Draft Policy Recommendations by the National Commission on Forensic Science

The National Commission on Forensic Science has released six documents for public review and comment. The Commission’s recommendations, if adopted, will be recommendations to the Attorney General of the United States. However, they may become recognized as best practices for practitioners and courts dealing with forensic evidence.

Attorneys or others who wish to comment on these recommendations can follow the procedures here. Attorneys may be particularly interested in the recommendations on discovery and expert testimony.

The Draft Policy Recommendation on Discovery discusses the importance of bench notes, as well as access to laboratory testing protocols, quality assurance procedures, accreditation and audit reports, proficiency testing results, and internal validation studies. Attorneys can review this post to understand which documents the NC State Crime Laboratory provides through discovery. Other labs or forensic examiners in the state might not provide all of these items. The recommendation compares the discovery provided in civil cases with the unsupported conclusory reports sometimes provided in criminal cases that summarize the results of an unidentified test conducted by an anonymous technician. The recommendations may provide attorneys with additional arguments for access to complete lab reports. The recommendation on discovery also contains important information about the preservation, consumption, and retesting of evidence.

The Draft Policy on Expert Testimony contains important information about limitations that should be placed on expert testimony, including testimony about zero error rates, the statistical basis for a technique, and the use of the word “scientific” in describing non-scientific analysis. The recommendation also calls on courts to not declare a witness to be an “expert witness” in front of the jury because the court’s acknowledgement that an witness is an “expert” may unduly influence the jury’s opinion about that witness’s testimony.

The draft policy recommendations are available here:

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