Setting forensic science on a new path

March/April 2009

The integrity of the criminal justice system is inextricably dependent on forensic science. Our courts are entitled to expect that work of the highest quality and timeliness will be forthcoming from those who provide services in this field. But public crime labs and medical examiner and coroner offices need help. Congress has a unique opportunity to revamp the forensic science delivery system in the United States by adopting the recommendations of the National Academy of Sciences’ (NAS) report issued on February 18, 2009, entitled Strengthening Forensic Science in the United States: A Path Forward.

Over the years we have had ample examples of failed justice when science does not live up to its promise, whether through ineffectual use of science, over-stated opinions, or, in a few cases, malfeasance. Convicting innocent people and allowing guilty ones to go free is unacceptable to everyone. It is simply bad policy and erodes public confidence in law enforcement, the courts, and the criminal justice system.

The National Academy’s report offers a far-reaching set of recommendations to right the system and set forensic science on a new path. Yet, until Congress acts to endorse and adopt the recommendations, little will happen.

The NAS report notes that forensic science is a critical element of the criminal justice system and identifies aspects that are flawed and in need of improvement. It notes, for example, that forensic science is fragmented and underfunded. While the field of forensic science has its detractors and its supporters, all will agree that quality forensic science, delivered in a timely fashion, is essential to the criminal justice system. Many of the important recommendations will take years to set in place. But the NAS report’s first recommendation—to create a National Institute of Forensic Science—is key to establishing a strategic pathway.

Forensic science covers a wide range of disciplines: chemistry, biology, medicine, and material science, plus a wide array of subjects not generally found in traditional academic departments. Thus, many feel that fingerprint identification, hand writing analysis, firearms, tool mark, tire impressions, footwear evidence, arson investigation, bite marks, etc., need further validation. All of these areas of investigation present difficult and important issues for courts, who serve as the “gatekeepers,” determining what evidence juries may consider and what does not meet a threshold of reliability. The report concludes that “the courts have been utterly ineffective in addressing this problem.” The American Judicature Society—committed as it is to improving our systems of justice—cannot but be deeply concerned about the need for reform in this area and is uniquely positioned to offer judicial education on the issues.

A number of the recommendations raise serious challenges. For instance, the report notes that some routinely employed forensic tests need further validation. The implications of this observation are obvious. Does this suggest that fingerprint or firearms evidence, to pick two examples, may not be admissible until further evaluation is completed?

Comprehensive, well-funded, and peer reviewed research is needed to evaluate a wide range of physical evidence in order to determine how capable it is of identifying individuals and error rates associated with analyses. While studies have evaluated many classifications of evidence, more is needed. Naturally, it is fair to say that just because studies have not been as detailed as some suggest, this does not prove that the evidence is invalid. For example, studies demonstrate that fingerprint evidence can show an individual left prints at a crime scene. However, examiners may not be able to state without doubt that one, and only one, person out of millions, left the prints.

The report also recommends that all laboratories offering forensic testing should be accredited and all examiners certified. Voluntary programs exist, but it is unclear how such a program might be formalized. Further, a means for the federal government to oversee state and local programs has yet to be proposed. Crime laboratories and medical examiner and coroner offices have largely been underfunded for a very long time, and demands are increasing. This often results in unacceptably large backlogs of untested evidence. There are consequences in not examining evidence in a timely manner. Justice is not served. Crime victim’s, and for that matter the public’s, expectations for timely investigations are thwarted. Serial criminals are able to commit additional crimes and, in some cases, innocent in-custody individuals wait for their cases to be examined in hopes of being exonerated.

The problems of resource availability are compounded when we consider the plight of those already in prison, some of whom were convicted based on forensic testimony that the NAS report now calls into sharp question. The report does not address this important implication, but for AJS this is an issue of great concern. Forensic science reforms must address both improvements that can be achieved in the future and steps that can be taken to correct past injustices.

The report notes that forensic science is generally unregulated. It has few mandatory standard-setting mechanisms, and no single authority to oversee or give direction. The majority of crime labs in the United States are under police agencies or prosecutor offices. The NAS report takes exception to this fact and recommends that forensic science providers be independent of police or prosecution agencies.

The report makes it clear that the courts, prosecutors, and defense attorneys, as well as law schools, must become more informed and educated in the use of forensic science. How all these recommendations are folded into a comprehensive workable plan will be a challenging task, but one that is essential to ensure earned respect for our justice system.

The full NAS report is available for purchase on line through National Academies Press at http://www.nap.edu/catalog. php?record_id=12589, or a free executive summary is available at the same site.