Monthly Archives: February 2013

National Commission on Forensic Science to be created

On nearly the four year anniversary of the National Academy of Sciences (NAS) Report which sharply criticized the forensic science system in the United States, the federal government announced the establishment of a National Commission on Forensic Science.

The NAS Report recommended an overhaul of the current forensic system, including urging the establishment of a independent federal agency, the National Institute of Forensic Science. The U.S. Department of Justice and the U.S. Department of Commerce’s National Institute of Standards and Technology (NIST) announced Friday that they will create a national commission to strengthen and enhance the practice of forensic science.

Justice Department and NIST officials will lead the new 30-member commission. Among its members will be forensic scientists, researchers, prosecutors, defense attorneys and judges. Interested stakeholders can apply for appointment to the commission following an announcement of membership criteria in an upcoming Federal Register notice.

Groups of forensic science practitioners and academic researchers administered by NIST will develop discipline-specific practice guidance for federal, state and local forensic science laboratories. The commission will consider these practices and develop policy recommendations for the Attorney General. The commission’s work will help standardize national guidance for forensic science practitioners, develop uniform codes for professional responsibility, and establish requirements for training and certification.

According to a Washington Post article, experts have said NIST-administered guidance groups could replace the ad hoc groups of practitioners who currently establish the practices for each field of forensic evidence. These ad hoc groups have been criticized for not following standard practices, working in secret, and being too closely tied to law enforcement. Critics have said that these weaknesses result in inconsistency in the techniques used by individual crime labs and differences in how forensic examiners testify about results.

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ABA Resolution concerning forensic evidence

The ABA House of Delegates approved a Resolution in 2012 urging judges to consider several factors when determining the manner in which expert testimony is presented in criminal trials. The Resolution and its accompanying report urge attorneys and judges to seek “innovative solutions” to help jurors understand the significance and limitations of scientific evidence, such as altering trial structure to allow expert witnesses for both parties to testify consecutively and  avoiding declaring a witness to be an expert in front of the jury.

The ABA Resolution and report draw heavily from other ABA standards and from the 2009 NAS Report on the state of forensic science in the United States. More information on the landmark NAS Report can be found here.

The ABA report also critiques trial attorneys’ lack of substantive knowledge regarding scientific evidence and their ability to effectively challenge misleading forensic testimony. “Until an elevation in the knowledge base of trial attorneys is achieved,” the ABA report warns, “the adversarial system will continue to falter with respect to the proper presentation of forensic scientific evidence.”

The ABA Resolution lists several areas of concern for testimony by forensic experts. Highlights include:

Use of Clear and Consistent Terminology

The Resolution urges judges to consider “whether expert witnesses use clear and consistent terminology in presenting their opinions.” The report warns that terms such as “match,” “consistent with,” “similar in all respects tested,” and “cannot be excluded as the source of” have no accepted definition or standardized meaning in the scientific community.

Limitations of Forensic Techniques

The Resolution urges judges to consider whether experts present testimony in a way that accurately conveys any limitations in the forensic techniques they employ. The report points out that experts in disciplines such as microscopic hair analysis sometimes exaggerate the reliability of subjective techniques with misleading phrases like “zero error rate,” claiming that these methods are error-free when performed “correctly.” The report also criticizes the use of phrases with no accepted scientific meaning, such as “reasonable scientific certainty.”

Avoiding Claims of Uniqueness

The Resolution also advocates precluding experts from offering explicit or implied claims of uniqueness unless their findings are supported by empirical research. The report notes that fields such as firearms comparison and handwriting analysis often rely on subjective comparison by analysts with no empirical research to validate their techniques. Testimony by such experts gives jurors an impression that such “matches” represent absolute identification. In particular, the report recommends prohibiting experts from testifying that a match has been made “to the exclusion of all others” unless the experts’ methodology has been validated by empirical statistical research.

Although most judges are unlikely to exclude evidence solely on the basis of the ABA Resolution, attorneys may attempt to use the Resolution to limit the scope and impact of expert testimony in their cases. It isn’t clear how much weight individual judges will give the ABA Resolution, or whether they will interpret the Resolution as placing a higher burden on parties seeking to use expert testimony than already required under North Carolina law. Nevertheless, the Resolution provides strong support for attorneys trying to preclude experts from offering misleading testimony about the significance of their findings, and it calls on judges to monitor the presentation of forensic evidence more closely.

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