Washington, DC (Feb. 18, 2019) – Ten years ago today the National Research Council of the National Academy of Sciences released the landmark report Strengthening Forensic Science in the United States, A Path Forward (NAS Report). The impact of the NAS Report in strengthening forensic science and improving its use in the courtroom has been tremendous. However, significant work is still needed to implement its recommendations and achieve its objectives and the government abandoned some of the plans for reform, stalling progress.
“A critical component of real and lasting reform in the legal system, especially in the context of criminal prosecutions, is ensuring the scientific integrity of forensic evidence admitted in the courtroom,” said NACDL President Drew Findling. “NACDL remains committed to advancing this essential goal.”
The 2009 NAS Report identified serious deficiencies in forensic science and called for reform, increased funding, and research to ensure foundational validity and increase the reliability of forensic evidence used in criminal cases. The Report made several crucial recommendations aimed at fixing America’s seriously flawed system. That included the establishment of a wholly independent federal agency to oversee the forensic science community consistent with scientific principles and as objective and unbiased as possible. The NAS report discussed the need for mandatory, standardized certification and accreditation of forensic science education and laboratories and certification of forensic science professionals. The Report also cited the need for institutional independence of public forensic laboratories, which the NAS found often hold a prosecutorial bias.
In 2016, the President’s Council of Advisors on Science and Technology (PCAST) issued its own report, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, reaffirming many of the underlying conclusions of the 2009 NAS report. These reports, along with the seemingly endless litany of major scandals at forensic laboratories nationwide, revealed that the fundamental system for forensic science delivery in the criminal justice system is broken and that structural reform is still urgently needed.
NACDL spearheaded many of the efforts to implement the recommendations and goals of the NAS Report to ensure that forensic evidence used in criminal cases is validated, reliable, and that the reporting of the results do not exceed the scientific limits of that discipline. NACDL convened its own task force and issued a series of recommendations in 2010: Principles and Recommendations to Strengthen Forensic Evidence and Its Presentation in the Courtroom. That document endorsed: (1) forming a central, science-based federal agency that is independent of law enforcement and prosecution agencies; (2) improving the culture of science; (3) adopting a national code of ethics; (4) reinforcing the prerequisite of research; (5) providing greater education; (6) ensuring transparency and discovery; and (7) allocating increased defense resources, particularly for indigent defense services.
NACDL, noting that flawed forensic evidence is the second leading cause of wrongful convictions, has urged Congress to: (1) provide a dedicated funding stream to support the existing National Commission on Forensic Science and either formally separate it from the Department of Justice (DOJ), or ensure that it is not under the exclusive control of law enforcement; (2) establish mandatory accreditation, certification, and proficiency standards; (3) bolster the emerging culture of science and increased transparency in forensic work; and (4) enhance the support for defense attorneys commensurate with the increased prevalence and role of forensic science in criminal cases.
NACDL also played a vital role in several significant historic reviews of flawed forensic science evidence, including the DOJ and Federal Bureau of Investigation’s (FBI) Microscopic Hair Comparison Analysis Review, which was initiated in part due to the NAS Report’s conclusions. NACDL and the Innocence Project partnered with the FBI and the DOJ in their review of criminal cases in which the FBI conducted microscopic hair analysis to identify cases in which FBI hair examiners made scientifically invalid statements in testimony or lab reports. While the review is ongoing, the results so far conclusively documented the extraordinary frequency of exaggerated testimony. In 2007, NACDL partnered with the Innocence Project and the FBI to review comparative bullet lead analysis cases, following the FBI’s admission that its agents potentially gave flawed or misleading testimony in thousands of such cases. In addition, NACDL worked with the DOJ Office of Enforcement Operations to correct the serious injustice caused by the failure to notify thousands of defendants whose cases were affected by the findings of wrongdoing in the 1996 Office of the Inspector General Report and FBI Task Force investigation.
Progress has been made on some of these objectives. But sadly, much of the promise of the 2009 NAS report and its associated recommendations remain unfulfilled, as the 2016 PCAST report attests, and some of that progress is in danger of being rolled back. In 2017, the DOJ announced it would not renew the National Commission on Forensic Science, an advisory committee of scientists, prosecutors, defense lawyers, law enforcement, and judges created in 2013 by the Obama administration to improve the practice and reliability of forensic science. The DOJ also ended plans for an expanded review of FBI testimony in several forensic disciplines that are susceptible of the same types of scientifically invalid statements uncovered in the FBI’s microscopic hair comparison review, leaving open the possibility that similar errors and resulting wrongful conviction will go unremedied.
The NAS Report achieved progress, but it has been slow. Additionally, momentum recently decreased along with an increased resistance to scientific independence and establishing scientifically valid foundations for forensic disciplines by some in law enforcement. NACDL continues to work for enhanced forensic practices, reliability and resources, and is hopeful that the positive changes remain, forward momentum returns, and that there will not be a return to the practices – most importantly, exclusive control of forensic science by law enforcement interests – that led to the high-profile failures that motivated efforts to undertake reform in the first place.
Contacts
Ivan Dominguez, NACDL Senior Director of Public Affairs and Communications, (202) 465-7662 or idominguez@nacdl.org
The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.