Updates from the National Forensic Science Commission
The National Forensic Science Commission has fully reported on its last two meetings. Of concern, currently there are no practicing private criminal defense attorneys on the Commission. As of meeting ten, the Commission has come up with 14 recommendations to the United States Attorney General. Here are some highlights.
Meeting ten occurred on June 20-21, 2016 in Washington, D.C. The Commission reported that it is their view and position that “the overall accreditation of forensic science service providers could be strengthened by, at a minimum, full compliance with ISO/IEC 17011 standards for all accrediting bodies offering services to forensic science providers.” They further mentioned requiring method validation to include both external sources and studies of the overall performance and reliability, in addition to internal studies of appropriateness. They are recommending both targeted (currently in place by the American Society of Crime Lab Directors knows as ASCLD) and random sampling in the audit process. This is a marked improvement over existing crime lab accreditations now in place.
The Commission also took a stand against “judicial vouching” stating that trial judges should discontinue the practice of declaring a witness to be an expert in the presence of the jury. It stated “This practice has the potential of misleading the jury into believing that the judge is vouching for the witness and the content of the witness’ testimony. However, ruling that a witness may testify as an expert means only that the witness has satisfied the minimum evidentiary requirements to give opinion testimony.”
Meeting 11 occurred on September 12-13, 2016 in Gaithersburg, Maryland. Attorney General Lynch reported the term “reasonable scientific certainty is not to be used. The Department of Justice is directing their forensic laboratories review their policies and procedure to ensure reports and testimony do not use the terms “reasonable scientific certainty”. Prosecutors have also been directed to abstain from such line of questioning.
The Commission discussed research performed on methods to ascertain what conditions produce errors. In a very unflattering light, ASCLD expressed concerns that exposing this research to the legal system would be used to unfairly impugn analysts, labs, or techniques. It is a shame they are concerned with hiding research which can expose limitations of a technique.
The Commission came up with goals for accreditation for forensic science service providers (FSSPs):
- Shorten the time period between assessments.
- Require surveillance visits every year a FSSP does not have an assessment.
- Require that surveillance visits of FSSPs include a review of accredited technical areas.
- Ensure technical assessors are appropriate for the categories of testing for which they are conducting assessments (this should include recent work as an analyst in the discipline).
- Provide continuous training and feedback to assessors.
- Develop standard sampling plans for case record review and case observations/witnessing that consider an FSSP’s volume of casework and number of analysts (plans should include targeted and random sampling of case records).
- Establish and develop specific additional requirements for FSSPs to meet (% of technical reviews, % of blind re-examinations, a stipulation for in-person monitoring and transcript review by FSSP personnel with a mandated frequency, method validation to include both external sources/studies of the overall performance and reliability, requirements for proficiency testing plans that consider volume of casework and number of analysts)
- Incorporate standards approved by recognized sources such as ISO Technical Committee on Forensic Science (ISO TC 272), Standard Development Organizations (SDOs), and the Organization of Scientific Area Committees for Forensic Science (OSAC)
Clearly, the Commission is doing excellent work in laying a bedrock of accountability for the forensic community with its recommendations. We hope that the Trump Administration will see fit to continue with its work, as it is far from complete. We also hope that the Commissioners will see fit to add a much needed voice from the citizen’s perspective by appointing some illustrious and renown defense lawyers to the Commission. A law enforcement perspective is important, but this should not be the only perspective.