History of the Problem
At its best, forensic science can help identify the perpetrator of a crime and help prevent the innocent from being wrongfully convicted. At its worst, it is the second-greatest contributing factor to wrongful convictions.4 As a consequence, not only are innocent individuals imprisoned but dangerous criminals remain free, posing significant risks for public safety. Indeed, those identified as the true perpetrators by post-conviction DNA testing have, as a group, been convicted of at least 81 violent crimes committed while free because of faulty forensic techniques.5 All of these later crimes occurred while the innocent person was either imprisoned or identified as the prime suspect in the criminal investigation.6
In contrast to post-conviction DNA testing, which has been thoroughly studied and subjected to the rigors of scientific peer review, other forms of forensic science continue to have glaring and persistent deficiencies. Because DNA is only available in 5 to 10 percent of violent crimes,7 it is imperative that Congress and the Administration address these scientific shortfalls. With this in mind and pursuant to the Justice for All Act of 2004 (JFAA), Congress and President Bush directed the National Academy of Sciences (NAS) to examine the fundamental underpinnings of forensic scientific evidence and its application to the criminal justice system. In February 2009, the NAS issued the report, Strengthening Forensic Science in the United States: A Path Forward.8
In the report, the NAS concluded that there is an insufficient scientific foundation for many non-DNA forensic science disciplines, and recommended establishing limits for their use and measures of performance where they are lacking.9 The NAS also described the United States forensic system as fragmented and lacking a means through which to foster forensic science advancements.10 Consequently, there is wide variability in the practice of forensic methods, laboratory capacity, oversight, staffing, certification of forensic practitioners, and accreditation of crime laboratories.11 The NAS report recommended a number of changes that would make forensic science as reliable as life and physical sciences, and ensure that forensic science is applied scientifically, consistently, and fairly in the legal system.12 The primary recommendation of the NAS report is the creation of a National Institute of Forensic Science (NIFS).13 The NAS envisions NIFS as an independent, science-based federal agency with strong ties to the forensic science community, but not committed in any way to the current law enforcement system.14
While the National Institute of Justice (NIJ) has been the center of forensic science funding, it did not begin to support forensic science research at the levels required until after the release of the NAS report. Moreover, NIJ’s research was based on the mistaken assumption that the forensic techniques in question were valid. Furthermore, a 2010 NAS report evaluating NIJ’s research program found that the agency allows practitioners to drive research funding practices, further calling into question NIJ’s research and conclusions.15
Recent Congressional hearings on forensic science have focused on identifying an oversight body to coordinate research, standardize forensic techniques, and apply a more scientific framework to the field.16 Members of Congress expressed skepticism about the notion of a NIFS. However, the responsibilities of NIFS can be implemented using existing federal agencies in roles that are in line with their missions to bring the foundation of non-DNA forensic sciences more closely in line with other scientific disciplines and make the U.S. a market leader in forensic science technology. To ensure impartial funding, development, implementation and oversight of forensic science, the National Science Foundation (NSF) should provide research funding, and the National Institute for Standards and Technology (NIST) should develop standards for forensic science methods and practice. Further, if the DOJ is to oversee accreditation of laboratories, certification of forensic practitioners, compliance, and enforcement, lawmakers must ensure transparency and complete independence from the Department’s law enforcement function.
The Senate Judiciary, House Judiciary, and House Science & Technology Committees have demonstrated interest in reforming forensic science in the wake of the NAS report. The House Committee on Science & Technology’s Subcommittee on Technology and Innovation held a hearing on March 10, 2009, less than one month after the release of the report, to discuss the role of NIST in addressing the NAS report’s recommendations. The next week, on March 18, 2009, the Senate Judiciary Committee held a hearing inviting the report’s co-chair, Judge Harry T. Edwards, to discuss its recommendations. On May 13, 2009, the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security held a hearing to gain a similar general understanding of the report. On September 9, 2009, the Senate Judiciary Committee then held a second hearing to examine the report’s recommendations with a broad array of criminal justice stakeholders.
Further, The White House Office of Science and Technology Policy has chartered a Subcommittee on Forensic Science under the National Science and Technology Council, which convenes a group of federal agencies with an interest in forensic science. Its role is to deliberate on how immediate Executive Branch actions might address the NAS report’s recommendations and lay the groundwork for Congressional legislation.
The U.S. has already demonstrated that it can lead in the field of forensic science. Under President Bush, the United States both funded and supported the use of forensic DNA technology. This investment made the U.S. the world leader in DNA technology, while also creating public and private sector jobs. One example is the success of Bode Technology, one of the world's largest forensic DNA analysis firms. In 2010, it sold more than 3.5 million units of a DNA collection device and achieved its greatest sales ever, even in a struggling economy.17 Because fingerprint and firearms toolmarks are collected for use in criminal cases as frequently as DNA,18 a forensic system supported by robust research could open more new market opportunities. Such an investment, especially at this early stage, could yield commercial benefits and help maintain the U.S. leadership position in forensic science technology.