity, or site that offers or performs forensic analysis. B. “Forensic analysis” means medical, chemical, toxicological, firearms, or other such expert examination or test performed on physical evidence, including DNA evidence, for the purpose of determining the connection of the evidence to a criminal act. C. “Physical evidence” means any object, thing, or substance related to a criminal act. D. “Blind external proficiency testing” means a test sample that is presented to a forensic laboratory for forensic testing through a second agency, and which appears to the analysts to involve routine evidence submitted for forensic testing. E. “Commission” refers to the Forensic Science Oversight Commission, as outlined in section III of this Act. Section III. Forensic Science Oversight Commission A. There is hereby created the Forensic Science Oversight Commission. The Commission shall be composed of the following eleven members: 1. The Chief Justice of the Supreme Court shall appoint one member who is a judge. 2. The Governor shall appoint four members as follows: a. One member who is a prosecutor with expertise in forensic evidence, selected from a list of ten prosecutors provided by the State District Attorneys Association; 17 w w w . T h e J u sti c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND b. One member who is a criminal defense lawyer with expertise in forensic evidence, selected from a list of ten defense lawyers provided by the State Criminal Defense Lawyers Association; c. One member who is a forensic scientist who specializes in DNA analysis; d. One member who is a forensic scientist who specializes in a forensic discipline other than DNA analysis; 3. The Governor shall appoint six members selected from lists provided by the Chancellor of the State University System (three nominees for each): a. One member who is a law professor with expertise in forensic evidence; b. One member who is a faculty member of a medical school and specializes in clinical laboratory medicine; c. One member who is an academic research scientist with a PhD in biology or some sub-discipline thereof; d. One member who is an academic research scientist with a PhD in chemistry or some sub-discipline thereof; e. One research scientist with a PhD engaged in pharmaceutical sciences; f. One member who is an academic social scientist with expertise in experimental psychology. B. Each member shall serve a four-year term and may be reappointed for additional terms. The governor shall designate a member to serve as presiding officer. C. The commission shall meet at least four times each year and may establish its own rules and procedures concerning the conduct of its meeting and other affairs not inconsistent with law. D. No member of the commission on forensic science shall be disqualified from holding any public office or employment, nor shall he or she forfeit any such office or employment, by reason of his appointment hereunder. E. Members of the commission shall receive no compensation for their services but shall be allowed their actual and necessary expenses incurred in the performance of their functions hereunder. F. Hereafter in this Act the Commission on Forensic Science will be referred to as “the Commission.” 18 w w w . T h e J u sti c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND G. The Chair of the Commission shall, with the approval of a majority of the Commission’s members, hire an Executive Director of the Commission. The Executive Director shall employ, in accordance with the provisions of the [state] Personnel Code, administrative, professional, clerical, and other personnel as may be required to perform the duties of the Commission. The Executive Director may organize the staff of the Commission as he or she may deem appropriate. The Executive director may, with the approval of the Commission, hire independent contractors as necessary to carry out the Commission’s duties, including, but not limited to, investigators, auditors, and quality assurance experts. Section IV. Tracking and Investigating Allegations of Misconduct, Negligence, and Error A. The Commission shall develop and promulgate a system of reporting instances or allegations of forensic misconduct, negligence, or other serious error regarding analysis of forensic evidence in the state, and require employees of all forensic laboratories and other entities performing or offering forensic analysis in the state to report instances or allegations of misconduct, negligence, or other serious forensic error to the Commission. The Commission may consider complaints from any party. B. The Commission shall investigate in a timely manner any allegations of forensic negligence, misconduct, or other serious forensic error that could affect the integrity of results of forensic analysis in the state. C. The commission shall prepare a written report regarding any investigation it undertakes under this section detailing the allegations and the Commission’s findings regarding whether negligence, misconduct, or other serious forensic error occurred, and any corrective action required of the laboratory or other entity conducting forensic analysis. All such reports shall be provided to the Governor and the Attorney General, and made available to the public. D. An investigation may include, where appropriate, retrospective reexaminations of other forensic analyses conducted by the laboratory or other entity that may involve the same kind of negligence, misconduct, or serious forensic error, and follow-up evaluations of the laboratory or entity to review implementation of corrective action. Section V. Adoption of a Forensic Science Ethical Code A. The Commission shall create an ethical code for the conduct of forensic science in [state]. The Commission shall consult with relevant experts in the creation of this code. 19 w w w . T h e J u sti c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND B. The code will be created pursuant to the goals of communicating the seriousness of the work of forensics laboratories to employees of these laboratories and of making clear the role of a forensic analyst as a neutral, objective scientist, and not as an actor on the side of the prosecution or the police. C. The code shall be distributed to each employee of each laboratory or entity conducting or offering forensic testing, examinations, or analysis in [state]. Section VI. Standards and Regulation A. The Commission shall, by rule, adopt operational, training, administrative, and scientific standards and regulations for forensic laboratories and other entities performing or offering forensic analysis in the state. B. The standards and regulations shall be designed to increase and maintain the objectivity, reliability, efficiency, and accuracy of forensic laboratories, and ensure that forensic analyses are performed in accordance with the highest scientific standards practicable. C. In determining standards and requirements pursuant to this section, the Commission shall evaluate other existing standards and systems of accreditation for forensic laboratories. The commission may decide to incorporate accreditation through an approved private system to satisfy some requirements it adopts; however, the Commission shall not be bound by existing private accreditation systems, and shall supplement them as necessary with its own programs to meet the Commission’s standards consistent with this Act. D. The standards and regulations that shall be adopted and enforced by the Commission shall, at a minimum, require: 1. Minimum qualifications for forensic laboratory directors, analysts, examiners, technicians, and other such personnel as the Commission may determine to be necessary and appropriate; 2. Adoption and enforcement of certification and continuing education requirements for all forensic analysts, examiners, and technicians for each of the forensic sub-disciplines; 3. Satisfactory training programs for employees at all levels, including training on ethics and possible sources of error, and the role of forensics in causing and exposing wrongful convictions in the past; 4. Comprehensive quality control and quality assurance protocols, a method validation procedure, and a corrective action and remedial program; 20 w w w . T h e J u sti c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND 5. Routine internal and external proficiency testing of all laboratory personnel involved in forensic analysis, which shall include blind external proficiency testing requirements, and definition of satisfactory performance on such testing; 6. Internal disciplinary procedures for violations of the Commission’s ethical code, created pursuant to this Act; 7. Internal structures and protocols to regulate the flow of information between forensic examiners and persons requesting forensic services, in order to minimize the potential effects of extraneous information and influences that may contribute to inadvertent bias in the processing or interpretation of evidence, or in the presentation of testimony; 8. Protocols for providing appropriate and equitable access to law enforcement, prosecutors, and defense counsel not inconsistent with paragraph D7 above, and keeping appropriate records of such contacts; 9. Protocols for documenting forensic tests, examinations, and analyses, and for archiving reports, bench notes, and other important documentation, and for appropriate disclosure of such information. Section VII. Licensure A. The Commission shall by rule establish a licensing program for laboratories or other entities performing or offering forensic laboratory tests, examinations, or analysis in the state. B. To qualify for a license, an applicant shall provide evidence to satisfy the Commission that the laboratory, facility, or entity and its personnel meet the standards and requirements of this Act and all regulations adopted under this Act. C. To assure compliance with the standards and requirements under this Act, and to make licensure determinations, the Commission shall conduct: 1. An inspection of each forensic laboratory for which a license to operate is sought; and 2. An inspection of each forensic laboratory for which a license has been issued. D. To assure compliance with the standards and requirements under this Act, the commission may conduct: 1. A compliance investigation; and 2. A validation survey of an approved forensic laboratory. 21 w w w . T h e J u sti c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND E. Laboratories or other entities licensed or seeking a license under this Act shall permit the Forensic Science Commissioners and their designees to conduct inspections of facilities and records at any time. F. The Commission shall grant licenses to laboratories and other entities performing or offering forensic analysis in the state that will designate the categories of tests, examinations, or analyses that may be offered or performed by the laboratory. G. Effective two years from passage of this Act, an entity shall hold a license issued by the Commission before that entity may offer or perform forensic laboratory tests, examinations, or analysis in the state. A forensic laboratory may not operate in a manner not designated by its license. H. To qualify for a license, forensic laboratories must be fully independent of state and local police and prosecutorial agencies. The Commission may grant limited, temporary waivers of this requirement if a unit of local government that currently provides forensic services under the auspices of a law enforcement or prosecutorial agency provides a plan acceptable to the Commission for transitioning the forensic services to an agency separate from law enforcement or prosecutorial agencies. I. The approval of a forensic laboratory may be revoked, suspended, or otherwise limited, upon a determination by the Commission that the laboratory or one or more persons in its employ: 1. Is guilty of misrepresentation in obtaining a forensic laboratory accreditation; 2. Rendered a report on laboratory work actually performed in another forensic laboratory without disclosing the fact that the examination or procedure was performed by such other forensic laboratory; 3. Showed a pattern of excessive errors in the performance of forensic laboratory examination procedures; 4. Failed to file any report required to be submitted pursuant to this Act or the rules and regulations promulgated pursuant thereto; or 5. Violated in a material respect any provision of this Act or the rules and regulations promulgated pursuant thereto. J. No forensic laboratory approval shall be revoked, suspended, or otherwise limited without a hearing. The Commission shall serve written notice of the alleged violation, together with written notice of the time and place of the hearing, which notice shall be mailed by certified mail to the holder of the forensic laboratory approval at the address of such holder at least twenty-one days prior to the date fixed for such hearing. An approved laboratory may file a written answer to the charges with the Commission, not less than five days prior to the hearing. 22 w w w . T h e J u sti c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Section VIII. Applicability This Act shall not apply to a laboratory operated by any agency of the federal government, or to any forensic test performed by any such federal laboratory. Section IX. Availability to Public A. Forensic laboratory deficiency statements, plans of correction, laboratory audits, and accreditation reports are public documents. B. A forensic laboratory shall make discrepancy logs, contamination records, and test results available to the public within thirty days of a written request. Section X. Independence of State Forensic Laboratories A. There is hereby created the Department of Forensic Services, an independent agency of state government. B. The Forensic Science Oversight Commission shall by a majority vote appoint the Director of the [State] Department of Forensic Services. C. The Director shall be a scientist with a PhD in life or physical sciences, or be a medical doctor, and have substantial experience in academic, government, industrial, research, or clinical laboratory operations. The Director shall not have been employed previously by a law enforcement, prosecutorial, or public defender agency. D. The Director shall serve at the pleasure of the Forensic Science Commission. The Director shall hire such personnel as are necessary to carry out the operations of the Department with the approval of the Forensic Science Commission. E. The Department of Forensic Services shall operate forensic laboratories and conduct forensic analyses of evidence for law enforcement agencies in [state], and, upon request, for defense counsel, in connection with the investigation and prosecution of crimes in [state]. F. Notwithstanding any other law to the contrary, all functions related to forensic laboratory testing by other agencies of state government shall instead be performed by the Department of Forensic Services, and the Director shall enter into a cooperative agreement with any department of state government currently providing forensic laboratory services to transfer appropriate assets within one year of the effective date of this Act. G. Nothing in this section shall be construed to limit a criminal defendant’s due process rights to engage independent forensic experts not employed by or under contract with the Department of Forensic Services. 23 w w w . T h e J u sti c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Literature Cooley, Craig M. “Reforming the Forensic Community to Avert the Ultimate Injustice.” Stanford Law and Policy Review 15 (2004): 381-446. SUGGESTED READINGS The following materials are suggested reading for individuals interested in enhancing the reliability of forensic science. DiFonzo, J. Herbie. “The Crimes of Crime Labs.” Hofstra Law Review 34 (Fall 2005): 1-11. Cooley, Craig M. “Reforming the Forensic Community to Avert the Ultimate Injustice.” Stanford Law and Policy Review 15 (2004): 381-446. Epstein, Robert. “Fingerprints Meet Daubert: The Myth of Fingerprint ‘Science’ is Revealed.” Southern California Law Review 75 (March 2002): 605-657. DiFonzo, J. Herbie. “The Crimes of Crime Labs.” Hofstra Law Review 34 (Fall 2005): 1-11. Garrett, Brandon L. “Judging Innocence.” Columbia Law Review 108 (January 2008): 55-142. Risinger, D. Michael, Michael J. Saks, William C. Thompson, and Robert Rosenthal. “The Daubert/Kumho Implications of Observer Effects in Forensic Science.” California Law Review 90 (January 2002): 1-56. Giannelli, Paul C. “The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Laboratories.” Virginia Journal of Social Policy and the Law 4 (Winter 1997): 539-478. SELECTED BIBLIOGRAPHY The following listing includes some of the key source material used in developing the content of this policy review. While by no means an exhaustive list of the sources consulted, it is intended as a convenience for those wishing to engage in further study of the topic of forensic science. Giannelli, Paul C. “Regulating Crime Laboratories: The Impact of DNA Evidence.” Journal of Law and Policy 15 (2007): 59-92. Giannelli, Paul C. “Wrongful Convictions and Forensic Science: The Need to Regulate Crime Labs.” North Carolina Law Review 86 (December 2007): 163-235. 1. Journals and Law Reviews Hansen, Mark. “The Uncertain Science of Evidence: Some Testimony from Expert Witnesses in Criminal Trials is Having Trouble Standing up to Tougher Scrutiny from the Courts.” ABA Journal 91 (July 2005): 48-53. Benedict, Nathan. “Fingerprints and the Daubert Standard for Admission of Scientific Evidence: Why Fingerprints Fail and a Proposed Remedy.” Arizona Law Review 46 (Fall 2004): 519-549. Jonakait, Randolph N. “Forensic Science: The Need for Regulation.” Harvard Journal of Law and Technology 4 (Spring 1991): 109-91. Bieber, Frederick R., Craig M. Cooley, Jeffrey J. Pokorak, and Carl M. Selavka. “Panel Three— The Role of Scientific Evidence.” Indiana Law Journal 80 (Winter 2005): 69-84. Koerner, Brendan I. “Under the Microscope.” Legal Affairs (July/August 2002): 35-38. Cole, Simon A. “Grandfathering Evidence: Fingerprint Admissibility Rulings from Jennings to Llera Plaza and Back Again.” American Criminal Law Review 41 (Summer 2004): 1189-1276. Moenssens, Andre A. “Novel Scientific Evidence in Criminal Cases: Some Words of Caution.” Journal of Criminal Law and Criminology 84 (Spring 1993): 1-21. Cole, Simon A. “The Prevalence and Potential Causes of Wrongful Conviction by Fingerprint Evidence.” Golden Gate University Law Review 37 (Fall 2006): 39-105. Otero, Ana M. “Tinkering with the Machinery of Death in Texas: A Chronicle of Unbridled Injustice and Abuse.” George Mason University Civil Rights Law Journal 16 (Spring 2006): 183-269. 24 w w w . T h e J u sti c e P r o j e c t. o r g THE JUSTICE PROJECT Risinger, D. Michael, Michael J. Saks, William C. Thompson, and Robert Rosenthal. “The Daubert/Kumho Implications of Observer Effects in Forensic Science.” California Law Review 90 (January 2002): 1-56. EDUCATION FUND The Constitution Project. Mandatory Justice: The Death Penalty Revisited. The Constitution Project, 2001. Illinois Commission on Capital Punishment. Report of the Former Governor’s Commission on Capital Punishment. Illinois Commission on Capital Punishment, 2002. http://www.idoc.state.il.us/ ccp/index.html (accessed June 23, 2008). Saks, Michael J. “Banishing Ipse Dixit: The Impact of Kumho Tire on Forensic Identification Science.” Washington and Lee Law Review 57 (2000): 879-900. Oklahoma District Attorneys Council. Oklahoma’s State Plan for the Improvement of Forensic Science and Medical Examiner Services. http://www.ok.gov/ dac/documents/NFSIA State Plan.pdf (accessed June 23, 2008). Saks, Michael J. and Jonathan J. Koehler. “The Coming Paradigm Shift in Forensic Identification Science.” Science no. 309 (August 2005): 892-95. Scheck, Barry C. “The Need for Independent Forensic Audits Now.” Champion 28 (September/ October 2004): 4. Texas House of Representatives, House Research Organization. Should Texas Do More to Regulate Crime Labs? House Research Organization, 2004. http://www.hro.house.state.tx.us/focus/crime_ lab79-2.pdf (accessed June 23, 2008). Thompson, William C. “Tarnish on the ‘Gold Standard:’ Understanding Recent Problems in Forensic DNA Testing.” Champion 30 (January/ February 2006): 10-15. U.S. Department of Justice, National Institute of Justice. Status and Needs of Forensic Science Service Providers: A Report to Congress. Washington, DC: GPO, 2006. Thompson, William C. “Turning a Blind Eye to Misleading Scientific Testimony: Failure of Procedural Safeguards in a Capital Case.” Bepress Legal Series Working Paper 1781 (2006). http://law.bepress.com/expresso/eps/1781 (accessed June 23, 2008). U.S. Department of Justice, Office of the Inspector General. The FBI DNA Laboratory: A Review of Protocol and Practice Vulnerabilities. Washington, DC: GPO, 2004. 2. Commission and Association Reports 3. Statistical Studies American Bar Association. Achieving Justice: Freeing the Innocent, Convicting the Guilty: Report of the ABA Criminal Justice Section’s Ad Hoc Innocence Committee to Ensure the Integrity of the Criminal Process. American Bar Association, 2006. U.S. Department of Justice. “Census of Publicly Funded Forensic Laboratories.” Bureau of Justice Statistics Bulletin. Washington, DC: GPO, February 2005. American Bar Association. Evaluating Fairness and Accuracy in State Death Penalty Systems: The Georgia Death Penalty Assessment Report. American Bar Association, 2006. U.S. Department of Justice. “50 Largest Crime Labs, 2002.” Bureau of Justice Statistics Fact Sheet. Washington, DC: GPO, September 2004. U.S. Department of Justice. “Survey of DNA Crime Laboratories, 2001.” Bureau of Justice Statistics Bulletin. Washington, DC: GPO, January 2002. California Commission on the Fair Administration of Justice. Report and Recommendations Regarding Forensic Science Evidence. California Commission on the Fair Administration of Justice, 2007. http://www.ccfaj.org/news.html (accessed June 23, 2008). 25 w w w . T h e J u sti c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Endnotes 1 28 Michael Bromwich, Final Report of the Independent Investigator for the Houston Police Department Crime Laboratory and Property Room (2007). 29 Id. at 114. 30 One recent case, reported on October 3, 2007, involves inmate Ronald Taylor. An Houston Police Department analyst had testified at his original trial that no semen was present at the crime scene. Recent tests, however, have shown that testimony to be false. The semen at the scene matches the DNA of a convicted felon already in jail. Mr. Taylor was exonerated in January of 2008. 31 Risinger, Saks, Thompson, and Rosenthal, supra note 23, at 9 and 51. 32 Dror and Charlton, supra note 24. 33 Id. 34 This recommendation comes largely from Risinger, Saks, Thompson and Rosenthal, supra note 23 at 46. 35 Giannelli, supra note 3, at 469-71. Virginia and Arkansas are notable exceptions. 36 See Andre A. Moenssens, “Novel Scientific Evidence in Criminal Cases: Some Words of Caution,” 84 J. Crim. L. & Criminology 1 (1993) (discussing pro-police and pro-prosecution biases); Risinger, Saks, Thompson, and Rosenthal, supra note 23, at 18-19 (discussing “role” effects and inadvertent bias). 37 See generally Risinger, Saks, Thompson, and Rosenthal, supra note 23. 38 Illinois Governor’s Commission on Capital Punishment, Report of Governor’s Commission on Capital Punishment 53 (2002). 39 Belinda Luscombe, When the Evidence Lies, Time, May 21, 2000, at 38. 40 Md. Code Ann., Health-Gen § 17-2A-02 (West, Westlaw through all chapters of the 2008 Regular Session of the General Assembly effective through June 1, 2008). Crime laboratories in Maryland are operated by law enforcement, but are regulated and licensed by the Secretary of the Department of Health and Mental Hygiene. Starting in 2012, Maryland will require all labs to have a license to perform forensic analysis. Md. Code Ann., Health-Gen § 17-2A-04 (West, Westlaw through all chapters of the 2008 Regular Session of the General Assembly effective through June 1, 2008). 41 Ark. Code Ann. § 12-12-304 (West, Westlaw through end of the 2008 First Ex.Sess., including changes made by the Arkansas Code Revision Commission received through March 26, 2008). 42 Va. Code Ann. § 9.1-1100 (West, Westlaw through End of 2007 Reg. Sess. and includes 2008 Reg. Sess. c. 1, 2, 8, 21, 49, 51, 56, 57 and 72). 43 Office of the Inspector General, U.S. Department of Justice, The Fbi Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases (1997). 44 The American Bar Association endorses such standards in Achieving Justice: Freeing the Innocent, Convicting the Guilty, 2006 A.B.A. Sec. Crim. Just. L. Rep. 56. The recommendations in this policy review in this area are largely adopted from the ABA. 45 Randolph N. Jonakait, Forensic Science: The Need for Regulation, 4 Harv. J.Law & Tec 130 (Spring 1991). 46 Moenssens, supra note 36, at 6. 47 Id. 48 National Institute of Justice, U.S. Department of Justice, Status and Needs of Forensic Science Service Providers: A Report to Congress 19 (2006). 49 Cooley, supra note 4, at 418-21. 50 National Institute of Justice, supra note 48, at 12. 51 Michael J. Saks and Jonathan J. Koehler, The Coming Paradigm Shift in Forensic Identification Science, Science, Aug. 5, 2005, at 892-95. 52 Bromwich, supra note 28. 53 Paul Coverdell National Forensic Sciences Improvement Act of 2000, Pub. L. No. 106-561, 114 Stat. 2787 (amended 2002). 54 See Jane Campbell Moriarty and Michael J. Saks, Forensic Science: Grand Goals, Tragic Flaws, and Judicial Gatekeeping, 44 No. 4 Judges Journal 16 (Fall 2005). 55 Moenssens, supra note 36, at 7. Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 60 (2008). Garrett, supra note 1, at 76. 3 Paul C. Giannelli, The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Laboratories, 4 Va. J. Soc. Pol’y & L. 439, 442 (1997). 4 Craig M. Cooley, Reforming the Forensic Community to Avert the Ultimate Injustice, 15 Stan. L. & Pol’y Rev. 381, 401 (2004). 5 Id. at 402. 6 Garrett, supra note 1, at 60. 7 Matter of W.Va. State Police Crime Lab, 438 S.E.2d 501, 514-6 (1993). 8 Simon A. Cole, It’s the Testimony, Stupid, National Law Journal, Dec. 10, 2007. 9 John Solomon, FBI’s Forensic Test Full of Holes, Wash. Post, Nov. 18, 2007. 10 Id. 11 Cole, supra note 8. 12 John Solomon, Silent Injustice Question and Answer Session, Wash. Post, Nov. 19, 2007, http://www.washingtonpost.com/wp-dyn/content/discussion/ 2007/11/15/DI2007111501575.html. 13 Id. 14 Randolph N. Jonakait, Forensic Science: The Need for Regulation, 4 Harv. J. Law & Tec 109 (Spring 1991) (includes information on proficiency tests, and the disturbing performance of laboratories on these tests), citing L.C. LaMotte, Jr, G.O. Guerrant, D.S. Lewis, C.T. Hall, Comparison of Laboratory Performance with Blind and Mail-Distributed Proficiency Testing Samples, 92 Pub. Health Rep. 554 (1977). 15 Id. 16 Fred Zain falsified test results in over one hundred cases throughout the 1980s. Despite serious questions about his work, he was allowed to continue working, and was even hired at a new position in Texas, until he was finally indicted in 1994. He went to trial, but was never convicted. See Giannelli, supra note 3, at 443-9. 17 Connie Schultz, Another Slap in the Face of Justice, Plain Dealer, Sep. 2, 2004. See also The Innocence Project, DNA Proves a Notorious Analyst Engaged in Fraud and Misconduct Leading to Two More Wrongful Convictions, Innocence Project Says,” http://www.innocenceproject.org/Content/212.php. 18 See generally Cooley, supra note 4, 395-416 (discussing the relationship of laboratory misconduct to wrongful convictions); Id. at 418-433 (discussing the need for improvements to forensic science). See also Risinger, Saks, Thompson, and Rosenthal, infra note 23, for discussion on the need for internal regulation for forensics laboratories. 19 Justice for All Act of 2004, Pub. L. No. 108-405 § 311, 118 Stat. 2260. (2004). 20 Nebraska and Oklahoma all require ASCLD/LAB accreditation by statute. Many other states require ASCLD/LAB accreditation in practice or by rule. 21 See American Society of Crime Laboratory Directors Laboratory Accreditation Board, 2008 Manual (2008). While ASCLD/LAB has instituted optional blind proficiency testing, even their optional standard is quite loose. It demands only that a laboratory perform one test annually for at least one half of the forensic disciplines in which the laboratory provides services. 22 Studies of regulated and unregulated clinical laboratories are instructive on this issue. Studies have shown that regulated clinical labs perform work of a significantly higher quality than do their unregulated counterparts. See H.R. Rep. No. 100-899, at 13-4 (1988), reprinted in 1988 U.S.C.C.A.N. 3828, 3833-5. See also Jonakait, infra note 45, at 172-78. 23 D. Michael Risinger, Michael J. Saks, William C. Thompson, and Robert Rosenthal, The Daubert/Kumho Implications of Observer Effects in Forensic Science, 90 Cal. L. Rev. 1, 6 (2002). 24 See Itol E. Dror and David Charlton, Why Experts Make Errors, 56 Journal of Forensic Identification 600 (2006). This finding is especially troubling in light of the fact that these analysts had previously identified the fingerprints accurately in situations without biasing contextual information. See the box on page 6 for more information. 25 Risinger, Saks, Thompson, and Rosenthal, supra note 23, at 29. 26 Id. 27 See Discovery Channel, FBI Files: The Predator, broadcast Nov. 29, 2000, cited in id. at 36. 2 26 w w w . T h e J u sti c e P r o j e c t. o r g THE JUSTICE PROJECT 56 Joseph Peterson, John Ryan, Pauline Houlden, and Steven Mahajlovic, The Uses and Effects of Forensic Science in the Adjudication of Felony Cases, J. Forensic Sci. 1730, 1748 (1987), cited in Jonakait, supra note 8, at 178. 57 Frye v. United States, 293 F. 1013 (App. D.C. 1923). 58 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 585 (1993), citing Frye v. United States, 293 F. 1013 (App. D.C. 1923). 59 Daubert, 509 U.S. 579, 597 (1993). 60 Fed. R. Evid. 702. 61 David Faigman et al., Modern Scientific Evidence: Forensics (West Group 2006 Student ed.). 62 Thomas Bohan, Scientific Evidence and Forensic Science Since Daubert: Maine decides to sit out on the dance, 56 Me. L. Rev. 101, 112 (2004). 63 D. Michael Risinger, Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left on the Dock?, 64 Alb. L. Rev. 99, 100 (2000). 64 Id. at 143. 65 For Wisconsin, the admissibility test is spelled out in State v. Peters, 192 Wis. 2d 674, 534 N.W.2d 867 (Ct. App. 1995). For Virginia, the test is spelled out in Spencer v. Com., 240 Va. 78, 393 S.E.2d 609 (1990). Georgia admissibility standards are governed by Ga. Code Ann. § 24967. The admissibility standard in Utah was originally explained in Phillips By and Through Utah State Dept. of Social Services v. Jackson, 615 P.2d 1228 (Utah 1980). 66 Telephone Interview with Michael J. Saks, Professor of Law and Psychology, Arizona State University (Jul. 20, 2007). 67 Bohan, supra note 62, at 115. 68 Kumho Tire Co. Ltd. v. Carmichael 526 U.S. 137 (1999). 69 Id. at 149. 70 Saks, supra note 66. 71 Moriarty and Saks, supra note 54, at 29. 72 Frontline, Ron Williamson, Frontline: Burden of Innocence, http:// www.pbs.org/wgbh/pages/frontline/shows/burden/profiles/williamson.html. 73 Williamson v. Reynolds, 904 F.Supp. 1529, 1553 (E.D. Okla. 1995). 74 Id. at 1554. 75 Knoll v. State, 12 N.W. 369 (Wis. 1882). 76 Id. at 371-72. 77 Williamson v. Reynolds, at 1556. Emphasis original. 78 Id. 79 Id. at 1560-61. 80 Id. at 1560. 81 Frontline, Dennis Fritz, Frontline: Burden of Innocence, http://www.pbs. org/wgbh/pages/frontline/shows/burden/profiles/fritz.html. 82 Williamson v. Reynolds, at 1549. 83 People v. Wardell, 595 N.E.2d 1148, 1151-52 (Ill. App. Ct. 1992). 84 Id. at 1150-51. 85 Wardell v. City of Chicago, 75 F. Supp.2d 851, 854 n.1 (N.D. Ill. 1999). 86 Id. at 854. 87 Id. 88 Maurice Possley and Jeremy Manier, Police Crime Labs on the Hot Seat; Evidence Favoring Defendant Omitted, Chic. Trib., Oct. 9, 1998. 89 Wardell v. City of Chicago, at 854 n.1. See also Possley & Manier, Police Crime Lab on the Hot Seat. 90 Possley and Manier, supra note 88; Steve Mills and Maurice Possley, Report Alleges Crime Lab Fraud; Scientist is Accused of Providing False Testimony, Chic. Trib., Jan. 14, 2001. 91 Mills and Possley, supra note 90. 92 Id. 93 Maurice Possley and Steve Mills, Crime Lab Disorganized, Report Says; Consultant Alleges Meager Supervision, Inadequate Training, Chic. Trib., Jan. 15, 2001. 94 Id. 95 Mills and Possley, supra note 90; Open Records Request from Illinois Court of Claims, on file with the Center on Wrongful Convictions, Northwestern University School of Law. 96 Frank Main, 2 Freed by DNA to Get $45,000 Each from City, Chicago SunTimes, Mar. 23, 2003. 97 Tammy Fonce-Olivas, Juror Says Scientist Influenced Moon Case Rape Verdict, El Paso Times, Dec. 23, 2004. EDUCATION FUND 98 Tammy Fonce-Olivas, DPS Knew for 8 Years Conviction of Moon Dubious, El Paso Times, May 7, 2005; Robert Moore, DPS Held Back 30 Pages of Documents in Moon Case, El Paso Times, May 7, 2005. 99 Id. 100 Fonce-Olivas, supra note 98. 101 Id. 102 Tammy Fonce-Olivas, Evidence that Could Have Cleared Moon Wasn’t Sent, El Paso Times, Feb. 27, 2005. 103 Id. 104 Id. 105 Fonce-Olivas, supra note 98; Tammy Fonce-Olivas, Moon Evidence Flaw Spurs State Inquiry, El Paso Times, Feb. 22, 2005. 106 Tammy Fonce-Olivas, Moon Evidence Flaw Spurs State Inquiry, El Paso Times, Feb. 22, 2005. 107 Steve McVicker, In Time for Christmas: Freedom After 16 Years; Lawyers for a Man Wrongly Sent to Prison Say DNA Cleared Him in November 2002, The Houston Chronicle, Dec. 21, 2004. 108 Md. Code Ann., Health-Gen § 17-2A (West, Westlaw through all chapters of the 2008 Regular Session of the General Assembly effective through June 1, 2008). 109 Mixed Results Mark Maryland’s Session’ End, The Daily Record, Apr. 13, 2007. 110 Md. Code Ann., Health-Gen § 17-2A-02 (West, Westlaw through all chapters of the 2008 Regular Session of the General Assembly effective through June 1, 2008); Md. Code. Ann., Health-Gen § 17-2A-03 (West, Westlaw through all chapters of the 2008 Regular Session of the General Assembly effective through June 1, 2008). 111 N.Y. Exec. Law § 995 (West, Westlaw through L.2008, chapters 1 to 91 and 93 to 96). 112 Telephone Interview with John Hicks, Director of the Office of Forensic Services in New York State (Oct. 24, 2007). 113 N.Y. Exec. Law § 995-f (West, Westlaw through L.2008, chapters 1 to 91 and 93 to 96). 114 Rome Khanna, Texas May Find a Model in Crime Labs Elsewhere; Oversight Panel Likely to Top List of Reforms as Legislators Learn from Other Systems, The Houston Chronicle, Feb. 28, 2005. 115 Hicks, supra note 112. 116 Tex. Code Crim. Proc. Ann. art. 38.35(d)(1) (West, Westlaw through the end of the 2007 Regular Session of the 80th Legislature). 117 Texas House of Representatives Research Organization, Should Texas Do More to Regulate Crime Labs? (Dec. 20, 2004). 118 Tex. Code. Crim. Proc. Ann. art. 38.01 (West, Westlaw through the end of the 2007 Regular Session of the 80th Legislature). 119 Garrett, supra note 1, at 76. 120 Id. 121 Richard Willing, Errors Prompt States to Watch Over Crime Labs, USA Today, Mar. 31, 2006. 122 Ruth Teichroeb, They Sit in Prison—but Crime Lab Tests are Flawed, Seattle Post-Intelligencer, Mar. 13, 2004. 123 Ruth Teichroeb, Call for a Review of State Crime Labs; Legislators Say They’ll Take Up Issue in Coming Session, Seattle Post-Intelligencer, Sep. 14, 2004. 124 Khanna, supra note 114. 125 Id. 126 Steve Mills, Top Lab Repeatedly Botched DNA Tests; Audit: Errors Pass Reviews in Virginia Death Row Case, Chic. Trib., May 8, 2005. 127 Steve Mills, Flynn McRoberts, and Maurice Possley, When Labs Falter, Defendants Pay, Chic. Trib., Oct. 20, 2004. 128 Id. 129 Mark Hansen, The Uncertain Science of Evidence: Some Testimony From Expert Witnesses in Criminal Trials is Having Trouble Standing Up to Tougher Scrutiny From the Courts, 91 ABA Journal 48 (July 2005). 130 Portions of this model policy have been developed from N.Y. Exec. Law § 995 (West, Westlaw through L.2008, chapters 1 to 91) and from Md. Code Ann., Health-Gen § 17-2A (West, Westlaw through all chapters of the 2008 Regular Session of the General Assembly effective through June 1, 2008). 27 w w w . T h e J u sti c e P r o j e c t. o r g THE JUSTICE PROJECT EDUCATION FUND Working to Increase Fairness and Accuracy in the Criminal Justice System aBOUT ThE jUSTICE PROjECT The.Justice.Project.is.comprised.of.two. nonpartisan.organizations.dedicated.to.fighting. injustice.and.to.creating.a.more.humane.and. just.world..The.Justice.Project,.Inc.,.which. lobbies.for.reform,.and.The.Justice.Project. education.Fund,.which.increases.public. awareness.of.needed.reforms,.work.together. on.the.campaign.for.criminal.Justice.reform.to. reaffirm.America’s.core.commitment.to.fairness. and.accuracy.by.designing.and.implementing. national.and.state-based.campaigns.to.advance. reforms.that.address.significant.flaws.in.the. American.criminal.justice.system,.with.particular. focus.on.the.capital.punishment.system. . ThE jUSTICE PROjECT STaFF John F. Terzano President Joyce A. McGee executive.Director Robert L. Schiffer executive.Vice.President Kirk Noble Bloodsworth Program.officer Jeff Miller Director.of.communications Jane Ryan Director.of.Development Edwin Colfax Director.of.State.campaigns Rosa Maldonado Director.of.Finance.and.Administration Daniel Aaron Weir Director.of.National.campaigns Michelle Strikowsky communications.coordinator Leah Lavin Development.Associate Joseph House communications/Development.Associate Lauren Brice office.Manager For.information.on.ordering.additional. copies.of.this.policy.review,.contact. The.Justice.Project.at.(202).638-5855. email@example.com 1025.Vermont.Avenue,.Nw,.Third.Floor washington,.Dc.20005 (202).638-5855.•.Fax.(202).638-6056 www.thejusticeproject.org ©2008.The.Justice.Project.—.All.rights.reserved. NaTIONaL agENda FOR REFORM The Justice Project (TJP) has developed a national program of initiatives designed to address and affect the policies and procedures that perpetuate errors and contribute to the conviction and incarceration of innocent people, especially within the death penalty system. As such, TJP advocates for 1) improvements in eyewitness identification procedures; 2) electronic recording of custodial interrogations; 3) higher standards for admitting snitch or accomplice testimony at trial; 4) expanded discovery in criminal cases; 5) improvements in forensic testing procedures; 6) greater access to post-conviction DNA testing; 7) proper standards for the appointment and performance of counsel in capital cases; and 8) safeguards against prosecutorial misconduct. As part of its efforts to increase fairness and accuracy in the criminal justice system, TJP is developing comprehensive policy reviews on each of the eight reform initiatives outlined above. The policy reviews are designed to bridge the education gap and provide the necessary information with which policymakers, legal and law enforcement practitioners, advocates, and other stakeholders learn about the best practices within these reform areas, the reasoning behind small yet important changes in procedure, their practical effect, and the costs and benefits of implementation. For more information, please visit www.thejusticeproject.org. aCKNOWLEdgEMENTS The Justice Project would like express special thanks to the following people for their contribution in developing this policy review: Edward T. Blake, ForensicScienceAssociates Michael Bromwich, Fried,Frank,Harris,Shriver&JacobsonLLP Paul C. Giannelli, CaseWesternReserveUniversity SchoolofLaw John Hicks, NewYorkStateDivisionofForensicServices Roger Koppl, FairleighDickinsonUniversity D. Michael Risinger, SetonHallLawSchool Michael J. Saks, ArizonaStateUniversity,SandraDay O’ConnorCollegeofLaw William Thompson, UniversityofCalifornia-Irvine SchoolofSocialEcology The Justice Project’s former and current interns: Megha Desai, Rebecca Estes, Stephanie Gladney, Liz Gottmer, Dardi N. Harrison, Delia Herrin, Abby Hexter, Alanna Holt, Eric James, Rosa Malley, Fiona McCarrick, Sarah Nash, Kate Ory, David Seitzer, and Margaret Tucker. “Law’s evolution is never done, and for every improvement made there is another reform that is overdue.” — J ustice W illiam J. B rennan , J r . The Justice Project is comprised of two nonpartisan organizations dedicated to fighting injustice and to creating a more humane and just world. The Justice Project, Inc., which lobbies for reform, and The Justice Project Education Fund, which increases public awareness of needed reforms, work together on the Campaign for Criminal Justice Reform to reaffirm America’s core commitment to fairness and accuracy by designing and implementing national and state-based campaigns to advance reforms that address significant flaws in the American criminal justice system, with particular focus on the capital punishment system. This report is made possible primarily through a grant from The Pew Charitable Trusts to The Justice Project Education Fund. The opinions expressed are those of the author(s) and do not necessarily reflect . the views of the Trusts. For additional information, questions or comments, . please contact our offices at (202) 638-5855, or email firstname.lastname@example.org. THE JUSTICE PROJECT EDUCATION FUND 1025 Vermont Avenue, NW • Third Floor • Washington, DC 20005. (202) 638-5855 • Fax (202) 638-6056 • www.thejusticeproject.org