|
|
THE NEED FOR INTEGRATED GOVERNANCE
61
or crime scene search officers who go onsite to take photographs and locate,
preserve, label, and gather physical evidence.
CASE BACKLOGS
According to the 2005 BJS data, the Nation’s 389 crime laboratories
received an estimated 2.7 million new cases during 2005. Almost half were
submitted to state laboratories. Laboratories serving local jurisdictions
received about 1.3 million cases in 2005, including 727,000 cases received
by county laboratories and 566,000 by municipal laboratories.
An estimated 359,000 cases were backlogged (not completed within 30
days) at the end of 2005, compared to 287,000 at yearend 2002. This
represents a 24 percent increase in backlogged cases between 2002 and
2005. State laboratories accounted for more than half of the backlog in
both years. Among the 288 laboratories that reported this information,
the median number of cases received in 2005 was about 4,100. Overall,
laboratories ended the year with a median backlog of about 400 cases.
Six percent of laboratories that received cases in 2005 reported having no
backlog at yearend.18
In 2005, federal laboratories received the fewest cases.
Fifty-one percent of the laboratories reported outsourcing one or more
types of forensic services to private laboratories in 2005, primarily DNA
casework, toxicology, Combined DNA Index System (CODIS) samples, and
controlled substances.
In a communication with the committee, Los Angeles County Sheriff’s
Department Crime Laboratory Director Barry Fisher warned that to man-
age backlogs, laboratories triage cases:
Murders, rapes, aggravated assaults and the like have priority, as do cases
going to court, cases where a suspect is being held on an arrest warrant,
highly publicized cases, etc. Property crimes, such as burglaries, are often
far down the list. This makes the likelihood of examining evidence from
property crime cases unlikely. Oddly, the police and prosecutors are rarely
consulted about how priorities are determined. The use of triage is the lab’s
best effort to manage its own scarce resources. Another factor at play in
case management is that the “squeaky wheel gets the grease.” This means
that a persistent investigator who calls the lab often enough will get his
case done more quickly than the investigator who just sends the case down
to the lab expecting that it will be done.19
18 Ibid., pp. 3, 4. The committee notes that the 30-day turnaround metric is an arbitrary
metric useful for comparative purposes only.
19 Letter to the committee from B.A.J. Fisher. June 12, 2007.
62
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES
Fisher also cautioned that backlog data are not entirely reliable, saying
that one of the reasons for the lack of data is that laboratories count back-
logs, case submissions, tests, output, and outcomes differently. Additionally,
many laboratories lack automated information management systems to
“capture the very data that might support their case for more assistance.”20
Finally, it is difficult to track cases for which forensic work has moved all
the way through the criminal justice system: Police, prosecutors, and foren-
sic laboratories use different tracking systems.
NIJ’S COVERDELL FORENSIC SCIENCE
IMPROVEMENT GRANT PROGRAM
Through the Paul Coverdell National Forensic Science Improvement
Act (P.L. 106-561), the Justice Department operates the Paul Coverdell
Forensic Science Improvement Grants Program (the Coverdell program),
which awards grants to states and units of local government to help im-
prove the quality and timeliness of forensic science and medical examiner
services.21 The program provides funding for expenses related to facilities,
personnel, equipment, computerization, supplies, accreditation, certifica-
tion, and education and training. In 2004, the Justice for All Act (P.L.
108-405) expanded the Coverdell program, with the aim of reducing the
backlog.
A state or unit of local government that receives a Coverdell grant must
use the grant for one or more of three purposes:
(1) To carry out all or a substantial part of a program intended to
improve the quality and timeliness of forensic science or medical
examiner services in the state, including those services provided by
laboratories operated by the state and those operated by units of
local government within the state.
(2) To eliminate a backlog in the analysis of forensic science evidence,
including, among other things, a backlog with respect to firearms
examination, latent prints, toxicology, controlled substances, fo-
rensic pathology, questioned documents, and trace evidence.
(3) To train, assist, and employ forensic laboratory personnel as needed
to eliminate such a backlog.22
20 Ibid.
21 P.L. 106-561 (December 21, 2000). An Act to improve the quality, timeliness, and cred-
ibility of forensic science services for criminal justice purposes and for other purposes. Cited
as the Paul Coverdell National Forensic Sciences Improvement Act.
THE NEED FOR INTEGRATED GOVERNANCE
63
The expectation for those receiving grants is “demonstrated improve-
ment over current operations in the quality and/or timeliness of forensic
science or medical examiner services provided in the state, including ser-
vices provided by laboratories operated by the state and services provided
by laboratories operated by units of local government within the State.”23
The output measures for Coverdell awards are:
(1) Change in the number of days between submission of a sample to a
forensic science laboratory and delivery of test results to a request-
ing office or agency.
(2) The number of backlogged forensic cases analyzed with Coverdell
funds, if applicable to the grant.
(3) The number of forensic science or medical examiner personnel who
completed appropriate training or educational opportunities with
Coverdell funds, if applicable to the grant.24
States may be eligible for both “base” (formula) and competitive funds
from NIJ for forensic science programs. Units of local government within
states may be eligible for competitive funds and may apply directly to NIJ.
The Coverdell law (42 U.S.C. § 3797k(4)) requires that, to request a grant,
an applicant for Coverdell funds must submit:
• A certification and description regarding a plan for forensic science
laboratories.
• A certification regarding use of generally accepted laboratory
practices.
• A certification and description regarding costs of new facilities.
• A certification regarding external investigations into allegations of
serious negligence or misconduct.
Program funding was $10 million in Fiscal Year (FY) 2004, $15 mil-
lion in FY 2005, and $18.5 million in FY 2006. Funds may be used for
personnel, computerization, laboratory equipment, supplies, accreditation,
education, training, certification, or facilities.
FORENSIC SERVICES BEYOND THE
TRADITIONAL LABORATORY
Many forensic examiners do not work in a traditional crime laboratory.
Often they work within law enforcement offices in units called “identifica-
23 Ibid.
24 Ibid.
64
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES
tion units” or “fingerprint units.” For example, a 2004 study conducted
by the American Society of Crime Laboratory Directors (ASCLD) for NIJ
reported that two-thirds of fingerprint identifications take place outside
of traditional crime laboratories.25 Insufficient data are available on the
size and expertise of this population of forensic examiners who are not
employed in publicly funded forensic science laboratories. Therefore, in
2006, a survey instrument modeled after the BJS census was developed by
researchers at West Virginia University in collaboration with the Interna-
tional Association for Identification (IAI).26 Its survey was sent to 5,353 IAI
U.S. members in April 2007,27 targeting forensic scientists working outside
the crime laboratories surveyed by BJS.
Of the units responding to the IAI survey, most were publicly funded
(e.g., city, borough, village, town, county, state, or federal), with half work-
ing at the local level. Units at the city, borough, village, or town level had a
median annual budget of $168,850, compared to $387, 413 at the county
level. Half are small units, with one to five full- and part-time employees.
The units primarily conduct crime scene investigations, latent print and
10-print examinations, photography, and bloodstain pattern analyses. A
smaller number are involved in other forensic functions, such as the analysis
of digital evidence, footwear, tire track impressions, firearms, forensic art,
questioned documents, polygraph tests, and dental evidence.
For the responding units, the mean number of cases received per year
was 2,780. The mean backlog was 9.4 percent of the annual caseload, with
the backlog for latent prints being higher, at 12.3 percent of the caseload.
More than half of the units report outsourcing work, primarily firearms,
latent print, and footwear analyses. Although 69 percent of respondents
replied that they had some system for verifying results, only 15 percent are
accredited.
FEDERAL FORENSIC SCIENCE ACTIVITIES
Several federal agencies either provide support for forensic infrastruc-
ture, certification, and training, or conduct or fund forensic science in sup-
port of their missions. Brief descriptions follow.
25 American Society of Crime Laboratory Directors. 2004. 180-Day Study Report: Sta-
tus and Needs United States Crime Laboratories. Available at www.ncjrs.gov/pdffiles1/nij/
grants/213422.pdf.
26 Witt, op. cit.
27 Ibid. Of the 815 surveys returned, 308 represented responses from active forensic service
provider organizations (i.e., only 1 response per organization was included) outside of publicly
funded crime laboratories.
THE NEED FOR INTEGRATED GOVERNANCE
65
Federal Forensic Science Laboratories
The largest publicly funded forensic laboratory in the country is the
Federal Bureau of Investigation (FBI) Laboratory in Quantico, Virginia.
Other federal agencies have smaller crime laboratories, for example, the
U.S. Secret Service, the U.S. Army, the Drug Enforcement Administration,
the Bureau of Alcohol, Tobacco, Firearms, and Explosives (known as ATF),
the U.S. Postal Service, the Internal Revenue Service, and the U.S. Fish and
Wildlife Service. In addition, the Department of Commerce’s National In-
stitute of Standards and Technology (NIST) conducts research in support
of standard setting for gunshot residue analysis, trace explosives detectors,
DNA analysis, and more. Some of these efforts are described below.
The FBI Laboratory
The types of cases investigated by the FBI include terrorism, espionage,
public corruption, civil rights, criminal organizations and enterprises, white
collar crime, and violent crime. Investigative case work services include
those involving:
• chemistry
• cryptanalysis and racketeering records
• DNA analysis
• explosives
• evidence response
• firearms-toolmarks
• hazardous materials
• investigative and prosecutive graphics
• latent prints
• photographic operations and imaging services
• questioned documents
• structural design
• trace evidence
• specialty units
According to the 2005 BJS report, the FBI Laboratory had approxi-
mately 600 employees in 2005, and it partners with state and local crime
laboratories throughout the country. Its FY 2007 budget was $63 million.
The FBI Laboratory provides a full range of forensic services and handles
a large volume of fingerprint work, receiving approximately 50,000 finger-
print submissions every day. In July 1999, the FBI updated its fingerprint
databases with the Integrated Automated Fingerprint Identification System
(IAFIS). Previously, all prints arrived on paper fingerprint cards that had to
66
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES
be processed by hand. With the introduction of IAFIS, prints and pictures
can be submitted electronically.
According to the 2005 BJS census, the FBI laboratory began 2003
with an estimated backlog of 3,062 requests for forensic services. About
two-thirds of the backlog was attributable to latent print requests. During
2003, the FBI laboratory received 6,994 new requests and completed 7,403
requests. The estimated year end backlog was 2,653 requests, a 13 percent
reduction over the previous year. Latent print requests comprised half of the
year end 2003 backlog. No data were provided in the 2005 census.
By the end of the first quarter of 2004, the FBI Laboratory reported a
total backlog of 2,585 requests. This included 1,216 latent print requests, or
47 percent of the total. The FBI Laboratory reported a need for additional
equipment and 249 additional FTEs in order to have achieved a 30-day
turnaround on all 2003 requests. The cost of the additional equipment was
estimated to be $40 million. Based on starting salaries for analyst/examiners,
the estimated cost of the additional FTEs exceeds $17.5 million.
The FBI Laboratory also has working partnerships with the forensic
science community’s Scientific Working Groups (SWGs) that are tasked
with generating guidelines and standards for specific forensic disciplines
(see Chapter 7). The FBI also provides training for the forensic science com-
munity and conducts and funds research (see later discussion).
In addition, the FBI collects and maintains data and materials for mul-
tiple databases and registries (see Box 2-1). The largest is CODIS, which is
composed of three components: the forensic database, the missing persons
database, and the convicted felon database. The FBI CODIS Unit is respon-
sible for developing, providing, and supporting the CODIS Program to
federal, state, and local crime laboratories in the United States and selected
international law enforcement crime laboratories to foster the exchange and
comparison of forensic DNA evidence from violent crime investigations.
The CODIS Unit also provides administrative management and support
to the FBI for various advisory boards, Department of Justice (DOJ) grant
programs, and legislation regarding DNA.
U.S. Secret Service (Department of Homeland Security [DHS])
The U.S. Secret Service laboratory examines evidence, develops investi-
gative leads, and provides expert courtroom testimony. As part of the 1994
Crime Bill (P.L. 103-322), Congress mandated that the U.S. Secret Service
provide forensic/technical assistance in matters involving missing and ex-
ploited children. On April 30, 2003, President George W. Bush signed the
PROTECT Act of 2003 (P.L. 108-21), known as the “Amber Alert Bill,”
which gave full authorization to the U.S. Secret Service in this area. The
THE NEED FOR INTEGRATED GOVERNANCE
67
Box 2-1
FBI Databases and Reference Libraries
The CODIS Program consists of the development, enhancement, and sup-
port of software that enables forensic DNA laboratories to store, maintain, and
search DNA profiles from crime scenes, offenders, and missing persons. Support
of the CODIS software includes training for DNA analysts and help-desk services,
as well as a yearly national meeting for all CODIS administrators. The unit also
provides CODIS software to international law enforcement laboratories to assist
them in establishing a DNA database program. Forty law enforcement laboratories
in 25 countries now have the CODIS software. CODIS consists of a three-tiered
hierarchy of databases: the NDIS [National DNA Index System], the State DNA
Index System, and the Local DNA Index System. The highest level in the CODIS
hierarchy is NDIS, which contains the DNA profiles contributed by participating
federal, state, and local forensic DNA laboratories. There are more than 170 NDIS
participating sites across the United States, including the FBI Laboratory, the U.S.
Army Criminal Investigation Laboratory, and a laboratory in Puerto Rico.
The NDIS contains 6.2 million offender profiles and 233,454 forensic profiles
as of August 2008. Its operation requires determining the eligibility of samples for
the National Index in accordance with applicable federal law, developing proce-
dures for laboratories participating in the Index, and monitoring the participating
laboratories’ compliance with federal law. The CODIS Unit also provides adminis-
trative management and support for the NDIS Procedures Board and other DNA
working groups. As of August 2008, CODIS has produced more than 74,500 hits,
assisting in more than 74,700 investigations.a
The National Automotive Paint File contains entries dating as far back as the
1930s. The Paints and Polymers Subunit also serves as the U.S. repository for
the Paint Data Query database, which is a Canadian database. State and local
law enforcement agencies investigating hit-and-run homicides rely on both the
National Automotive Paint File and the Paint Data Query database.
The FBI Explosives Reference File contains several thousand standards that
help examiners identify the components and manufacturers of explosive and in-
cendiary devices. The Explosives Reference Tools database (EXPeRT) combines
the text of FBI Laboratory reports with evidentiary photographs from bombing
cases and permits the rapid retrieval of information on any aspect of the forensic
examination. The database also contains manufacturer data and open-source
literature on the construction and use of explosives and explosive devices. An
examiner can search EXPeRT, find similar devices, and identify similarities in the
components used in the construction of an improvised explosive device.8
The Reference Firearms Collection contains more than 5,500 handguns and
shoulder firearms; and the Standard Ammunition File, a collection of more than
15,000 military and commercial ammunition specimens from both domestic and
international manufacturers.
SOURCE: FBI Web site at www.fbi.gov/hq/lab/html/ipgu1.htm.
68
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES
forensic services utilized by the Secret Service include identification, forensic
automation, polygraph, questioned documents, and visual information.
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
The ATF Laboratories reside within DOJ. Currently, the ATF Labo-
ratories have more than 100 employees working in 4 laboratories in 3
cities. In FY 2005, ATF Laboratories performed more than 2,600 forensic
examinations with an authorized staff of 106 positions and a budget of
approximately $16 million.
In FY 2006, the ATF Laboratories:
• analyzed 64 samples related to alcohol and tobacco diversion;
• processed 3,086 forensic cases;
• spent 171 days providing expert testimony in the courts;
• spent 242 days at crime scenes; and
• spent 371 days providing training to federal, state, and local inves-
tigators and examiners.
A new $135 million National Laboratory Center in suburban Maryland
was opened in 2003. The National Laboratory Center contains a unique fire
testing facility, designed to support fire investigations. Each ATF Labora-
tory also has a mobile laboratory designed to support the examination of
evidence at the scene of a fire or explosion. In FY 2006, ATF established a
DNA analysis capability at the National Laboratory Center.28 The Labo-
ratories are ASCLD/Laboratory Accreditation Board (LAB) accredited in
the disciplines of trace evidence, biology (serology only), questioned docu-
ments, firearms/toolmarks, and latent prints.
In a 2006 semiannual report from the DOJ Office of the Inspector
General (OIG), the OIG’s Audit Division evaluated whether the ATF Labo-
ratories managed workloads effectively to provide timely services to ATF
field divisions. The audit report stated the following:
Our audit found that processing times have not significantly improved in
the past 4 years. Two-thirds of completed forensic examinations continued
to take more than 30 days to complete and about one-third of examina-
tions took more than 90 days.
Improvements in the timeliness of laboratory examinations have been
limited because ATF has not accomplished actions it committed to in
2001, such as increasing the number of examiner positions in the forensic
laboratories, implementing a new priority system, implementing a new
THE NEED FOR INTEGRATED GOVERNANCE
69
information management system, and significantly reducing the size of
its backlog of examination requests. Laboratory staffing generally was
adequate to manage the incoming workload, but backlogged requests
continued to interfere with the timely analysis of incoming examination
requests. The audit found that the backlog could increase as a result of
unusually resource-intensive cases. We concluded that if these conditions
are not addressed serious consequences may result, such as delays in mak-
ing arrests and bringing offenders to trial.29
Department of Defense (DOD)
DOD’s forensic requirements are growing beyond the traditional realm
of criminal investigations, casualty investigations, and medical examiner
functions toward more intelligence and counterintelligence functions. DOD’s
activities are primarily mission oriented, but they also serve specific func-
tional roles in criminal investigations. A DOD Forensic Sciences Committee
provides advice on forensic science activities across the department.
Like other crime laboratories, DOD has capabilities in most of the fo-
rensic science disciplines. Its major forensic entities include the Criminal In-
vestigation Laboratory, the Armed Forces Institute of Pathology, the Cyber
Crime Center ($20 million annually), and the Central Identification Labora-
tory ($1 million annually), all of which are ASCLD/LAB accredited.30 The
Army also maintains the Armed Forces Repository of Specimen Samples
for the Identification of Remains, with more than 5 million DNA samples
primarily from military service members. It also maintains a searchable
database of DNA profiles from detainees and known or suspected terror-
ists. The Criminal Investigation Laboratory provides worldwide forensic
laboratory services, training, and research and development (R&D) to all
DOD investigative agencies.
DOD currently is developing a “Defense Forensic Enterprise System”
to more centrally manage, integrate, and coordinate across the Services for
both criminal investigation and warfighter operations, as well as to serve
homeland security functions.31 Part of the system is the Joint Expeditionary
Forensic Facilities, which are modular by design for deployment purposes
29 Office of the Inspector General. Semiannual Report to Congress, October 1, 2005-March
31, 2006. April 8, 2006. Available at www.usdoj.gov/oig/semiannual/0605/message.htm. Also
see U.S. Department of Justice Office of the Inspector General Audit Division, Audit Report
06-15. March 2006. Follow-Up Audit of the Bureau of Alcohol, Tobacco, Firearms and Ex-
plosives Forensic Science Laboratories Workload Management.
30 L.C. Chelko, Director, U.S. Army Criminal Investigation Laboratory. Presentation to the
committee. September 21, 2007.
31 R. Tontarski, Chief, Forensic Analysis Division, CID Command, U.S. Army Criminal
Investigation Laboratory. Presentation to the committee. September 21, 2007.
70
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES
but which are also designed for expansion to full-spectrum analyses. The
Defense Forensic Network connects all DOD forensic operations virtually
and synchronizes worldwide DOD forensic operations. A Forensic Training
and Research Academy is responsible for all DOD forensic examiner train-
ing and serves as DOD’s certification authority. In addition to conducting
its own research, DOD partners with academia, industry, and other federal
agencies. It is collaborating with the National Forensic Science Technology
Center to leverage its work in deployable forensic instrumentation and
technologies and with NIJ on technology transfer strategies.
National Bioforensic Analysis Center (NBFAC), DHS
NBFAC is a component of the National Biodefense Analysis and Coun-
termeasures Center (NBACC), which is operated by a contractor on behalf
of DHS, with a proposed budget of $28.3 million for FY 2009. NBFAC and
NBACC are not federal agencies. Their prime customer for their services is
the FBI. They do not perform complete forensic analyses on evidence from
biocrimes and bioterrorism; they do perform or direct the performance (by
one or more of their affiliated laboratories) of analyses targeting biological
materials and biotoxins. NBFAC provides the laboratories and training for
FBI Laboratory examiners in several disciplines to safely and effectively
conduct their standard examinations on contaminated traditional evidence.
It is also charged with establishing and maintaining reference collections of
biological agents.32
National Counterproliferation Center
The National Counterproliferation Center, a policy and program over-
sight organization within the Office of the Director of National Intelligence,
is seeking to bring a unified, strategic perspective to microbial forensics
(bioforensics) research and development and its application to intelligence
purposes. Microbial forensics is a “developing interdisciplinary field of
microbiology devoted to the development, assessment, and validation of
methods to fully characterize microbial samples for the ultimate purpose
of high confidence comparative analysis.”33
32 J. Burans, Bioforensics Program Manager, National Bioforensics Analysis Center. Presen-
tation to the committee. September 21, 2007.
33 C.L. Cooke, Jr., Office of the Deputy Director for Strategy and Evaluation, National
Counterproliferation Center. Presentation to the committee. September 21, 2007.
THE NEED FOR INTEGRATED GOVERNANCE
71
RESEARCH FUNDING
Nearly all forensic science research funds are channeled through DOJ.
NIJ and the FBI are the two primary federal sources of funding for forensic
science research.
National Institute of Justice (NIJ)
NIJ provides the bulk of funds for research. The BJS 2002 census found
that of the 12 percent of laboratories that had resources dedicated to re-
search, the primary source of funding for this research was NIJ.
NIJ has two operating offices: (1) the Office of Research and Evaluation
develops, conducts, directs, and supervises research and evaluation activities
across a wide variety of issues and (2) the Office of Science and Technology
manages technology research and development, the development of techni-
cal standards, testing, forensic science capacity building, and technology
assistance to state and local law enforcement and corrections agencies.34
NIJ’s forensic science programs relevant to research include the President’s
DNA Initiative; General Forensics R&D; the Forensic Resource Network;
and Electronic Crime. These programs vary in their direct support of re-
search. Research decisions are managed through a peer-review process.35
Total expenditures for forensic research were $78 million in FY 2002, but
they decreased to $33 million by FY 2009. According to John Morgan,
Deputy Director, NIJ, the agency is able to fund 5 to 7 percent of the ap-
plications submitted.36 Commentators have noted that NIJ funds often are
not awarded to working members of the forensic science community.37
In 2003, the President announced a five-year, $1 billion initiative to im-
prove the use of DNA in the criminal justice system. The President’s DNA
Initiative pushed for increased funding, training, and assistance to ensure
that DNA technology “reaches its full potential to solve crimes, protect the
innocent, and identify missing persons.”38 Congress has appropriated more
than $300 million to date for the initiative, although only a small fraction
is directed toward research. Since 2003, DOJ has made grants in excess of
$26 million for new research on forensic tools and techniques,39 with grants
tending to go to population geneticists, medical geneticists, molecular biolo-
35 J. Morgan, Deputy Director National Institute of Justice, Office of Justice Programs, U.S.
Department of Justice. Presentation to the committee. January 25, 2007.
36 Ibid.
37 K. Pyrek. 2007. Forensic Science Under Siege: The Challenges of Forensic Laboratories
and the Medico-Legal Investigation System. Burlington, MA: Academic Press (Elsevier), p.
448.
38 See www.dna.gov/info/e_summary.
39 Morgan, op. cit.
72
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES
gists, technology experts, and crime laboratory personnel. The bulk of the
funding has gone to state and local law enforcement agencies to support
the examination of nearly 104,000 DNA cases from 2004 to 2007 and
2,500,000 convicted offender and arrestee samples, which will be added
to the national DNA database. More than 5,000 “hits,” or matches to
unknown profiles or other cases, have resulted from these efforts. In 2008,
NIJ expects to fund the testing of an additional 9,000 backlogged cases and
more that 834,000 backlogged convicted offender and arrestee samples.40
Under the General Forensics R&D Program, 53 awards have been
made through 2007 for the development of “tools and technologies that
will allow faster, more reliable, more robust, less costly, or less labor-in-
tensive identification, collection, preservation, and/or analysis of forensic
evidence; tools that provide a quantitative measure or statistical evaluation
of forensic comparisons; and identification or characterization of new ana-
lytes of forensic importance.”41 In FY 2007, solicitations were issued for
proposals in Research and Development on Crime Scene Tools, Techniques,
and Technologies; Research and Development on Impression Evidence;
Research and Development in the Forensic Analysis of Fire and Arson Evi-
dence; and Forensic Toxicology Research and Development.
The size of the NIJ research program warrants comparison with other
research programs. In FY 2007, NIJ awarded 21 grants for forensic re-
search and development (not including awards for DNA research) (see Box
2-2). As will be seen in Chapter 5, the number of open research questions
about the more common forensic science methods greatly exceeds 21, and
none of these open questions appear to be squarely addressed by the proj-
ects listed in Box 2-2. The 2007 NIJ awards totaled nearly $6.6 million,
with an average award size of $314,000. As a comparison, in the same
year, the National Institutes of Health awarded 37,275 research project
grants, averaging $359,000, for a total of $15 billion.42 Also in FY 2007,
the National Science Foundation made over 11,500 research project awards
for a total of $6.0 billion.43
NIJ’s Forensic Resource Network is a system of four forensic centers
whose mission is to assist state and local forensic service providers in achiev-
ing their service delivery goals through research and development, testing
and evaluation, training, technology transfer, and technology assistance.
The NIJ Electronic Crime Portfolio addresses “the practical needs of
the criminal justice community in its efforts to respond to electronic crime,
40Statement of J.S. Morgan, Deputy Director National Institute of Justice, Office of Justice
Programs, U.S. Department of Justice, before the U.S. Senate Committee on the Judiciary
concerning “Oversight of the Justice For All Act: Has the Justice Department Effectively Ad-
ministered the Bloodsworth and Coverdell DNA Grant Programs?” January 23, 2008.
41Morgan, 2007, op. cit.
THE NEED FOR INTEGRATED GOVERNANCE
73
aiding/assisting law enforcement in the discovery, analysis, presentation and
preservation of digital evidence of probative value.”44
In September 2007, NIJ announced the addition of four Technology
Centers of Excellence to serve as resources within their respective technol-
ogy focus areas by providing technology assistance to law enforcement
personnel as well as by working with technology developers and users to
test and evaluate equipment in operational environments. In addition, NIJ
set aside $5 million for grants to support the development of forensic sci-
ence standards at NIST.45
Federal Bureau of Investigation (FBI)
The FBI Laboratory also receives roughly $33 million per year for its
own research. To set priorities, the laboratory consults with its own staff
and with working-level scientists in the SWGs they support.
The FBI’s Counterterrorism and Forensic Science Research Unit “pro-
vides technical leadership/advancement of counterterrorism and forensic
sciences for the FBI as well as for state and local law enforcement agencies
through the development and validation of new technologies/techniques
by both internal and outsourced research efforts and through advanced
scientific training in specialized forensic procedures.”46 It fulfills its research
mission through two core programs.
The Research and Development Program creates and coordinates the
development of new forensic techniques, instrumentation, and protocols for
FBI Laboratory units to use in terrorism and violent crime cases. The pro-
gram focuses its efforts in the areas of DNA analysis, trace organic chemical
analysis, toxicology, explosives, fingerprints, drug and materials analysis
(e.g., paints, tapes, inks, glass, and metals), database development, anthro-
pology, microbial forensics, and field instrumentation. The committee was
told that the program publishes some of its results in scientific journals.
The Research Partnership Program transfers new forensic technologies and
procedures to case-working examiners at state and local crime laboratories
through collaborative studies and implements SWG-defined protocols and
national forensic databases. Workshops include those involving the use of
an automotive carpet fiber database, messenger RNA (mRNA) profiling
of human semen, the visualization and identification of pepper spray on
evidentiary materials, 1-step purification of DNA from different matrices,
and the permanence of friction ridge skin detail.
44 Ibid.
45 J. Morgan, Deputy Director for Science and Technology, NIJ. Presentation to the com-
mittee. January 25, 2007.
74
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES
Box 2-2
FY 2007 NIJ Awards for Forensic Science
Research and Development
Biometric Technologies
Automatic Fingerprint Matching Using Extended Feature Set, Michigan State
University, $260,038
Selective Feature-Based Quality Measure Plug-In for Iris Recognition System,
Indiana University, $84,858
Site-Adaptive Face Recognition at a Distance, General Electric Co., $496,341
Forensic DNA Research and Development
A Low-Cost Microfluidic Microarray Instrument for Typing Y-Chromosome Single
Nucleotide Polymorphisms (SNPs), Akonni Biosystems, Inc., $448,466
A Rapid, Efficient and Effective Assay to Determine Species Origin in Biological
Materials, Bode Technology Group, Inc., $170,212
DNA Profiling of the Semen Donor in Extended Interval Post-Coital Samples,
University of Central Florida, $271,504
Microfabricated Capillary Array Electrophoresis Genetic Analysis for Forensic
Short Tandem Repeat DNA Profiling, Regents of the University of
California, $592,183
National Institute of Justice Forensic DNA Research and Development, Network
Biosystems, Inc., $497,346
National Institute of Justice Forensic DNA Research and Development in
Vermont for Fiscal Year 2007,Vermont Department of Public Safety,
$112,481
Population Genetics of Single Nucleotide Polymorphisms (SNPs) for Forensic
Purposes, Yale University, $680,516
Sperm Capture Using Aptamer-Based Technology, Denver, City and County of,
$370,813
PROFESSIONAL ASSOCIATIONS
Numerous professional organizations are focused on the forensic sci-
ence disciplines (see Box 2-3). The Consortium of Forensic Science Organi-
zations, founded in 2000, includes the largest of these organizations—the
American Academy of Forensic Sciences (AAFS), ASCLD, ASCLD/LAB,
IAI, NAME, and Forensic Quality Services (FQS).
AAFS, with 6,000 members worldwide, was founded in 1948. It created
and supports the Forensic Specialties Accreditation Board, which accredits
THE NEED FOR INTEGRATED GOVERNANCE
75
Tools for Improving the Quality of Aged, Degraded, Damaged or Otherwise
Compromised DNA Evidence, Louisiana State University, $580,337
Y Chromosome Whole Genome Analysis Strategies: Improved Detection of
Male DNA, University of Central Florida, $324,705
Research and Development on Crime Scene Tools, Techniques and
Technologies
Detecting Buried Firearms Using Multiple Geophysical Technologies, University
of Central Florida, $89,584
Developing Fluorogenic Reagents for Detecting and Enhancing Bloody
Fingerprints, Portland State University, $168,904
Electronic Fingerprint Development Device “Fuma-Room,” Mountain State
University, $61,152
Investigations on the Use of Sample Matrix to Collect and Stabilize Crime
Scene Biological Evidence for Optimized Analysis and Room Temperature
Storage, California State University, Los Angeles, University Auxiliary
Services, $353,449
Rapid Visualization of Biological Fluids at Crime Scenes Using Optical
Spectroscopy, University of South Carolina Research Foundation, $382,394
Research and Development on Impression Evidence
Analysis of Footwear Impression Evidence, Research Foundation of the State
University of New York, $350,172
The Use of Infrared Imaging, a Robust Matching Engine and Associated
Algorithms to Enhance Identification of Both 2-D and 3-D Impressions:
Phase 1, SED Technology, LLC, $295,247
certification organizations.47 Membership includes physicians, attorneys,
dentists, toxicologists, physical anthropologists, document examiners, psy-
chiatrists, physicists, engineers, criminalists, educators, and others. AAFS
sponsors an annual scientific meeting, publishes the Journal of Forensic
Sciences, and promotes research, education, and training. It also operates
the Forensic Science Education Programs Accreditation Commission (see
Chapter 8 for further discussion).48
47 See www.thefasb.org.
48 B.A. Goldberger, AAFS President-Elect. Presentation to the committee. January 25,
2007.
76
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES
Box 2-3
Forensic Associations and Societies
American Academy of Forensic Sciences
American Board of Criminalistics
American Board of Forensic Anthropology
American Board of Forensic Odontology
American Board of Forensic Toxicology
American Society for Quality
American Society for Testing and Materials
American Society of Crime Laboratory Directors
American Society of Questioned Document Examiners
AOAC International
Association of Firearm & Tool Marks Examiners
Association of Forensic Quality Assurance Managers
California Association of Criminalistics
Canadian Society of Forensic Sciences
Council of Federal Forensic Crime Laboratory Directors
Forensic Science Society
International Association for Identification
International Association of Arson Investigators
International Association of Bloodstain Pattern Analysts
International Association of Coroners and Medical Examiners
International Association of Forensic Nurses
International Association of Forensic Toxicologists
Mid-Atlantic Association of Forensic Scientists
Midwestern Association of Forensic Scientists
National Association of Medical Examiners
National Center of Forensic Science
National Forensic Science Technology Center
New Jersey Association of Forensic Scientists
Northeastern Association of Forensic Scientists
Northwest Association of Forensic Scientists
Society of Forensic Toxicologists
Southern Association of Forensic Science
Southwestern Association of Forensic Scientists
Wisconsin Association for Identification
IAI was founded in 1915 and has 6,700 members worldwide. Its mem-
bers tend to be involved at the “front end” of the process—crime scene
investigation, evidence collection, and evidence preservation.49 It operates
certification programs in seven disciplines and publishes the Journal of
49 J. Polski, IAI Chief Operations Officer. Presentation to the committee. January 25,
2007.
THE NEED FOR INTEGRATED GOVERNANCE
77
Forensic Identification. The focus of its activities is pattern evidence—for
example, fingerprint, footwear, tire track, questioned documents, forensic
photography, and forensic art.
ASCLD/LAB and FQS accredit crime laboratories and are discussed in
greater detail in Chapter 7. Chapter 9 describes the activities of NAME.
CONCLUSIONS AND RECOMMENDATION
The fragmented nature of the forensic science community makes it dif-
ficult to gather data on the entire universe of forensic service entities and ac-
tivities, although efforts have been made to collect data on publicly funded
crime laboratories and nonlaboratory-based providers. For example, the
committee could find no data available on for-profit forensic service provid-
ers, other than on DNA laboratories. Thus, attempts to construct effective
policies are hampered by the lack of coherent and consistent information on
the forensic science infrastructure in the United States. However, the large
amount of information provided to the committee by people engaged in the
forensic science enterprise and by experts who have studied how well that
enterprise functions all points to a system that lacks coordination and that
is underresourced in many ways.
By using the term “underresourced,” the committee means to imply
all of its dimensions. Existing data suggest that forensic laboratories are
underresourced and understaffed, which contributes to a backlog in cases
and likely makes it difficult for laboratories to do as much as they could
to inform investigations, provide strong evidence for prosecutions, and
avoid errors that could lead to imperfect justice. But underresourced also
means that the tools of forensic science are not as strong as they could be.
The knowledge base that underpins analysis and the interpretation of evi-
dence—which enable the forensic science disciplines to excel at informing
investigations, providing strong evidence for prosecutions, and avoiding
errors that could lead to imperfect judgment—is incomplete in important
ways. NIJ is the only federal agency that provides direct support to crime
laboratories to alleviate the backlog, and those funds are minimal. The
enterprise also is underresourced in the sense that it has only thin ties to an
academic research base that could undergird the forensic science disciplines
and fill knowledge gaps. This underresourcing limits the ability of the many
hard-working and conscientious people in the forensic science community
to do their best work.
Among the various facets of underresourcing, the committee is most
concerned about the knowledge base, which is further examined in Chapter
5. Adding more dollars and people to the enterprise might reduce case back-
logs, but it will not address fundamental limitations in the capability of the
forensic science disciplines to discern valid information from crime scene
78
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES
evidence. For the most part, it is impossible to discern the magnitude of
those limitations, and reasonable people will differ on their significance.
Forensic science research is not well supported, and there is no unified
strategy for developing a forensic science research plan across federal agen-
cies. Relative to other areas of science, the forensic science disciplines have
extremely limited opportunities for research funding. Although the FBI and
NIJ have supported some research in the forensic science disciplines, the level
of support has been well short of what is necessary for the forensic science
community to establish strong links with a broad base of research universi-
ties and the national research community. Moreover, funding for academic
research is limited and requires law enforcement collaboration, which can
inhibit the pursuit of more fundamental scientific questions essential to es-
tablishing the foundation of forensic science. Finally, the broader research
community generally is not engaged in conducting research relevant to
advancing the forensic science disciplines.
The forensic science community also is hindered by its extreme
disaggregation—marked by multiple types of practitioners with different
levels of education and training and different professional cultures and stan-
dards for performance. Many forensic scientists are given scant opportunity
for professional activities such as attending conferences or publishing their
research, which could help strengthen that professional community. Fur-
thermore, the fragmented nature of the forensic science community raises
the worrisome prospect that the quality of evidence presented in court, and
its interpretation, can vary unpredictably according to jurisdiction.
Numerous professional associations are organized around the forensic
science disciplines, and many of them are involved in training and education
(see Chapter 8) and developing standards and accreditation and certifica-
tion programs (see Chapter 7). The efforts of these groups are laudable.
However, except for the largest organizations, it is not clear how these
associations interact or the extent to which they share requirements, stan-
dards, or policies. Thus, there is a need for more consistent and harmonized
requirements.
In the course of its deliberations and review of the forensic science com-
munity, it became obvious to the committee that truly meaningful advances
will not come without significant leadership from the federal government.
The forensic science community lacks the necessary governance structure
to pull itself up from its current weaknesses. Insufficiencies in the current
system cannot be addressed simply by increasing the staff within existing
crime laboratories and medical examiners offices. Of the many professional
societies that serve the forensic science community, none is dominant, and
none has clearly articulated the need for change or presented a vision for
accomplishing it. And clearly no municipal or state forensic office has the
mandate to lead the entire community. The major federal resources—NIJ
THE NEED FOR INTEGRATED GOVERNANCE
79
and the FBI Laboratory—have provided modest leadership, for which they
should be commended. NIJ has contributed a helpful research program and
the FBI Laboratory has spearheaded the SWGs. But again, neither entity has
recognized, let alone articulated, a need for change or a vision for affecting
it. Neither has the full confidence of the larger forensic science community.
And because both are part of a prosecutorial department of the govern-
ment, they could be subject to subtle contextual biases that should not be
allowed to undercut the power of forensic science.
The forensic science community needs strong governance to adopt and
promote an aggressive, long-term agenda to help strengthen forensic sci-
ence. Governance must be strong enough—and independent enough—to
identify the limitations of forensic science methodologies and must be
well connected with the Nation’s scientific research base in order to affect
meaningful advances in forensic science practices. The governance structure
must be able to create appropriate incentives for jurisdictions to adopt and
adhere to best practices and promulgate the necessary sanctions to discour-
age bad practices. It must have influence with educators in order to effect
improvements to forensic science education. It must be able to identify
standards and enforce them. The governance entity must be geared toward
(and be credible within) the law enforcement community, but it must have
strengths that extend beyond that area. Oversight of the forensic science com-
munity and medical examiner system will sweep broadly into areas of crimi-
nal investigation and prosecution, civil litigation, legal reform, investigation
of insurance claims, national disaster planning and preparedness, homeland
security, certification of federal, state, and local forensic practitioners, public
health, accreditation of public and private laboratories, research to improve
forensic methodologies, education programs in colleges and universities, and
advancing technology.
The committee considered whether such a governing entity could be
established within an existing federal agency. The National Science Founda-
tion (NSF) was considered because of its strengths in leading research and
its connections to the research and education communities. NSF is surely
capable of building and sustaining a research base, but it has very thin ties
to the forensic science community. It would be necessary for NSF to take
many untested steps if it were to assume responsibility for the governance
of applied fields of science. The committee also considered NIST. In the end
analysis, however, NIST did not appear to be a viable option. It has a good
program of research targeted at forensic science and law enforcement, but
the program is modest. NIST also has strong ties to industry and academia,
and it has an eminent history in standard setting and method development.
But its ties to the forensic science community are still limited, and it would
not be seen as a natural leader by the scholars, scientists, and practitioners
in the field. In sum, the committee concluded that neither NSF nor NIST has
80
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES
the breadth of experience or institutional capacity to establish an effective
governance structure for the forensic science enterprise.
There was also a strong consensus in the committee that no existing
or new division or unit within DOJ would be an appropriate location for
a new entity governing the forensic science community. DOJ’s principal
mission is to enforce the law and defend the interests of the United States
according to the law. Agencies within DOJ operate pursuant to this mission.
The FBI, for example, is the investigative arm of DOJ and its principal mis-
sions are to produce and use intelligence to protect the Nation from threats
and to bring to justice those who violate the law. The work of these law
enforcement units is critically important to the Nation, but the scope of the
work done by DOJ units is much narrower than the promise of a strong
forensic science community. Forensic science serves more than just law
enforcement; and when it does serve law enforcement, it must be equally
available to law enforcement officers, prosecutors, and defendants in the
criminal justice system. The entity that is established to govern the forensic
science community cannot be principally beholden to law enforcement.
The potential for conflicts of interest between the needs of law enforce-
ment and the broader needs of forensic science are too great. In addition,
the committee determined that the research funding strategies of DOJ have
not adequately served the broad needs of the forensic science community.
This is understandable, but not acceptable when the issue is whether an
agency is best suited to support and oversee the Nation’s forensic science
community. In sum, the committee concluded that advancing science in the
forensic science enterprise is not likely to be achieved within the confines of
DOJ. Moreover, DHS is too focused on national security to embed a new
entity within it.
The committee thus concluded that no existing agency has the capacity
or appropriate mission to take on the roles and responsibilities needed to
govern and improve the forensic science community. The tasks assigned to
it require that it be unfettered and objective and as free from bias as pos-
sible. What is needed is a new, strong, and independent entity with no ties to
the past and with the authority and resources to implement a fresh agenda
designed to address the many problems found by the committee and dis-
cussed in the remainder of this report.
The proposed entity must meet the following minimum criteria:
• It must have a culture that is strongly rooted in science, with strong
ties to the national research and teaching communities, including
federal laboratories.
• It must have strong ties to state and local forensic entities, as well
as to the professional organizations within the forensic science
community.
THE NEED FOR INTEGRATED GOVERNANCE
81
• It must not be in any way committed to the existing system, but
should be informed by its experiences.
• It must not be part of a law enforcement agency.
• It must have the funding, independence, and sufficient prominence
to raise the profile of the forensic science disciplines and push ef-
fectively for improvements.
• It must be led by persons who are skilled and experienced in de-
veloping and executing national strategies and plans for standard
setting; managing accreditation and testing processes; and devel-
oping and implementing rulemaking, oversight, and sanctioning
processes.
No federal agency currently exists that meets all of these criteria.
Recommendation 1:
To promote the development of forensic science into a mature
field of multidisciplinary research and practice, founded on the
systematic collection and analysis of relevant data, Congress should
establish and appropriate funds for an independent federal entity,
the National Institute of Forensic Science (NIFS). NIFS should have
a full-time administrator and an advisory board with expertise in
research and education, the forensic science disciplines, physical
and life sciences, forensic pathology, engineering, information tech-
nology, measurements and standards, testing and evaluation, law,
national security, and public policy. NIFS should focus on:
(a) establishing and enforcing best practices for forensic sci-
ence professionals and laboratories;
(b) establishing standards for the mandatory accreditation of
forensic science laboratories and the mandatory certifica-
tion of forensic scientists and medical examiners/forensic
pathologists—and identifying the entity/entities that will
develop and implement accreditation and certification;
(c) promoting scholarly, competitive peer-reviewed research
and technical development in the forensic science disci-
plines and forensic medicine;
(d) developing a strategy to improve forensic science research
and educational programs, including forensic pathology;
(e) establishing a strategy, based on accurate data on the fo-
rensic science community, for the efficient allocation of
82
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES
available funds to give strong support to forensic method-
ologies and practices in addition to DNA analysis;
(f) funding state and local forensic science agencies, inde-
pendent research projects, and educational programs as
recommended in this report, with conditions that aim to
advance the credibility and reliability of the forensic sci-
ence disciplines;
(g) overseeing education standards and the accreditation of
forensic science programs in colleges and universities;
(h) developing programs to improve understanding of the fo-
rensic science disciplines and their limitations within legal
systems; and
(i) assessing the development and introduction of new tech-
nologies in forensic investigations, including a comparison
of new technologies with former ones.
The benefits that will flow from a strong, independent, strategic, coher-
ent, and well-funded federal program to support and oversee the forensic
science disciplines in this country are clear: The Nation will (1) bolster
its ability to more accurately identify true perpetrators and exclude those
who are falsely accused; (2) improve its ability to effectively respond to,
attribute, and prosecute threats to homeland security; and (3) reduce the
likelihood of convictions resting on inaccurate data. Moreover, establishing
the scientific foundation of the forensic science disciplines, providing better
education and training, and requiring certification and accreditation will
position the forensic science community to take advantage of current and
future scientific advances.
The creation of a new federal entity undoubtedly will pose challenges,
not the least of which will be budgetary constraints. The committee is not
in a position to estimate how much it will cost to implement the recom-
mendations in this report; this is a matter best left to the expertise of the
Congressional Budget Office. What is clear, however, is that Congress must
take aggressive action if the worst ills of the forensic science community
are to be cured. Political and budgetary concerns should not deter bold,
creative, and forward-looking action, because the country cannot afford to
suffer the consequences of inaction. It will also take time and patience to
implement the recommendations in this report. But this is true with any
large, complex, important, and challenging enterprise.
The committee strongly believes that the greatest hope for success in
this enterprise will come with the creation of NIFS to oversee and direct
the forensic science community. The remaining recommendations in this
report are crucially tied to the creation of NIFS. However, each recom-
THE NEED FOR INTEGRATED GOVERNANCE
83
mendation is a separate, essential piece of the plan to improve the forensic
science community in the United States. Therefore, even if the creation of
NIFS is forestalled, the committee vigorously supports the adoption of the
core ideas and principles embedded in the additional recommendations that
appear in this report.
3
The Admission of Forensic
Science Evidence in Litigation
This chapter describes the legal system’s reliance on forensic science
evidence in criminal prosecutions and examines the existing adversarial
process for admitting this type of evidence. The report describes and ana-
lyzes the current situation and makes recommendations for the future.
No judgment is made about past convictions and no view is expressed as
to whether courts should reassess cases that already have been tried. The
report finds that the existing legal regime—including the rules governing
the admissibility of forensic evidence, the applicable standards governing
appellate review of trial court decisions, the limitations of the adversary
process, and judges and lawyers who often lack the scientific expertise
necessary to comprehend and evaluate forensic evidence—is inadequate to
the task of curing the documented ills of the forensic science disciplines.
This matters a great deal, because “forensic science is but the handmaiden
of the legal system.”1 As explained in Chapters 4 and 5, there are serious
issues regarding the capacity and quality of the current forensic science
system; yet, the courts continue to rely on forensic evidence without fully
understanding and addressing the limitations of different forensic science
disciplines. This profound conjunction of law and science, especially in the
context of law enforcement, underscores the need for improvement in the
1 4 D.L. Faigman, M.J. Saks, J. Sanders, and E.K. Cheng. 2007-2008. Modern Scientific
Evidence: The Law and Science of Expert Testimony. Eagan, MN: Thomson/West, § 29.4,
p.6. See also P.C. Giannelli and E.J. Imwinkelried. 2007. Scientific Evidence, 4th ed. Albany,
NY: Lexis Publishing Co., on the latest forensic techniques and scientific concepts used in
collecting and evaluating evidence.
85
86
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES
forensic science community. The report concludes that every effort must be
made to limit the risk of having the reliability of certain forensic science
methodologies judicially certified before the techniques have been properly
studied and their accuracy verified.
LAW AND SCIENCE
Science and law always have had an uneasy alliance:
Since as far back as the fourteenth century, scientific evidence has posed
profound challenges for the law. At bottom, many of these challenges arise
from fundamental differences between the legal and scientific processes.
. . . The legal system embraces the adversary process to achieve “truth,”
for the ultimate purpose of attaining an authoritative, final, just, and so-
cially acceptable resolution of disputes. Thus law is a normative pursuit
that seeks to define how public and private relations should function
In contrast to law’s vision of truth, however, science embraces empirical
analysis to discover truth as found in verifiable facts. Science is thus a
descriptive pursuit, which does not define how the universe should be but
rather describes how it actually is.
These differences between law and science have engendered both sys-
temic and pragmatic dilemmas for the law and the actors within it
Moreover, in almost every instance, scientific evidence tests the abilities of
judges, lawyers, and jurors, all of whom may lack the scientific expertise
to comprehend the evidence and evaluate it in an informed manner.2
Nowhere are these dilemmas more evident than in decisions pertaining to
the admissibility of forensic science evidence proffered in criminal trials.
Forensic science experts and evidence are routinely used in the service
of the criminal justice system. DNA testing may be used to determine
whether sperm found on a rape victim came from an accused party; a latent
fingerprint found on a gun may be used to determine whether a defendant
handled the weapon; drug analysis may be used to determine whether pills
found in a person’s possession were illicit; and an autopsy may be used
to determine the cause of death of a murder victim. In order for qualified
forensic science experts to testify competently about forensic evidence, they
must first find the evidence in a usable state and properly preserve it. A la-
tent fingerprint that is badly smudged when found cannot be usefully saved,
analyzed, or explained. An inadequate drug sample may be insufficient to
allow for proper analysis. And, DNA tests performed on a contaminated
2 Developments in the law—confronting the new challenges of scientific evidence. 108 Harv.
L. Rev. 1481, 1484 (1995) (hereinafter “Developments in the law”) (footnotes omitted); see
also M.A. Berger and L.M. Solan. The uneasy relationship between science and law: An essay
and introduction. 73 Brook. L. Rev. 847 (2008).
FORENSIC SCIENCE EVIDENCE IN LITIGATION
87
or otherwise compromised sample cannot reliably identify or eliminate an
individual as the perpetrator of a crime. These are important matters having
to do with the proper “processing” of forensic evidence. The law’s greatest
dilemma in its heavy reliance on forensic evidence, however, concerns the
question of whether—and to what extent—there is science in any given
“forensic science” discipline.3
The degree of science in a forensic science method may have an impor-
tant bearing on the reliability of forensic evidence in criminal cases. There
are two very important questions that should underlie the law’s admission
of and reliance upon forensic evidence in criminal trials: (1) the extent to
which a particular forensic discipline is founded on a reliable scientific
methodology that gives it the capacity to accurately analyze evidence and
report findings and (2) the extent to which practitioners in a particular
forensic discipline rely on human interpretation that could be tainted by
error, the threat of bias, or the absence of sound operational procedures and
robust performance standards. These questions are significant:4 The goal
of law enforcement actions is to identify those who have committed crimes
and to prevent the criminal justice system from erroneously convicting the
innocent. So it matters a great deal whether an expert is qualified to testify
about forensic evidence and whether the evidence is sufficiently reliable to
merit a fact finder’s reliance on the truth that it purports to support.
As discussed in Chapters 4 and 5, no forensic method other than
nuclear DNA analysis has been rigorously shown to have the capacity to
consistently and with a high degree of certainty support conclusions about
“individualization” (more commonly known as “matching” of an unknown
item of evidence to a specific known source). In terms of scientific basis, the
analytically based disciplines generally hold a notable edge over disciplines
based on expert interpretation. But there also are important variations
among the disciplines relying on expert interpretation. For example, there
are more established protocols and available research for the analysis of
fingerprints than for bite marks. In addition, there also are significant varia-
tions within each discipline. Thus, not all fingerprint evidence is equally
good, because the true value of the evidence is determined by the quality of
the latent fingerprint image. In short, the interpretation of forensic evidence
is not infallible. Quite the contrary. This reality is not always fully appre-
3 Principles of science are discussed in Chapter 4.
4 Descriptions and assessments of different forensic science disciplines are set forth in
Chapters 5 and 6.
88
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES
ciated or accepted by many forensic science practitioners, judges, jurors,
policymakers, or lawyers and their clients.5
THE FRYE STANDARD AND RULE 702 OF THE
FEDERAL RULES OF EVIDENCE
During the twentieth century, as science advanced, the legal system
“attempted to develop coherent tests for the admissibility of scientific evi-
dence.”6 The first notable development occurred in 1923 with the issuance
of the landmark decision in Frye v. United States.7 The Frye case involved
a murder trial in which the defendant sought to demonstrate his innocence
through the admission of a lie detector test that measured systolic blood
pressure. The court rejected the evidence, stating:
Just when a scientific principle or discovery crosses the line between the
experimental and demonstrable stages is difficult to define. Somewhere
in this twilight zone the evidential force of the principle must be recog-
nized, and while courts will go a long way in admitting expert testimony
deduced from a well-recognized scientific principle or discovery, the thing
from which the deduction is made must be sufficiently established to have
gained general acceptance in the particular field in which it belongs.8
The Frye decision held that the lie detector test was unreliable because
it had not gained “general acceptance” in the relevant scientific community.
The meaning of the Frye test is elusive. Indeed, “[t]he merits of the Frye test
have been much debated, and scholarship on its proper scope and applica-
tion is legion.”9 For many years, the Frye test was cited in both civil and
criminal cases, but it was applied most frequently in criminal cases.10 “In
the 70 years since its formulation in the Frye case, the ‘general acceptance’
5 See 4 Faigman et al., op. cit., supra note 1, §29.3, p. 6 (“Few forensic scientists harbor
serious misgivings about the expectation of good science on the part of their clients, be they
the police, the prosecution, or the defense bar
The clients want good science and the truth
if it will help their case.”); S. Scarborough. 2005. They keep putting fingerprints in print. The
CACNews. California Association of Criminalists, 2nd Quarter. Available at www.cacnews.
org/news/2ndq05.pdf, p. 19 (“As scientists we are confident that any ‘critic’ that tries to prove
the fallibility of fingerprints will actually find the opposite. Just as we testify to everyday.”).
6 Developments in the law, supra note 2, p. 1486.
7 Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923).
8 Ibid., p. 1014.
9 Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 586 & n.4 (1993) (citing
authorities).
10 P.C. Giannelli. 1993. “Junk science”: The criminal cases. Journal of Criminal Law and
Criminology 84:105, 111, and n.35.
FORENSIC SCIENCE EVIDENCE IN LITIGATION
89
test [was] the dominant standard for determining the admissibility of novel
scientific evidence at trial.”11
In 1975, more than a half-century after Frye was decided, the Federal
Rules of Evidence were promulgated to guide criminal and civil litigation in
federal courts. The first version of Federal Rule of Evidence 702 provided
that:
If scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or educa-
tion, may testify thereto in the form of an opinion or otherwise.12
In place of Frye’s requirement of general scientific acceptance, mere “assis-
tance” to the trier of fact appeared to be “the touchstone of admissibility
under Rule 702.”13
After the promulgation of Rule 702, litigants, judges, and legal schol-
ars remained at odds over whether the rule embraced the Frye standard
or established a new standard.14 There was also much controversy sur-
rounding the application of Rule 702 in civil cases. Most notably, Peter
Huber popularized the now well-known phrase “junk science” to criticize
the judiciary’s acceptance of unreliable expert testimony in support of tort
claims.15 Huber’s study was sharply criticized,16 but it nonetheless spurred
a debate over the use of expert testimony in the courts. However, “[d]espite
the highly visible efforts to reform the rules governing experts in the civil
arena, the ‘junk science’ debate . . . all but ignored criminal prosecutions.”17
The “neglect of the problems of expert testimony in criminal prosecutions”
was seen by some as “deplorable.”18
11 Daubert, 509 U.S. at 585.
12 Fed. R. Evid. 702, P.L. No. 93-595, § 1, 88 Stat. 1926 (effective January 2, 1975).
13 Giannelli, op. cit., supra note 10, p. 107.
14 T. Lyons. 1997. Frye, Daubert and where do we go from here? Rhode Island Bar Journal
45(5):21 (stating that “the vast majority of federal circuit and other courts adopted Frye as
the standard of admissibility in their jurisdictions”).
15 P.W. Huber. 1991. Galileo’s Revenge: Junk Science in the Courtroom. New York: Basic
Books.
16 See, e.g., K.J. Chesebro. Galileo’s retort: Peter Huber’s junk scholarship. 42 Am. U. L.
Rev. 1637 (1993); Book Note: Rebel without a cause. 105 Harv. L. Rev. 935 (1992).
17 Giannelli, op. cit., supra note 10, p. 110.
18 Ibid., pp. 110-111. Over time, a number of courts and commentators found the “general
acceptance” test seriously wanting. See 1 Faigman et al., op. cit., supra note 1, § 1:6, pp.
13-17; P.C. Giannelli. The admissibility of novel scientific evidence: Frye v. United States, a
half-century later. 80 Colum. L. Rev. 1197, 1207-1208 (1980) (“[T]he problems Frye has
engendered—the difficulties in applying the test and the anomolous results it creates—so far
outweigh [its] advantages that the argument for adopting a different test has become over-
whelming.”); M. McCormick. Scientific evidence: Defining a new approach to admissibility.
67 Iowa L. Rev. 879, 915 (1982) (Frye’s “main drawbacks are its inflexibility, confusion of
90
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES
THE DAUBERT DECISION AND THE SUPREME COURT’S
CONSTRUCTION OF RULE 702
In 1993, in Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme
Court finally clarified that Rule 702, not Frye, controlled the admission of
expert testimony in the federal courts.19 Daubert was a civil case brought
by two minor children and their parents, alleging that the children’s seri-
ous birth defects had been caused by their mothers’ prenatal ingestion of
Bendectin, a prescription drug marketed by the defendant pharmaceutical
company. In support of a motion for summary judgment, the drug com-
pany submitted an affidavit from a qualified expert, who stated that he had
reviewed all the literature on Bendectin and human birth defects and had
found no study showing Bendectin to be a human teratogen (i.e., an agent
that can cause malformations of an embryo or fetus). The plaintiffs coun-
tered with experts of their own, each of whom concluded that Bendectin
could cause birth defects. Their conclusions were based on animal studies
that found a link between Bendectin and malformations; pharmacologi-
cal studies of the chemical structure of Bendectin that purported to show
similarities between the structure of the drug and that of other substances
known to cause birth defects; and the “reanalysis” of previously published
epidemiological (human statistical) studies. The district court held that the
expert testimony proffered by the plaintiffs was inadmissible, because their
scientific evidence was not sufficiently established to have general accep-
tance in the field to which it belonged.20 The court of appeals, citing Frye,
affirmed the judgment of the district court, declaring that expert opinion
based on a methodology that diverges significantly from the procedures
accepted by recognized authorities in the field cannot be shown to be
generally accepted as a reliable technique.21 The Supreme Court reversed,
holding that the trial court had applied the wrong standard in assessing the
expert testimony proffered by the plaintiffs. The case was then remanded
for further proceedings.
In construing and applying Rule 702, the Daubert Court ruled that a
“trial judge must ensure that any and all scientific testimony or evidence
admitted is not only relevant, but reliable.”22 The Court rejected the Frye
test, noting that the drafting history of Rule 702 made no mention of Frye,
issues, and superfluity.”); J.W. Strong. Questions affecting the admissibility of scientific evi-
dence. U. Ill. L.F. 1, 14 (1970) (“The Frye standard, however, tends to obscure these proper
considerations by asserting an undefinable general acceptance as the principal if not sole
determinative factor.”).
19 509 U.S. 579 (1993).
20 Daubert v. Merrell Dow Pharm, Inc., 727 F. Supp. 570, 575 (S.D. Cal. 1989).
21 Daubert v. Merrell Dow Pharm., Inc., 951 F.2d 1128, 1129-30 (9th Cir. 1991).
22 Daubert, 509 U.S. at 589.
FORENSIC SCIENCE EVIDENCE IN LITIGATION
91
“and a rigid ‘general acceptance’ requirement would be at odds with the
‘liberal thrust’ of the Federal Rules and their ‘general approach of relaxing
the traditional barriers to ‘opinion’ testimony.’”23 The Court indicated that
the subject of expert testimony should be “scientific knowledge,” so “evi-
dentiary reliability will be based upon scientific validity.”24 The Court also
emphasized that, in considering the admissibility of evidence, trial judges
should focus “solely” on experts’ “principles and methodology,” and “not
on the conclusions that they generate.”25 In sum, Daubert’s requirement
that expert testimony pertain to “scientific knowledge” established a stan-
dard of “evidentiary reliability.”
In explaining this evidentiary standard, the Daubert Court pointed
to several factors that might be considered by a trial judge: (1) whether a
theory or technique can be (and has been) tested; (2) whether the theory
or technique has been subjected to peer review and publication; (3) the
known or potential rate of error of a particular scientific technique; (4) the
existence and maintenance of standards controlling the technique’s opera-
tion; and (5) a scientific technique’s degree of acceptance within a relevant
scientific community.26 In the end, however, the Court emphasized that the
inquiry under Rule 702 is “a flexible one.”27 The Court also rejected the
suggestion that its liberal construction of Rule 702 would “result in a ‘free-
for-all’ in which befuddled juries are confounded by absurd and irrational
pseudoscientific assertions.”28 Rather, the Court expressed confidence in the
adversary system, noting that “[v]igorous cross-examination, presentation
of contrary evidence, and careful instruction on the burden of proof are
the traditional and appropriate means of attacking shaky but admissible
evidence.”29
23 Ibid., p. 588 (internal citations omitted).
24 Ibid, p. 590 and n.9 (emphasis omitted).
25 Ibid., p. 595. In General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997), the Court
added: “[C]onclusions and methodology are not entirely distinct from one another. Trained
experts commonly extrapolate from existing data. But nothing in Daubert or the Federal Rules
of Evidence requires a district court to admit opinion evidence that is connected to existing
data only by the ipse dixit of the expert.”
26 Ibid., pp. 592-94.
27 Ibid., p. 594. In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), the Court
confirmed that the Daubert factors do not constitute a definitive checklist or test. Kumho Tire
importantly held that Rule 702 applies to both scientific and nonscientific expert testimony;
the Court also indicated that the Daubert factors might be applicable in a trial judge’s as-
sessment of the reliability of nonscientific expert testimony, depending upon “the particular
circumstances of the particular case at issue.” 526 U.S. at 150.
28 Daubert, 509 U.S. at 595.
29 Ibid., p. 596.
92
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES
Daubert-type questions may be raised by the parties pretrial,30 or
during the course of trial,31 or sua sponte by the trial judge.32 Sometimes
a trial judge will conduct a formal “Daubert hearing” before ruling on a
party’s objection to expert testimony; sometimes, however, the judge will
simply entertain a party’s objection, hear arguments, and then rule.33 Judges
sometimes rule on the briefs alone, without the benefit of formal argu-
ments. There are any number of questions that might arise concerning the
testimony of a forensic science expert or about the forensic evidence itself.
These questions might include, inter alia, issues relating to one of the five
Daubert factors or other factors appropriate to the forensic evidence, the
relevance of the evidence, the qualifications of the expert, the adequacy of
the evidentiary sample about which the expert will be testifying, and the
procedures followed in the handling and processing of the evidence. After
considering the matter at issue, a trial judge may exclude the evidence in
whole or in part, prevent or limit the testimony of the expert witness, or
deny the challenge. The Supreme Court has made it clear that trial judges
have great discretion in deciding on the admissibility of evidence under Rule
702, and that appeals from Daubert rulings are subject to a very narrow
abuse-of-discretion standard of review.34 Most importantly, in Kumho Tire
Co., Ltd. v. Carmichael, the Court made it clear that “whether Daubert’s
specific factors are, or are not, reasonable measures of reliability in a par-
ticular case is a matter that the law grants the trial judge broad latitude to
determine.”35
THE 2000 AMENDMENT OF RULE 702
In 2000, Rule 702 was amended “in response to Daubert.”36 The re-
vised rule provides:
30 See, e.g., Alfred v. Caterpillar, Inc., 262 F.3d 1083, 1087 (10th Cir. 2001). (“[B]ecause
Daubert generally contemplates a ‘gatekeeping’ function, not a ‘gotcha’ junction, [the case
law] permits a district court to reject as untimely Daubert motions raised late in the trial
process.”)
31 See, e.g., United States v. Alatorre, 222 F.3d 1098, 1100 (9th Cir. 2000) (holding trial
courts are not compelled to conduct pretrial hearings in order to discharge the gatekeeping
function under Daubert as to expert testimony).
32 See, e.g., Hoult v. Hoult, 57 F.3d 1, 4 (1st Cir. 1995) (“We think Daubert does instruct
district courts to conduct a preliminary assessment of the reliability of expert testimony, even
in the absence of an objection.”).
33 1 Faigman et al., op. cit., supra note 1, § 1.8, p. 23 (stating “[i]n general, most courts
considering the matter hold that a separate hearing to determine the validity of the basis for
scientific evidence is not required” and discussing cases).
34 See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142-43 (1997).
35 Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 153 (1999).
36 Fed. R. Evid. 702 advisory committee’s note (2000 Amendments).
FORENSIC SCIENCE EVIDENCE IN LITIGATION
93
If scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or educa-
tion, 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.37
The commentary accompanying the revised rule38 recites the “Daubert
factors” and then goes on to explain that:
Courts both before and after Daubert have found other factors relevant
in determining whether expert testimony is sufficiently reliable to be con-
sidered by the trier of fact. These factors include:
(1) Whether experts are proposing to testify about matters growing natu-
rally and directly out of research they have conducted independent of
the litigation, or whether they have developed their opinions expressly
for purposes of testifying.
(2) Whether the expert has unjustifiably extrapolated from an accepted
premise to an unfounded conclusion.39
(3) Whether the expert has adequately accounted for obvious alternative
explanations.
(4) Whether the expert is being as careful as he would be in his regular
professional work outside his paid litigation consulting.
(5) Whether the field of expertise claimed by the expert is known to reach
reliable results for the type of opinion the expert would give.40
All of these factors remain relevant to the determination of the reliability
of expert testimony under the rule as amended.
The commentary accompanying the revised rule also notes that:
37 Fed. R. Evid. 702.
38 Fed. R. Evid. 702 advisory committee’s note (2000 Amendments) (citations and quota-
tion marks omitted).
39 The commentary cites General Electric, 522 U.S. at 146 (noting that in some cases a trial
court “may conclude that there is simply too great an analytical gap between the data and
the opinion proffered”).
40 The commentary cites Kumho Tire, 526 U.S. at 150 (Daubert’s general acceptance fac-
tor does not “help show that an expert’s testimony is reliable where the discipline itself lacks
reliability, as for example, do theories grounded in any so-called generally accepted principles
of astrology or necromancy.”); Moore v. Ashland Chem., Inc., 151 F.3d 269 (5th Cir. 1998)
(en banc) (clinical doctor was properly precluded from testifying to the toxicological cause of
the plaintiff’s respiratory problem, where the opinion was not sufficiently grounded in scien-
tific methodology); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988) (rejecting
testimony based on “clinical ecology” as unfounded and unreliable).
94
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES
[T]he amendment [to Rule 702] does not distinguish between scientific and
other forms of expert testimony. The trial court’s gatekeeping function ap-
plies to testimony by any expert. While the relevant factors for determining
reliability will vary from expertise to expertise, the amendment rejects the
premise that an expert’s testimony should be treated more permissively
simply because it is outside the realm of science. An opinion from an
expert who is not a scientist should receive the same degree of scrutiny
for reliability as an opinion from an expert who purports to be a scientist.
Some types of expert testimony will be more objectively verifiable, and
subject to the expectations of falsifiability, peer review, and publication,
than others. Some types of expert testimony will not rely on anything
like a scientific method, and so will have to be evaluated by reference to
other standard principles attendant to the particular area of expertise. The
trial judge in all cases of proffered expert testimony must find that it
is properly grounded, well-reasoned, and not speculative before it
can be admitted. The expert’s testimony must be grounded in an
accepted body of learning or experience in the expert’s field, and
the expert must explain how the conclusion is so grounded.
The amendment requires that the testimony must be the product of reliable
principles and methods that are reliably applied to the facts of the case.
While the terms “principles” and “methods” may convey a certain im-
pression when applied to scientific knowledge, they remain relevant when
applied to testimony based on technical or other specialized knowledge.
For example, when a law enforcement agent testifies regarding the use of
code words in a drug transaction, the principle used by the agent is that
participants in such transactions regularly use code words to conceal the
nature of their activities. The method used by the agent is the application
of extensive experience to analyze the meaning of the conversations. So
long as the principles and methods are reliable and applied reliably to the
facts of the case, this type of testimony should be admitted.
Nothing in this amendment is intended to suggest that experience alone—
or experience in conjunction with other knowledge, skill, training or edu-
cation—may not provide a sufficient foundation for expert testimony. To
the contrary, the text of Rule 702 expressly contemplates that an expert
may be qualified on the basis of experience. In certain fields, experience
is the predominant, if not sole, basis for a great deal of reliable expert
testimony. See, e.g., United States v. Jones, 107 F.3d 1147 (6th Cir. 1997)
(no abuse of discretion in admitting the testimony of a handwriting ex-
aminer who had years of practical experience and extensive training, and
who explained his methodology in detail)
See also Kumho Tire Co.
v. Carmichael, 119 S. Ct.1167, 1178 (1999) (stating that “no one denies
that an expert might draw a conclusion from a set of observations based
on extensive and specialized experience.”).41
41 Fed. R. Evid. 702 advisory committee’s note (2000 Amendments).
FORENSIC SCIENCE EVIDENCE IN LITIGATION
95
Given this view of Rule 702—which makes clear that “technical or
other specialized knowledge” may be credited as expert testimony “so long
as the principles and methods are reliable and applied reliably to the facts of
the case”—it is not surprising that the courts might be hard pressed, under
existing standards of admissibility, to hold some forensic science practitio-
ners to the more demanding standards of the traditional sciences.42
AN OVERVIEW OF JUDICIAL DISPOSITIONS OF
DAUBERT-TYPE QUESTIONS
Assessing the admission of forensic evidence in litigation is no small
undertaking, given the huge number of cases in which such evidence is
proffered. Moreover, although Daubert remains the standard by which ad-
missibility in federal cases is measured under Federal Rule of Evidence 702,
states remain free to apply other evidentiary standards. Some states still ap-
ply some version of the Frye standard, while others have adopted Daubert
or some version of the Daubert test.43 Considering the patchwork of state
standards and the fact that “[s]tate courts receive 200 times more criminal
prosecutions than federal courts,” because “[f]orensic science is used most
commonly in crimes of violence, and most crimes of violence are tried in
state court,”44 a comprehensive overview would be difficult to create.
The focus of this section and succeeding sections of this chapter will
be on judicial dispositions of Daubert-type questions in criminal cases in
the federal courts. The reason for this is that, although not every state has
adopted the Daubert standard, there is little doubt that Daubert has ef-
fectively set a norm that applies in every federal court and in a great many
state jurisdictions. It cannot be ignored, and the reported federal cases give
the best evidence of how Daubert is applied by the judiciary.
Judicial dispositions of Daubert-type questions in criminal cases have
been criticized by some lawyers and scholars who thought that the Supreme
Court’s decision would be applied more rigorously to protect the rights of
accused parties:
[Daubert] obligated trial court judges to assume the role of “gatekeepers”
and to exclude proffered scientific evidence unless it rested on scientifically
valid reasoning and methodology. Many thought Daubert would be the
42 See generally Giannelli and Imwinkelried, op. cit., for thoughtful discussions of the admis-
sibility of some forms of forensic science testimony as technical or other specialized knowledge
under Rule 702.
43 See generally D.E. Bernstein and J.D. Jackson. The Daubert trilogy in the states. 44
Jurimetrics J. 351 (2004).
44 P.J. Neufeld. 2005. The (near) irrelevance of Daubert to criminal justice: And some sug-
gestions for reform. American Journal of Public Health 95(Supp. 1):S107, S110.
96
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES
meaningful standard that was lacking in criminal cases and that it would
serve to protect innocent defendants.
[However, a]n analysis of post-Daubert decisions demonstrates that
whereas civil defendants prevail in their Daubert challenges, most of the
time criminal defendants almost always lose their challenges to govern-
ment proffers. But when the prosecutor challenges a criminal defendant’s
expert evidence, the evidence is almost always kept out of the trial
In the first 7 years after Daubert, there were 67 reported federal appellate
decisions reviewing defense challenges to prosecution experts. The govern-
ment prevailed in all but 6, and even among the 6, only 1 resulted in the
reversal of a conviction. In contrast, in the 54 cases in which the defense
appealed a trial court ruling to exclude the defendant’s expert, the defen-
dant lost in 44 cases. In 7 of the remaining 10, the case was remanded for
a Daubert hearing.45
This critique of reported federal appellate decisions cannot be the end
of the analysis, however. First, there are two sides to any discussion con-
cerning the admissibility and reliability of forensic evidence: (1) enhancing
the ability of law enforcement to identify persons who commit crimes and
(2) protecting innocent persons from being convicted of crimes that they did
not commit. It is easier to assess the latter than the former, because there
are no good studies indicating how many convictions are lost because of
faulty forensic science evidence. Second, if one focuses solely on federal ap-
pellate decisions, the picture is not appealing to those who have preferred
a more rigorous application of Daubert. Federal appellate courts have not
with any consistency or clarity imposed standards ensuring the application
of scientifically valid reasoning and reliable methodology in criminal cases
involving Daubert questions.46 This is not really surprising. The Supreme
Court itself described the Daubert standard as “flexible.” This means that,
beyond questions of relevance, Daubert offers appellate courts no clear sub-
stantive standard pursuant to which to review decisions by trial courts.47
As a result, trial judges exercise great discretion in deciding whether to
45 Ibid., p. S109. See also P.C. Giannelli. Wrongful convictions and forensic science: The
need to regulate crime labs. 86 N.C. L. Rev. 163 (2007).
46 See, e.g., United States v. Brown, 415 F.3d 1257 (11th Cir. 2005); United States v. Hav-
vard, 260 F.3d 597 (7th Cir. 2001). The Havvard decision has been described as “[a]n excel-
lent, albeit deeply troubling, example of a court straining scientific credulity for the sake of a
venerable forensic science.” See 1 Faigman et al., op. cit., supra note 1, § 1:30, pp. 85-86.
47 As noted above, “whether Daubert’s specific factors are, or are not, reasonable measures
of reliability in a particular case is a matter that the law grants the trial judge broad latitude
to determine.” Kumho Tire, 526 U.S. at 153.
FORENSIC SCIENCE EVIDENCE IN LITIGATION
97
admit or exclude expert testimony, and their judgments are subject only to
a highly deferential “abuse of discretion” standard of review.48
To get a clearer picture of judicial dispositions of Daubert-type ques-
tions, we need to know how these matters are handled by trial courts.
Unfortunately, the picture is unclear. There are countless Daubert-type,
evidentiary challenges in criminal cases, some resulting in formal Daubert
hearings, and many others not. There is no way to know with any degree
of certainty how many of these challenges are entirely or partially sustained,
because many trial court judgments on evidentiary matters are issued with-
out published opinions49 and with no appeal. If a defendant’s challenge is
sustained and is followed by an acquittal, no appeal ensues and the matter
is over. If a defendant’s challenge is sustained and is followed by a convic-
tion, the defendant obviously will not appeal the favorable evidentiary rul-
ing. If a defendant’s challenge is rejected and is followed by an acquittal, no
appeal ensues and the matter is over. Reported opinions in criminal cases
indicate that trial judges sometimes exclude or restrict expert testimony of-
fered by prosecutors;50 reported opinions also indicate that appellate courts
routinely deny appeals contesting trial court decisions admitting forensic
evidence against criminal defendants.51 But the reported opinions do not
offer in any way a complete sample of federal trial court dispositions of
Daubert-type questions in criminal cases.52
48 Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142-43 (1997); see also H.T. Edwards and L.A.
Elliott. 2007. Federal Standards of Review. St. Paul, MN: Thomson/West, pp. 72-74 (ex-
plaining that when a trial judge acts pursuant to broad discretion, appellate court scrutiny is
necessarily very limited).
49 See, e.g., Hoult, 57 F.3d at 5 (district courts are not required “to make explicit on-the-re-
cord rulings regarding the admissibility of expert testimony”); United States v. Locascio, 6 F.3d
924, 938-939 (2d Cir. 1993) (“We decline . . . to shackle the district court with a mandatory
and explicit trustworthiness analysis
In fact, we assume that the district court consistently
and continually performed a trustworthiness analysis sub silentio of all evidence introduced
at trial. We will not, however, circumscribe this discretion by burdening the court with the
necessity of making an explicit determination for all expert testimony.”).
50 See, e.g., United States v. Green, 405 F. Supp. 2d 104 (D. Mass. 2005) (toolmark analy-
sis); United States v. Mikos, No. 02-137, 2003 WL 22922197 (N.D. Ill. Dec. 9, 2003) (expert
testimony relating to comparative bullet lead analysis); United States v. Horn, 185 F. Supp. 2d
530 (D. Md. 2002) (evidence of defendant’s performance on field sobriety tests); United States
v. Rutherford, 104 F. Supp. 2d 1190 (D. Neb. 2000) (handwriting analysis).
51 See, e.g., United States v. Ford, 481 F.3d 215 (3d Cir. 2007); United States v. Moreland,
437 F.3d 424 (4th Cir. 2006); United States v. Brown, 415 F.3d 1257 (11th Cir. 2005); United
States v. Davis, 397 F.3d 173 (3d Cir. 2005); United States v. Conn, 297 F.3d 548 (7th Cir.
2002); United States v. Havvard, 260 F.3d 597 (7th Cir. 2001); United States v. Malveaux, 208
F.3d 223 (9th Cir. 2000); United States v. Harris, 192 F.3d 580 (6th Cir. 1999).
52 In 2000, Michael Risinger published a study in which he found that, “as to proffers of
asserted expert testimony, civil defendants win their Daubert reliability challenges to plaintiffs’
proffers most of the time, and that criminal defendants virtually always lose their reliability
challenges to government proffers. And, when civil defendants’ proffers are challenged by
98
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES
The situation is very different in civil cases. The party who loses before
the trial court in a nonfrivolous civil case always has the right and incentive
to appeal to contest the admission or exclusion of expert testimony. In addi-
tion, plaintiffs and defendants, equally, are more likely to have access to ex-
pert witnesses in civil cases, whereas prosecutors usually have an advantage
over most defendants in offering expert testimony in criminal cases. And,
ironically, the appellate courts appear to be more willing to second-guess
trial court judgments on the admissibility of purported scientific evidence
in civil cases than in criminal cases.53
plaintiffs, those defendants usually win, but when criminal defendants’ proffers are challenged
by the prosecution, the criminal defendants usually lose.” D. M. Risinger Navigating expert
reliability: Are criminal standards of certainty being left on the dock? 64 Alb. L. Rev. 99,
99 (2000). However, the sample of federal district court decisions included “only sixty-five
. . . criminal cases, and only fifty-four dealt with dependability issues in a guilt-or-innocence
context
These fifty-four cases represented twelve opinions on defense challenges to pros-
ecution proffers, and forty-two opinions on government challenges to defense proffers. Of
the twelve defense challenges, the government’s challenged evidence was fully admitted eleven
times, and admitted with restrictions once.” Ibid., p. 109 (emphasis added) (footnotes omit-
ted). The study did not include any sample of trial court dispositions of Daubert-type claims
in which no opinion was issued, which might explain why the study included only 12 disposi-
tions of defense challenges to prosecution proffers. The author speculated that “one can be
relatively confident that virtually any decision totally excluding government proffered expertise
on dependability grounds would have been the subject of some sort of opinion, at least the
first time the decision was made in regard to a particular kind of proffer.” Ibid. But there is no
reason to believe that this assumption is correct. Trial judges routinely issue evidentiary rulings
without reported opinions, and many such rulings might implicate Daubert-type questions.
Merely because a defense attorney fails to state “I object on Daubert grounds” says very little
about whether the objection raises an issue that is cognizable under Daubert.
53 See, e.g., McClain v. Metabolife Int’l, Inc., 401 F.3d 1233 (11th Cir. 2005); Chapman
v. Maytag Corp., 297 F.3d 682 (7th Cir. 2002); Goebel v. Denver & Rio Grande W. R.R.
Co., 215 F.3d 1083 (10th Cir. 2000); Smith v. Ford Motor Co., 215 F.3d 713 (7th Cir. 2000);
Walker v. Soo Line R.R. Co., 208 F.3d 581 (7th Cir. 2000); see also 1 Faigman et al., op. cit.,
supra note 1, § 1:35, p. 105 (discussing studies suggesting that courts “employ Daubert more
lackadaisically in criminal trials—especially in regard to prosecution evidence—than in civil
cases—especially in regard to plaintiff evidence”); Risinger, op. cit., supra note 52, p. 100
(“The system shipwreck I fear is that in ten years we will find that civil cases are subject to
strict standards of expertise quality control, while criminal cases are not. The result would be
that the pocketbooks of civil defendants would be protected from plaintiffs’ claims by exclu-
sion of undependable expert testimony, but that criminal defendants would not be protected
from conviction based on similarly undependable expert testimony. Such a result would seem
particularly unacceptable given the law’s claim that inaccurate criminal convictions are sub-
stantially worse than inaccurate civil judgments, reflected in the different applicable standards
of proof.”).
FORENSIC SCIENCE EVIDENCE IN LITIGATION
99
SOME EXAMPLES OF JUDICIAL DISPOSITIONS OF QUESTIONS
RELATING TO FORENSIC SCIENCE EVIDENCE
Judicial Dispositions of Questions Relating to DNA Evidence
DNA typing has been subjected to the most rigorous scrutiny by the
courts, presumably because its discriminating power is so great and so
much is at stake when a suspect is associated to a crime scene only through
DNA typing. Or perhaps because (at least some) modern courts or lawyers
are more literate about science than they were in the past.54
Unlike many forensic techniques that were developed empirically within
the forensic community, with little foundation in scientific theory or analy-
sis, DNA analysis is a fortuitous byproduct of cutting-edge science. From
the beginning, eminent scientists contributed their expertise to ensuring that
DNA evidence offered in a courtroom would be valid and reliable,55 and
by 1996 the National Academy of Sciences had convened two committees
that issued influential recommendations on the use of DNA technology in
forensic science.56 As a result, principles of statistics and population genet-
ics that pertain to DNA evidence were clarified, the methods for conducting
DNA analyses and declaring a match became less subjective, and quality
assurance and quality control protocols were designed to improve labora-
tory performance.
Although some courts initially refused to admit the results of DNA test-
ing because of perceived flaws,57 DNA evidence is now universally admit-
54 4 Faigman et al., op. cit., supra note 1, § 29:35, p. 41.
55 See, e.g., United States v. Yee, 134 F.R.D. 161 (N.D. Ohio 1991) (hearings held over 6
weeks featuring a total of 12 expert witnesses on the admissibility of DNA evidence); People
v. Castro, 545 N.Y.S.2d 985 (N.Y. Sup. Ct. 1989) (hearings held over 12 weeks featuring a
total of 10 expert witnesses on the admissibility of DNA evidence).
56 National Research Council, Committee on DNA Forensic Science. 1996. The Evaluation
of Forensic DNA Evidence. Washington, DC: National Academy Press; National Research
Council, Committee on DNA Technology in Forensic Science. 1992. DNA Technology in
Forensic Science. Washington, DC: National Academy Press.
57 See Castro, 545 N.Y.S.2d at 999 (finding after a pretrial hearing that the “DNA identifica-
tion evidence of inclusion” was inadmissible because “[t]he testing laboratory failed in several
major respects to use the generally accepted scientific techniques and experiments for obtain-
ing reliable results, within a reasonable degree of scientific certainty”). Decided a few years
before the Daubert decision was handed down, Castro applied a modified Frye standard to
determine the admissibility of DNA evidence. Later federal cases, both pre- and post-Daubert,
held that alleged errors in handling and interpreting specific DNA samples would not render
the evidence inadmissible as a matter of law, but should instead be raised at trial as factors
for the jury to weigh in determining the credibility of the DNA evidence. See, e.g., United
States v. Jakobetz, 955 F.2d 786, 800 (2d Cir. 1992); United States v. Trala, 162 F. Supp. 2d
336, 349 (D. Del. 2001), aff’d, 386 F.3d 536 (3rd Cir. 2004), vacated on other grounds, 546
100
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES
ted by courts in the United States. When 2 profiles are found to “match”
in a search of the Federal Bureau of Investigation’s (FBI’s) Combined DNA
Index System (CODIS) database using 13 short tandem repeat (STR) loci,
the likelihood that the profiles came from different people is extremely
small. In other words, assuming the samples were properly collected and
analyzed, an observer may state with a high degree of confidence that the
two profiles likely came from the same person.
Among existing forensic methods, only nuclear DNA analysis has been
rigorously shown to have the capacity to consistently, and with a high de-
gree of certainty, demonstrate a connection between an evidentiary sample
and a specific individual or source. Indeed, DNA testing has been used to
exonerate persons who were convicted as a result of the misapplication of
other forensic science evidence.58 However, this does not mean that DNA
evidence is always unassailable in the courtroom. There may be problems
in a particular case with how the DNA was collected,59 examined in the
laboratory,60 or interpreted, such as when there are mixed samples, limited
amounts of DNA, or biases due to the statistical interpretation of data from
partial profiles.61
Courts were able to subject DNA evidence to rigorous evaluation
U.S. 1086 (2006); United States v. Shea, 957 F. Supp. 331, 340-41 (D.N.H. 1997), aff’d, 159
F.3d 37 (1st Cir. 1998).
58 According to The Innocence Project, there have been 220 postconviction DNA exon-
erations in the United States since 1989. See The Innocence Project, Fact Sheet: Facts on
Post-Conviction DNA Exonerations. Available at www.innocenceproject.org/Content/351.
php; see also B.L. Garrett. Judging innocence. 108 Colum. L. Rev. 55 (2008) (discussing the
results of an empirical study of the types of faulty evidence that was admitted in more than
200 cases for which DNA testing subsequently enabled postconviction exonerations); but see
J. Collins and J. Jarvis. 2008. The Wrongful Conviction of Forensic Science. Crime Lab Re-
port. Available at www.crimelabreport.com/library/pdf/wrongful_conviction.pdf (contesting
the percentage of exonerated defendants whose convictions allegedly were based on faulty
forensic science).
59 See, e.g., W.C. Thompson. DNA evidence in the O.J. Simpson trial. 67 U. Colo. L.
Rev. 827 (1996) (detailing the defense counsel’s theory that proper procedures were not
followed in the collection or handling of the DNA samples at various points in the murder
investigation).
60 See, e.g., L. Hart. 2003. “DNA Lab’s Woes Cast Doubt on 68 Prison Terms.” Los Angeles
Times. March 31, at 19; A. Liptak. 2003. “Houston DNA Review Clears Convicted Rapist,
and Ripples in Texas Could Be Vast.” New York Times. March 11, at A14; R. Tanner. 2003.
“Crime Labs Stained by a Shadow of a Doubt.” Los Angeles Times. July 13, at 18.
61 See, e.g., Coy v. Renico, 414 F. Supp. 2d 744, 761-63 (E.D. Mich. 2006) (rejecting habeas
petitioner’s claim that he was denied a fair trial because the statistical techniques used to evalu-
ate mixed DNA samples were insufficiently reliable); see also B.S. Weir. 2007. The rarity of
DNA profiles. Annals of Applied Statistics 1(2):358-370 (suggesting that wholesale searches of
large DNA databases for solving cold cases might yield false positives with some regularity).
|
||
|
|
|