Date: March 14, 2017
Re: Comments Concerning Proposed Office of Forensic Science within the DOJ
To: AAFS Board of Directors
From the following AAFS Jurisprudence Section members:
Hon. Christopher Plourd
Hon. Pam King
Hon. Roderick Kennedy
Linda Kenney Baden
Edward J Imwinkelried
The AAFS Board of Directors has asked for review and comments on two pieces of federal legislation concerning (1) the formation of an Office of Forensic Science (OFS) within the Department of Justice (DOJ), and (2) the formation of an Office of Forensic Medicine (OFM) within the Centers for Disease Control and Prevention. This statement is focused on the OFS proposal. Based on our review of the documents provided, more information and significant clarification is needed before we can offer support for many parts of this proposal. Our review has also raised concerns about the scope of the proposal that we urge the Board to consider.
As members of the Jurisprudence Section of the AAFS, we can affirm that forensic science funding is important to us and we support this funding as a critical priority for forensic science improvement. We also want to emphasize that our comments arise from our deep commitment to the advancement of forensic science. It is simply not clear that the proposed changes would accomplish the stated goals, and we fear it is possible that they could actually create more problems for forensic science than they solve, undermining the research, training, and capacity-building that is so greatly needed in the field’s work. We believe the Board should not approve support for this legislation unless and until the questions and issues we raise in this letter are addressed.
The CFSO introduction to the proposals indicates that the rationale behind this change is to increase visibility and funding for forensic sciences. Of particular note is the proposed move of the Office of Investigative Forensic Science (OIFS), currently within the National Institute of Justice (NIJ), to become a separate office within DOJ headed by a political appointee at OFS. We have several concerns about this restructuring. With respect to protection or promotion of funding, we note that forensic science funding is currently administered and safeguarded by career staff at OIFS. There are clear advantages to this arrangement in terms of continuity of expertise, coordination, and relationships with Congress across changes in Administrations. What support can be cited that demonstrates that the proposed change will produce beneficial results with respect to securing funding for forensic sciences?
There are other issues with the purpose and scope of the proposed programs that must be addressed. The CFSO introduction specifically mentions Coverdell funding as a rationale for the proposed restructuring, but there is no discussion of Coverdell in the proposed legislation. Also, we are keenly aware that Coverdell is the only grant program that supports medical examiner offices. It is not clear from the OFS and OFM proposals whether Coverdell would remain solely an NIJ program, please provide more clarification.
In addition, the rationale for including the programs listed in Section II on page 1 is not provided. For example, the Wrongful Convictions Review Grant provides legal services for litigation of cases that may or may not involve forensic science. Why is it included in this list? In addition, the purpose of Section IV (Grants) is unclear. Is this section designed to give jurisdiction to OFS or is it simply identifying the types of grants that OFS would advocate for?
An additional, and perhaps even greater concern, is the implication for this proposed organizational change on the important principle of independence of forensic science. The 2009 National Academy of Sciences report, Strengthening Forensic Science in the United States: A Path Forward, strongly supported the distinction between the interests of the DOJ and the interests of forensic science, noting that “The work of these law enforcement units [i.e., units within DOJ, such as the FBI] 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.” (p. 17) Co-location in NIJ provides some insulation from the conflicts of interests between the needs of law enforcement and the broader needs of forensic science, as discussed in the NAS report. The NIJ Director oversees a large portfolio and traditionally both the Director and the DOJ defer to OIFS for forensic science advice.
The proposal also includes duties that are not related to grants or other forensic science funding, and the rationale for their inclusion is unclear. For example, the duties of the OFS include oversight of the Forensic Science Discipline Reviews, Uniform Language for Testimony and Reports, and the federal forensic science research strategy. These responsibilities are more policy oriented and require resources beyond what is currently presented in the OFS proposal. Why are these non-grant related responsibilities included in this bill?
Finally, we are also particularly concerned about the proposed make-up and responsibilities of the Forensic Science Board. The inclusion of only a single statistician and no representatives of the broader scientific community suggest that this body will not have sufficient access to the expertise and experience that is needed to strengthen the foundation and practice of forensic science. Forensic science gains from being part of a broad array of scientific disciplines that can draw upon a depth of research knowledge and experience. It does not serve the interest of forensic science to close itself off from this valuable input. The proposed Forensic Science Board, if included, requires a more diverse set of stakeholders.
In summary, a more detailed analysis of the need for and implications of the proposed changes is needed, and more careful consideration should be given to the intended scope of the responsibilities and the make-up of the proposed Forensic Science Board. This proposal is a tremendous change and we urge the Board of Directors to carefully consider our questions, concerns, and not to rush deliberation regarding the sole infrastructure providing federal forensic science support.
Dr. Norah Rudin has written a public comment on the government proposal to create an Office of Forensic Science within the Department of Justice: “Putting an office of forensic science under a law enforcement agency if a fundamentally bad idea. This would take us backwards, not move us forward. Additionally, the composition of the board is problematic. It is slanted toward public agencies and provides no voice to independent scientists. Again, this takes us backwards not forward. The problems that the field of forensic science is experiencing is largely due to the insular approach the field has taken historically. Perpetuating this attitude will only perpetuate the problems, not solve them. We need to be reaching out and encouraging an interdisciplinary approach, not circling the wagons. NIST, a scientific and neutral agency, is the appropriate place to house forensic science offices, commissions, groups.”
Bill Richards also has years of medical neglect and medical malpractice by the California Department of Corrections and ‘Rehabilitation’ to deal with in addition to the incarceration compensation. Getting restitution from the state compensation board can still be a non-starter and only allows $100 per day rate. You should know that the San Bernardino DA, Michel Ramos, is on the state board for prisoner compensations. You can read about him in the link below. That is surely a brutal reality and makes Bill’s federal lawsuit all the more necessary.
Thanks to the Charles Smith Blog
Forensics and criminal law are subjects that are increasingly being included in mainstream legal training in the US. There are prestigious law schools that have risen to the challenges that, to some of us, seems obvious. Major changes have occurred in areas of ‘hard’ science since I began testifying in US courts in the 1980’s about human identification via forensic dentistry. Crime lab scandals were not newsworthy. Junk forensics, wrongful convictions and prosecutorial misconduct were of little interest.
In that period, legal tomes about forensic testimony was restricted to just a few very thick, and well worn titles that regularly underwent revisions every so often. Legal scribes from law schools giving narrations on forensic methods during the 60’s and 70’s included James Starrs, Ed Imwinklereid, and Paul Gianelli. The 1980’s and 90’s brought us Michael Saks, Michael Risinger, David H. Kaye, David Faigman, and Bill Thompson. The 90’s up to the New Millenium shows an explosion of legal/forensic expertise in specialized areas related to police sciences, social science statistics, memory and behavioral psychology. Applications of analytical sciences such as DNA, material sciences and chemistry exploded. This phase brought forward Jonathan Koehler Jennifer Mnookin, Erin Murphy, Simon Cole, Brandon Garrett. Currently, if you google ‘law professors and forensic science’, it will bring up pages of teachers at all levels of legal education.
There should be more forensically trained legal faculty
It is noteworthy that the large majority do not possess ‘in-house’ forensic or ‘hard science’ training from police labs or college programs. A few are ex police persons. That’s been a sticky point for any academics when they attempt to wade into courts in criminal cases where the expertise and validity of police science or topics such as forensic DNA are of critical importance for defense purposes. They are delegated to teaching legal newbies, some lawyers, and judges as they write reams of legal and main stream articles and books about their scientific ‘ideals’ within a criminal law concept. Psychology in the areas of mental assessments of defendants, or in the relatively recent areas of human perceptions regarding memory and accuracy of eye witness statements have taken professors into the court system.
The Prosecution’s scientific “team”
Rules of expert testimony and legal procedures allow prosecutors forensic crime lab ‘scientists’ (someone with a BA/MS in forensics which can range from criminology or general chemistry or biology) to scientists (someone with a science PhD), in their employ. You have to notice that ‘forensic’ is tagged with everyone who works in a police crime lab. That can be set at a rather low threshold but it carries the day in court for their being qualified to testify.
The Defense’s scientific “team”
That does not apply to these legal educators/forensics-focused and heavily published professors. In a real sense, for all their lengthy careers and publishing in peer reviewed journals (of course predominantly legal), none of them are actual ‘practitioners’ of police sciences such as fingerprints, blood spatter, ballistics, bitemarks, or other pattern ‘identification’ methods. This rubs against their ever being allowed to testify in the US adversarial court system as defense witnesses. It has been attempted, but has a poor track record of success.
I don’t intend to argue the admissibility of legal experts who exhaustively study subject matters dealing with crime science and human factors. Others are better for that lengthy discussion. What I do know is that Defense experts are often severely restricted from testifying because they are not ‘forensic qualified.’ Other reasons range from ‘never having done a case’ experience to a failure to possess a certain science degree. Please note that most police forensics are not ‘rocket science.’ Crime labs have a long history of training people with only a high school diploma. I often read court transcripts where police officers discuss forensic findings along the lines of ‘circumstantial evidence’ with little more than few years of basic college education with their ‘forensic training’ done by the police themselves. For example: ‘time of death’ determinations (taking a postmortem liver temperature) at a murder scene is commonly taken by someone with a high school diploma.
Why they really get excluded
All this is very procedural, but it is not the only reason for most courtroom doors being ‘closed’ to legal science scholars. A stronger reason is that they are very knowledgeable and are well versed in BOTH science, trained in the law and are teachers. Juries need to hear them. Prosecutors do not.
Make a difference for the future
With the realities of courtroom rules regarding ‘science’ being muffled, what practical purpose do these academic and scholarly law professor really have? They are training law students of the future about science, scientific thinking and developing career long interest in the strengths and weaknesses of science and the posturing of pseudo science.
Hopefully, some of their students will pay attention and later become prosecutors, defense attorneys and policy-makers who are capable of applying a higher level of scrutiny to the meaning of scientific-based ‘justice.’ The current bunch of criminal justice leaders rose to their glass ceilings long before forensics began to grudgingly evolve into some form of ‘science.’ These folks have recently said ‘enough’ already to all those ‘anecdotal’ studies on their success and failure rates of forensic and criminal programs.
N.B. Apologies to anyone I missed naming regarding the early days of legal scientific academia. I know there are many more.
Need some tips about the excessive hope in digital comparisons of a person’s language dialect? This has been going on in the EU for years. Linguist’s now use it for their opinions on refugee status. Who tests them for reliability? The government of course.
Short article making some good points about all this being junk.
Here’s a look at police crime labs around the US abilities to produce timely rape kit testing. One might infer that DNA testing of other crimes and the ‘war on drugs’ has sapped funding capabilities. I don’t hear the US DOJ chief Jeff Sessions pointing this out when he fake news talks on the ‘rise in US crime rates.’
Push to test rape kits has slowed work at state crime labs in Utah, other states
“Utah isn’t unique in its long wait for DNA results — other states are dealing with similar delays as police send in more evidence for testing and new laws mandate testing of all sexual assault kits.
In Idaho, the average turnaround time to test evidence is 352 days, according to laboratory system director Matthew Gamette. It’s taking the lab there about 72 days to screen cases for potential DNA, he said, with an additional 280 days on average at the DNA lab.”
Full article from the Salt Lake Tribune
‘Junk forensic science’ topics continue to show up in the media in conjunction with the growing numbers of overturned convictions assisted by forensic experts. See: The Registry of Exonerations.
Here’s a couple of recent articles. The first talks about the FBI’s disparaged hair matching unit and another about what the top five junk forensic practices are ( includes hair characteristic comparison which is NOT mitochondrial DNA from hair).
This second article runs a short synopsis about bite marks, handwriting analysis, Shaken Baby Syndrome, penile arousal testing, and a few more.
Bite marks are still in play within the US Criminal Justice system.
Nothing is more poignant than to talk to and read about exonerees who had to put up with malingering prosecutors who live their lives as if wrongful convictions do not exist. One might consider this California prosecutor the poster child for the current politicos inhabiting the WH micro climate who have doubled down on this mind set.
Read about thousands of cases in MA that are getting the prosecutorial due process cold-shoulder.
“Prosecutors have made Massachusetts’ drug lab scandal much much worse.“
Thursday marked the official transfer of location of the NRE to the UC Irvine (CA) Newkirk Center for Science and Society. Here are a series of live streaming presentations that represent the purpose and future plans for the NRE. It will continue to do groundbreaking research and criminal justice policy influencing. Here’s is Brandon Garrett’s take on the NRE’s value.
“The National Registry Exonerations is a model for scholarship that can change the world by collecting an sharing information. It is a resource, it has helped countless researchers, and it has helped countless lawyers. Before the Registry, it was hard for anyone to learn of cases that had been reversed on innocence grounds., outside of DNA exonerations as least. Now we have in the U.S. the most remarkable archive of information about exonerations that exists anywhere in the world.”
Samuel Gross, Elizabeth Loftus, Mons Lynch, Shero Thaxton, William Thompson, Maurice Possley, Jon Eldan, Alexandra Natapoff, Barry Scheck, Henry Weinstein, Barbara O’Brien, Erwin Cherminsky, Simon Cole, Rob Warden, Franky Carillo, Brian Banks, Denise Foderaro.
The LiveStream presentations: (1 hour 33 minutes)
Rudin Votes “No” on ‘Office of Forensic Sciences.”
Nora Rudin is a DNA pioneer in the US who has some very pointed comments on the issue of forensic science needing to be independent of prosecutorial and police governmental management influences. Despite what many current police science pundits say to the contrary.
A comment on a proposal being considered by the CFSO – draft legislation that would create an Office of Forensic Science within the Department of Justice (here is a link to the draft as of Feb. 14, 2017):
Putting an office of forensic science under a law enforcement agency if a fundamentally bad idea. This would take us backwards, not move us forward. Additionally, the composition of the board is problematic. It is slanted toward public agencies and provides no voice to independent scientists. Again, this takes us backwards not forward. The problems that the field of forensic science is experiencing is largely due to the insular approach the field has taken historically. Perpetuating this attitude will only perpetuate the problems, not solve them. We need to be be reaching out and encouraging an interdisciplinary approach, not circling the wagons. NIST, a scientific and neutral agency, is the appropriate place…
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