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:

Peter Neufeld

Barry Scheck

Christine Funk

Hon. Christopher Plourd

Hon. Pam King

Hon. Roderick Kennedy

Linda Kenney Baden

Andrew Sulner

Gil Sapir

Scott Belfry

Chris Fabricant

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.

Funding

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?

Structure

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.

Summary

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.”