In the space of a week in September 2016, the Zuckerbergs promised billions of dollars to eradicate disease by the end of the century; Vice President Biden touted enhanced access to clinical trials for the “Cancer Moonshot”; and the President’s Council of Advisors on Science and Technology (PCAST) published the “Report on Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods.”
Picking up where “Strengthening Forensic Science in the United States: A Path Forward” left off in 2009, the PCAST Report shed much needed light on the shortfalls of forensic evidence:
“PCAST concluded that there are two important gaps: (1) the need for clarity about the scientific standards for the validity and reliability of forensic methods and (2) the need to evaluate specific forensic methods to determine whether they have been scientifically established to be valid and reliable. This report aims to help close these gaps for the case of forensic “feature-comparison” methods—that is, methods that attempt to determine whether an evidentiary sample (e.g., from a crime scene) is or is not associated with a potential “source” sample (e.g., from a suspect), based on the presence of similar patterns, impressions, or other features in the sample and the source. Examples of such methods include the analysis of DNA, hair, latent fingerprints, firearms and spent ammunition, toolmarks and bitemarks, shoeprints and tire tracks, and handwriting.”
Decrying the lamentable state of forensic proof, Ninth Circuit Judge Alex Kozinski, a senior adviser to PCAST, admonished: “Among the more than 2.2 million inmates in U.S. prisons and jails, countless may have been convicted using unreliable or fabricated forensic science. The U.S. has an abiding and unfulfilled moral obligation to free citizens who were imprisoned by such questionable means.”
Reasonable minds recoil at a Twentieth “Century of Acceptance” that uncritically embraced unvetted forensics and created an environment ripe for error and bias. But now that we know better, this new century should look askance at us if we perpetuate the seeds of wrongful convictions. Meantime, post-conviction litigation bears the brunt of policing trial forensics in a forum where most petitioners are imprisoned, poor and without counsel.
Criminal justice cannot standstill while science advances. And who is better suited than the Gatekeepers of science to alchemize the lessons of the PCAST Report into actual innocence. In the first published case to take note of the report, Motorola Inc. v. Murray, 147 A.3d 751 (D.C. Ct. App. 2017), where they approved transitioning from the Frye standard to Fed. R. Evid. 702, a concurring judge brought home the Report’s value:
“Fortunately, in assessing the admissibility of forensic expert testimony, courts will have the aid of landmark reports that examine the scientific underpinnings of certain forensic disciplines routinely admitted under Dyas/Frye, most prominently, the National Research Council’s congressionally-mandated 2009 report Strengthening Forensic Science in the United States: A Path Forward, and the President’s Council of Advisors on Science and Technology’s (PCAST) 2016 report Forensic Science in the Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods [hereinafter PCAST Report]. These reports provide information about best practices for scientific testing, an objective yardstick against which proffered forensic evidence can be measured, as well as critiques of particular types of forensic evidence.”
While validity of forensic methods might best be contended in courts, one scholar has put forward the idea of legislative exclusion. Prof. Rory K. Little has suggested that the unreliable proof at the roots of dubious death prosecutions ought to be interdicted, namely, misidentification; false confession; criminal informant testimony; and invalid forensics. This approach becomes compelling at a time when The National Registry of Exonerations has documented nearly two thousand errors.
This article features information about the PCAST Report, its reception by advocates and critics, and related articles, publications and developments concerning the science of innocence.
REPORTS AND MEETINGS
PCAST Documents and Reports (White House Office of Science and Technology Policy)
“On September 20, 2016, PCAST released a Report to the President on Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods.” Full report; References; Request for Information Responses; Blog Post; Forensics Addendum; Additional Information Provided by Stakeholders; Official Responses to the PCAST Report; Presentation of the Report at the January 2017 National Commission of Forensic Science Meeting.
PCAST Past Meetings (White House Office of Science and Technology Policy)
“September 30, 2016, National Academy of Sciences, Washington, DC” Agenda; Webcast; Transcript; Presentations: Forensic Science Update; Written Public Comments.
Report on Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (PCAST 2016)
“Today, the President’s Council of Advisors on Science and Technology (PCAST) released its latest report to the President, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods. “Forensic science” refers to the application of scientific or technical practices to the recognition, collection, analysis, and interpretation of evidence for criminal and civil law or regulatory issues. Developments over the past two decades—including wrongful convictions in which forensic science has played a role and scientific studies of forensic science methods—have called increasing attention to the question of the scientific validity and reliability of some important forms of forensic evidence and of testimony based upon them. The study that led to the report was a response to the President’s question to his PCAST in 2015, as to whether there are additional steps on the scientific side, beyond those already taken by the Administration in the aftermath of a highly critical 2009 National Research Council report on the state of the forensic sciences, that could help ensure the validity of forensic evidence used in the Nation’s legal system.
PCAST concluded that two important gaps warranted the group’s attention: (1) the need for clarity about the scientific standards for the validity and reliability of forensic methods and (2) the need to evaluate specific forensic methods to determine whether they have been scientifically established to be valid and reliable. The study aimed to help close these gaps for a number of forensic “feature-comparison” methods—specifically, methods for comparing DNA samples, bitemarks, latent fingerprints, firearm marks, footwear, and hair.” PCAST Releases Report on Forensic Science in Criminal Courts, White House Blog, Sept. 20, 2016. Microsite includes: Full Report; References (2100 entries); Request for Information Responses; Blog Post.
Strengthening Forensic Science in the United States: A Path Forward (NRC 2009)
“In this report, The National Academy of Sciences’ Committee on Identifying the Needs of the Forensic Science Community fulfills the congressional charge of providing recommendations on policy initiatives that must be adopted in any plan to improve the forensic science disciplines and to allow the forensic science community to serve society more effectively. The committee reached a consensus on the most important issues now facing the forensic science community and medical examiner system, producing 13 recommendations to address these issues. The recommendations are intended to address the following deficiencies in the forensic science enterprise in the United States: under-resourcing that has created laboratory backlogs and undermined the quality of the work done; lack of a unified strategy for developing a forensic science research plan across Federal agencies; and multiple types of practitioners with different levels of education, training, professional cultures, and standards for performance.
The fragmented nature of forensic science in America increases the likelihood that the quality and interpretation of evidence presented in court will vary unpredictably among jurisdictions. The committee’s key recommendation for addressing these deficiencies is for Congress to establish and appropriate funds for an independent Federal entity, the National Institute of Forensic Science (NIFS). This federally funded independent body will oversee and direct the forensic disciplines in the Nation. The other recommendations in this report are linked to the creation of the NIFS; however, even if the creation of the NIFS is impeded, the core ideas and principles in each of the other recommendations should be pursued. They pertain to standardized terminology and reporting; more and better research; best practices and standards; quality control, assurance, and improvement; codes of ethics; improved education and training; the medicolegal death investigation system; automated fingerprint identification system interoperability; and the linking of forensic science disciplines to homeland security.”
RESPONSES TO PCAST REPORT
AFTE Response to the September 2016 PCAST Report (AFTE Oct. 31, 2016)
“In September, 2016 the President’s Council of Advisors on Science and Technology (PCAST) issued a report titled “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods.” As the leading professional organization for practitioners of forensic firearm identification, the Association of Firearm and Tool Mark Examiners (AFTE) acknowledges the challenge faced by the PCAST to understand the scientific field of comparative sciences from their stated brief review of the literature. AFTE strongly agrees with the premise that additional ongoing structured research strengthens the foundational and applied validity of firearm identification, as well as endeavors to reduce the effects of cognitive bias and subjectivity. However, we cannot overstate our disappointment in the PCAST’s choice to ignore the research that has been conducted.”
Comments on: President’s Council of Advisors on Science and Technology Report to the President Forensic Science in Federal Criminal Courts: Ensuring Scientific Validity of Pattern Comparison Methods (FBI Sept. 20, 2016)
“The FBI agrees with the authors of the President’s Council of Advisors on Science and Technology (PCAST) report that forensic science plays a critical role in the criminal justice system, and therefore needs to be held to high standards. Further, the FBI agrees with the PCAST report as well as the 2009 National Research Council report (2009 NAS report) that significant funding is needed to develop stronger ties between the academic research community and the forensic science community. It is inherent within science that over time, our knowledge of a subject evolves. It is critical that continued research be pursued in order to ensure that forensic science meets the high standards necessary to be used in a court of law. However, the FBI disagrees with many of the scientific assertions and conclusions of the report. The report makes broad, unsupported assertions regarding science and forensic science practice. For example, the report states that “the only way” to establish “validity as applied” is through proficiency testing, and requires a measurement of how often the examiner gets the correct answer, which is fundamentally at odds with a report of the National Academy of Sciences.”
IAI Response to the Report (IAI 2016)
“It is the position of the IAI [International Association for Identification] that evaluations of a forensic evidence type are only accurate and reliable if an understanding of the discipline is a part of the process. The PCAST committee did not sufficiently include forensic science experts, and it is evident that the input of the forensic science community was not sufficiently regarded. Experts, including IAI members, provided information related to the methods, basis and research conducted in these fields that was not fully presented or addressed in the report.”
Innocence Project Applauds President Obama’s Science Advisors’ Landmark Report Calling for Essential Improvements to Forensic Disciplines, Innocence Project Press Release, Sept. 20, 2016
“The Innocence Project applauds the President’s Council of Advisors on Science and Technology (PCAST) for its landmark report released today evaluating forensic disciplines and calling for more scientific research to establish the validity of many methods. The report urges the National Institute of Standards and Technology (NIST) to evaluate the foundational validity of all current and future forensic disciplines and recommends essential research to improve forensic methods so that they consistently produce accurate results. PCAST also expressed concern about the accuracy of testimony before criminal courts and emphasized that the attorney general must be careful to limit testimony and reports to those which have been demonstrated to be scientifically valid. Finally they urged judges to exercise their gate-keeping function and consider the absence of relevant empirical studies when deciding the admissibility of expert testimony.”
Midwestern Association of Forensic Scientists Response to PCAST Report (MAFS Dec. 12, 2016)
“The Midwestern Association of Forensic Scientists (MAFS) would like to first acknowledge that the PCAST report makes some very good points that should be commended. Among many of the reports suggestions to the forensic science and legal communities are to strengthen “foundational validity”, strengthen the measurement of uncertainty in conclusions, increase clarity in testimony, avoid scientifically indefensible claims, abate contextual bias and eliminate conformational bias. These suggestions are noteworthy and common goals of not only MAFS, but we would posit, all Forensic Scientists. Where we believe the report fell short is to first not recognize the valuable contribution forensic science has provided to the criminal justice system. Many lives have been saved and victims vindicated by the work forensic scientists do every day. Secondly, as with any scientific profession we recognize that our science can always be improved, but for PCAST to broadly characterize it as lacking foundational or scientific validity is capricious. PCAST might not agree with the approach of much of the foundational research, but that does not discount that a considerable amount of research has been completed in each one of the disciplines targeted by this report.”
National District Attorneys Association Letter to President Obama (NDAA Nov. 16, 2016)
“On behalf of the National District Attorneys Association (NDAA), the nation’s largest prosecutor organization, representing 2,500 elected and appointed District Attorneys across the United States, as well as 40,000 assistant district attorneys, I [Michael A. Ramos, President, National District Attorneys Association] write to you today regarding the Report to the President-Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (“the Report’). The NDAA takes issue with, and has substantial concern about, the logic of the report and the manner in which it portrays several forensic disciplines.” See also National District Attorneys Association Slams President’s Council of Advisors on Science and Technology Report (NDAA Sept. 2, 2016).
Position Statement on the PCAST Report (ACFSL [American Congress of Forensic Science Laboratories] Sept. 21, 2016)
“Forensic science is an applied science. To argue that it can improve is honorable. To broadly characterize it as lacking scientific validity without proper justification is irresponsible and inaccurate. The work, for example, to add probabilistic studies to our existing validations, to standardize wording for clarity in testimony, to strengthen the communication of uncertainties in conclusions, and to protect against the negative influences of cognitive bias are to be applauded. Yet these are part of an ongoing effort by the forensic science community itself to evolve as all occupations do. And they are ultimately elevating the professionalism with which forensic science is practiced.”
President’s Council of Advisors on Science and Technology (PCAST) Issues Major Forensic Science Report; Calls for Stronger Scientific Standards, NACDL Press Release, Sept. 20, 2016
“”We have known for years now that law enforcement has overstated the validity and accuracy of forensic science and has obtained convictions based on these overstatements, including the convictions of innocent people. This critically important new report released today offers further evidence of the pervasive use of flawed analysis erroneously presented as grounded in science,” said National Association of Criminal Defense Lawyers (NACDL) President Barry J. Pollack. “If the recommendations in this report are followed, we will have trials where testimony is based on actual science, ensuring that flawed science does not derail what is supposed to be an unbiased search for the truth.””
President’s Council of Advisors on Science and Technology (PCAST) Report, AAFS News Release, Oct. 5, 2016
“The American Academy of Forensic Sciences [AAFS] is a multi-disciplinary professional organization with a major objective of improving practice within the field of forensic science. The organization recognizes the need for improvement, where needed, and view the findings in the President’s Council of Advisors on Science and Technology (PCAST) report as notice of needed validation and improvement. While the Academy does not endorse every statement within the PCAST report, we appreciate the efforts of PCAST to clarify the scientific meaning of validity with respect to feature comparison analysis. Several Academy members were invited to present information to PCAST and other members supplied comments concerning research and current practices. PCAST was given an enormous task with time restrictions to review very broad subjects and may not have had the opportunity to evaluate additional information for inclusion in the report. The PCAST report is an important start to the discussion of scientific validity and we look forward to continuing that discussion with the larger community of forensic science practitioners.”
Response to the President’s Council of Advisors on Science and Technology (PCAST) Call for Additional References Regarding Its Report (NIST Dec. 14, 2016)
“The Firearms and Toolmarks Subcommittee of OSAC fundamentally disagrees with the conclusions regarding the firearm and toolmark identification discipline presented in the PCAST report. Four major points have been put forth in this response. First, we disagree with the premise that a structured black-box study is the only useful way to gain insight into both the foundations of firearm and toolmark identification and examiner error rates. Taken collectively, the published studies support the underlying principles of firearm and toolmark examination and the fact that examiner error rates are quite low. PCAST’s critique of these studies included several misunderstandings. Second, PCAST’s dismissal of methods employing a subjective component discounts the core scientific methods that have been used for hundreds of years. Third, PCAST misunderstands and misquotes the AFTE [Association of Firearm and Tool Mark Examiners] Theory of Identification. PCAST’s summary of the AFTE Theory of Identification leaves out important provisions. Fourth, CAST minimizes the value of training and experience. The training received by firearm examiners includes both subjective and objective components and is comparable to the domain-specific rigor of other applied scientific fields. We do not agree that firearm identification “…falls short of the criteria for foundational validity.” However, we do agree that a hallmark of any scientific endeavor is ongoing research and technology development. Indeed, our subcommittee, which is tasked with writing standards and providing guidance to the profession, would not exist if it was believed that the field of firearm identification is flawless and requires no improvement. As such, we are hopeful that the path forward from the PCAST report is a renewed commitment to research in the forensic sciences, continued testing of foundational principles, and a more robust collaboration between the academic and forensic practitioner communities.”
White House Advisory Council Report Is Critical of Forensics Used in Criminal Trials, Wall St. J., Sept. 20, 2016
“In a statement, Attorney General Loretta Lynch said the Justice Department had taken unprecedented steps to strengthen forensic science, including investments in research, draft guidance to lab experts when they testify in court and “reviews of forensic testimony in closed cases.” “We remain confident that, when used properly, forensic science evidence helps juries identify the guilty and clear the innocent, and the department believes that the current legal standards regarding the admissibility of forensic evidence are based on sound science and sound legal reasoning,” Ms. Lynch said. “While we appreciate their contribution to the field of scientific inquiry, the department will not be adopting the recommendations related to the admissibility of forensic science evidence.””
Addressing the Evidentiary Sources of Wrongful Convictions: Categorical Exclusion of Evidence in Capital Statutes, 37 Sw. L. Rev. 965 (2008)
“After two decades of powerful “wrongful conviction” cases stimulated by new DNA science, we can now categorize the sources of error across dozens if not hundreds of exonerations. The author [Rory K. Little], a former prosecutor, is neither a death penalty abolitionist nor a disbeliever of convictions – many convictions are “very right indeed”. Nevertheless, at least four of the known sources of wrongful conviction fall into categories we can define and, perhaps, do something about: (1) eyewitness misidentifications; (2) false confessions; (3) “jailhouse snitches” (or more broadly, criminal informants); and (4) “junk” (i.e., unvalidated) science. Yet we do not simply ban these categories of evidence from criminal cases. Instead, we propose only procedural screens, which if successfully navigated, still allow some instances of the questioned types of evidence to be admitted. But in cases with wrenching facts, emotion may overwhelm “screens” such as jury instructions or expert testimony designed to narrow the jury’s consideration of questionable evidence.”
Crime Lab in the Age of the Genetic Panopticon (Book Review), SSRN (2017)
“”Scientific evidence really nails this man to the wall,” the Harris County, Texas prosecutor told the jurors in closing statements. At trial, George Rodriguez claimed he was innocent and that he had been working a factory the day of the crime. The prosecutor emphasized, however, that the blood type of swabs taken from the victim showed that Rodriguez did commit the crime and that a hair from the crime scene matched him. But seventeen years later, the same hair was tested again, this time using DNA analysis, and the evidence cleared Rodriguez and ultimately led to the crime crime lab being shut down and recreated. The Rodriguez case illustrates why the crime lab has entered a time of crisis. I will discuss that case and the larger story of the transformation of the Houston lab, to introduce the first of three wonderful new books that I review here: Sandra Guerra Thompson’s Cops in “Lab Coats: Curbing Wrongful Convictions Through Independent Forensic Laboratories.” Second, I turn to Erin Murphy’s book, “Inside the Cell: The Dark Side of Forensic DNA,” to explore Murphy’s compelling account of why DNA testing is no panacea for these growing problems and may instead actually magnify some of them. These failings raise the larger question whether improved research to support forensic disciplines, national regulation regarding the quality and standards for labs, and constitutional criminal procedure to remedy the poor litigation of forensics in the courtroom can help to address the failings of our crime labs. I suggest that efforts to improve research, regulation, and criminal procedure are beginning to show promise, but that much remains to be done. Third, I will discuss Adam Benforado’s book, “Unfair: The New Science of Criminal Injustice, which looks broadly at the role of social science and criminal law, but focusing here on cognitive research and expert evidence. Finally, I will discuss how advances in scientific research and technology will reshape the crime lab of the future, creating new challenges and opportunities for criminal justice.”
Empirical Research Agenda for the Forensic Sciences, 106 J. Crim. L. & Criminology 1 (2016)
“After the National Academy of Sciences issued a stunning report in 2009 on the unscientific state of many forensic science subfields, forensic science has undergone internal and external scrutiny that it had managed to avoid for decades. Although some reform efforts are underway, forensic science writ large has yet to embrace and settle upon an empirical research agenda that addresses knowledge gaps pertaining to the reliability of its methods. Our paper addresses this problem by proposing a preliminary set of 14 empirical studies for the forensic sciences. Following a brief discussion of the courtroom treatment of forensic science evidence, we sketch a series of studies that should be conducted to increase our understanding of what forensic examiners are doing, how accurately they are doing it, and how cognitive bias may affect the work product. We also propose several studies that examine how the specific questions examiners are asked might affect the validity and persuasiveness of examiners’ responses. We conclude by affirming the importance of developing a research culture within the forensic sciences that includes a commitment to conducting, participating in, and relying upon high quality empirical research.”
Federal Role in the Innocence Movement in America, 33 J. Contemp. Crim. Justice 61 (2016)
“Despite its small contribution to the ranks of the exonerated, and more broadly its relatively small share of all criminal cases, the federal government has played a distinct and important role in fostering and shaping the innocence movement. This article recounts the various ways in which the federal government has done so: through high-profile measures to recognize the reality of wrongful convictions, direct funding of innocence work, use of federal purse strings to shape criminal justice policy, setting an example through legislation on matters as diverse as access to post-conviction DNA testing and compensating the wrongly convicted, and leadership on issues such as the problems with the forensic sciences. The article concludes that, moving forward, the committed involvement of the federal government will remain important, especially in tackling such challenging problems as flawed forensic sciences and ensuring financial resources for innocence advocates.”
Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1 (2009)
“This is the first study to explore the forensic science testimony by prosecution experts in the trials of innocent persons, all convicted of serious crimes, who were later exonerated by post-conviction DNA testing. Trial transcripts were sought for all 156 exonerees identified as having trial testimony by forensic analysts, of which 137 were located and reviewed. These trials most commonly included testimony concerning serological analysis and microscopic hair comparison, but some included bite mark, shoe print, soil, fiber, and fingerprint comparisons, and several included DNA testing. This study found that in the bulk of these trials of innocent defendants – 82 cases or 60% – forensic analysts called by the prosecution provided invalid testimony at trial – that is, testimony with conclusions misstating empirical data or wholly unsupported by empirical data. This was not the testimony of a mere handful of analysts: this set of trials included invalid testimony by 72 forensic analysts called by the prosecution and employed by 52 laboratories, practices, or hospitals from 25 states. Unfortunately, the adversarial process largely failed to police this invalid testimony. Defense counsel rarely cross-examined analysts concerning invalid testimony and rarely obtained experts of their own. In the few cases in which invalid forensic science was challenged, judges seldom provided relief. This evidence supports efforts to create scientific oversight mechanisms for reviewing forensic testimony and to develop clear scientific standards for written reports and testimony. The scientific community can through an official government entity promulgate standards to ensure the valid presentation of forensic science in criminal cases and thus the integrity and fairness of the criminal process.”
Machine Testimony, SSRN (2017)
“Machines play increasingly crucial roles in establishing facts in legal disputes. Some machines convey information — the images of cameras, the measurements of thermometers, the opinions of expert systems. When a litigant offers a human assertion for its truth, the law subjects it to testimonial safeguards — such as impeachment and the hearsay rule — to give juries the context necessary to assess the source’s credibility. But the law on machine conveyance is confused; courts shoehorn them into existing rules by treating them as “hearsay,” as “real evidence,” or as “methods” underlying human expert opinions. These attempts have not been wholly unsuccessful, but they are intellectually incoherent and fail to fully empower juries to assess machine credibility. This Article seeks to resolve this confusion and to offer a coherent framework for conceptualizing and regulating machine evidence. First, it explains that some machine evidence, like human testimony, depends on the credibility of a source. Just as so-called “hearsay dangers” lurk in human assertions, “black box dangers” — human and machine errors causing a machine to be false by design, inarticulate, or analytically unsound — potentially lurk in machine conveyances. Second, it offers a taxonomy of machine evidence, explaining which types implicate credibility and how courts have attempted to regulate them through existing law. Third, it offers a new vision of testimonial safeguards for machines. It explores credibility testing in the form of front-end design, input and operation protocols; pretrial disclosure and access rules; authentication and reliability rules; impeachment and courtroom testing mechanisms; jury instructions; and corroboration rules. And it explains why machine sources can be “witnesses” under the Sixth Amendment, refocusing the right of confrontation on meaningful impeachment. The Article concludes by suggesting how the decoupling of credibility testing from the prevailing courtroom-centered hearsay model could benefit the law of testimony more broadly.”
Motivated Cognition and Juror Interpretation of Scientific Evidence: Applying Cultural Cognition to Interpretation of Forensic Testimony, 120 Penn St. L. Rev. Penn Statim 1 (2016)
“This paper reports the results of a study investigating how jurors interpret and digest scientific evidence when it is presented to them in a trial setting and how differences in juror attitudes and education influence interpretation of scientific evidence. The study involved a sample of mock jurors recruited from Amazon Mechanical Turk (n=91). Study subjects each viewed a transcript of a mock legal case involving DNA evidence. Results suggest that when presented with conflicting expert testimony, jurors will interpret evidence in a way that is consistent with pre-existing attitudes or beliefs (such as political predispositions). Importantly, results suggest that a juror’s ability to do this and therefore the polarization between jurors of different political pre-dispositions increases as level of education increases. For jurors classified as Conservative, as education levels increased, the prosecution expert was rated as more credible and the defendant was found guilty more often. For jurors classified as Liberal, as education levels increased, the prosecution expert was rated as less credible and the defendant was found guilty less often. Theoretical and practical implications of these findings are discussed.”
Persistent Forensics Lab Problems Undermine Faith in Our Criminal Justice System, Heritage Foundation Lecture, Jan. 21, 2016
“Forensics scientists are not simply an arm of the prosecution team, yet some forensics examiners act as if their only job is to see to it that the defendant gets convicted. This can sometimes lead to tragic results. Scientific evidence can be very powerful evidence and, properly employed, a prosecutor’s ace in the hole. But when forensics experts tamper with or fabricate evidence, utilize shoddy testing procedures, testify about areas outside their expertise, overstate the value of their testimony, or present unsupportable scientific conclusions in order to obtain a conviction, their actions will likely lead to an injustice in the particular case and hasten the arrival of the day when judges and jurors no longer trust the government’s experts. That would indeed be a dark day, and if it does come, the government will have only itself to blame.”
President’s Role in Advancing Criminal Justice Reform, 130 Harv. L. Rev. 811, 862 (2017)
“Strengthening the forensic sciences is a complex challenge that will continue to require work and a sustained commitment on the part of the federal government as well as the broader forensic science, legal, and judicial communities. Ongoing work to develop a research and development agenda for the forensic sciences will require the continued collaboration of federal, state, local, and tribal governments; academia; law enforcement; and industry experts to advance the scientific underpinnings of the forensic evidence and analyses used in courtrooms around the country.”
Prosecutors Respond to Calls for Forensic Science Reform: More Sharks in Dirty Water, 126 Yale L.J. F. 348 (2017)
“In September 2016, the President’s Council of Advisors on Science and Technology (PCAST) released a report questioning the validity of a number of forensic science techniques routinely offered as evidence (“PCAST Report”). This report raises familiar issues and recommendations. In 2000, the National Research Council (NRC) released Strengthening Forensic Science in the United States: A Path Forward, a report on the state of forensic science (“NRC Report”). The NRC Report found that numerous forensic science disciplines relied on deficient scientific foundations, interpretative procedures lacked rigor, analysts took inadequate measures to avoid error and bias, and forensic examiners testified with unwarranted certainty. Research suggests that the NRC Report has had a marked impact on defendants’ awareness of the fallibility of “soft” forensic disciplines, which has led to a number of post-conviction challenges to forensic evidence. Unfortunately, these challenges have rarely been successful. Perhaps as a result, forensic disciplines have advanced little in the intervening seven years to address the NRC Report’s concerns. Initial reactions to the PCAST report from the law enforcement community leave little hope that it will inspire any more reform than the NRC Report has. In the wake of the PCAST report, several law enforcement officials and organizations have commented on the findings and recommendations.”
Research: Publication Bias and the Canonization of False Facts, eLife 2016;5:e21451 (2016)
“Science is facing a “replication crisis” in which many experimental findings cannot be replicated and are likely to be false. Does this imply that many scientific facts are false as well? To find out, we explore the process by which a claim becomes fact. We model the community’s confidence in a claim as a Markov process with successive published results shifting the degree of belief. Publication bias in favor of positive findings influences the distribution of published results. We find that unless a sufficient fraction of negative results are published, false claims frequently can become canonized as fact. Data-dredging, p-hacking, and similar behaviors exacerbate the problem. Should negative results become easier to publish as a claim approaches acceptance as a fact, however, true and false claims would be more readily distinguished. To the degree that the model reflects the real world, there may be serious concerns about the validity of purported facts in some disciplines.”
Scientific Fraud, 46 Crim. L. Bull. 1313 (2010)
“Although scientific fraud is rare, when it occurs, it needs to be identified and documented. This article discusses two of the most notorious cases in forensic science. Part I focuses on the misconduct of Fred Zain, a serologist with the West Virginia State Police crime laboratory and later with the County Medical Examiner’s laboratory in San Antonio, Texas. Part II examines the misconduct of Joyce Gilchrist, a forensic examiner with the Oklahoma City Police Department.”
‘Shifted Science’ and Post-Conviction Relief, 8 Stan. J. Civ. Rts. & Civ. Liberties 259 (2012)
“Of the many known causes of wrongful convictions, perhaps the most complex and diverse is junk science. We explore here a long-overlooked subset of that category and ask the question: What can be done to cure the injustice of a conviction that was based on scientific testimony that may have been accepted in the relevant scientific community at the time of trial, but has since been completely repudiated? In such an instance, a defendant remains in prison even though the evidence that served as the basis of his conviction has been renounced. After describing the problem and conducting a review of common post-conviction claims- and the reasons they fail in this situation- this article argues that state courts must allow defendants in this unique bind to file new evidence claims to obtain relief. Because new evidence is, as of now, not recognized as a viable basis for a federal constitutional claim, defendants will not have easy recourse in federal habeas corpus petitions, and it is especially crucial that state courts ensure that their rules for new trial motions on the basis of new evidence are broad enough to cover the important category of people discussed here. The article concludes by proposing that federal courts could provide relief to such innocent defendants on habeas if they embrace expansive interpretations of a person’s right to be free from unjust incarceration, and they should do so in order to continue to serve as a check on state court failures causing manifest injustice.”
Trial by Machine, 104 Geo. L. J. 1245 (2016)
“This Article explores the rise of “machines” in criminal adjudication. Human witnesses now often give way to gadgets and interpretive software, juries’ complex judgments about moral blameworthiness give way to mechanical proxies for criminality, and judges’ complex judgments give way to sentencing guidelines and actuarial instruments. Although mechanization holds much promise for enhancing objectivity and accuracy in criminal justice, that promise remains unrealized because of the uneven, unsystematic manner in which mechanized justice has been developed and deployed. The current landscape of mechanized proof, liability, and punishment suffers from predictable but underscrutinized automation pathologies: hidden subjectivities and errors in “black box” processes; distorted decision-making through oversimplified — and often dramatically inaccurate — proxies for blameworthiness; the compromise of values protected by human safety valves, such as dignity, equity, and mercy; and even too little mechanization where machines might be a powerful debiasing tool but where little political incentive exists for its development or deployment. For example, the state promotes the objectivity of interpretive DNA software that typically renders match statistics more inculpatory, but lionizes the subjective human judgment of its fingerprint and toolmark analysts, whose grandiose claims of identity might be diluted by such software. Likewise, the state attacks the polygraph as an unreliable lie detector at trial, where results are typically offered only by defendants, but routinely wields them in probation revocation hearings, capitalizing in that context on their cultural status as “truth machines.” The Article ultimately proposes a systems approach – “trial by cyborg” – that safeguards against automation pathologies while interrogating conspicuous absences in mechanization through “equitable surveillance” and other means.”
Brief History of Forensics, Washington Post, Apr. 21, 2015
“This was initially part of my four-part series on the use of bite mark evidence in the courts. We cut it because the series was already pretty long. But I [Radley Balko] think it provides some useful context for these alarming stories we’re seeing today.”
Calls for Limits on ‘Flawed Science’ in Court are Well-Founded, Washington Post, Sept. 20, 2016
“In a remarkable report released this morning, the White House’s Council of Advisors on Science and Technology prominently called on prosecutors to do just that: stop using unreliable forensics and stop making unscientific claims about the forensics. The administration’s recommendations are an important step toward safeguarding forensics and preventing tragic wrongful convictions.”
Cataclysm or Bump in the Road? What The PCAST Report Means for the Future of Forensic Evidence, Judicial Edge (Nat’l Jud. College), Dec. 16, 2016
“A government report questioning the validity of many kinds of forensic evidence rattled the judiciary when it was released in September. The report called into question several forensic practices, such as fingerprinting, that have long been used to send people to prison or acquit them. Now crime-scene experts and judges are weighing in on what the report’s findings mean. Some say judges need to heed its warnings while others argue that the findings should mostly be ignored.”
Corrupted Evidence: How the Department of Justice Is Blocking Forensic Evidence Reform, Counterpunch, Oct. 6, 2016
“Compassionate Americans concerned about the plight of wrongfully convicted citizens – folks who want our criminal justice system to operate fairly and accurately – should be outraged by the Department of Justice’s pigheaded rejection of fundamental, far-reaching forensic science evidence reform.”
DOJ Proposed to Create and Office of Forensic Science and Forensic Science Board Within the Department, Forensics Forum, Feb. 23, 2017
“”The mission of the Office of Forensic Science is to strengthen and promote
the use of forensic science within the judicial system by supporting forensic science service providers, as they continually improve the validity, quality, and practice of forensic science through innovative solutions that focus on research and development, testing and evaluation, technology, information exchange, training and capacity building for the forensic infrastructure.”” See Proposed CFSO Legislation to Create an Office of Forensic Science at the Department of Justice (CFSO 2017).
FBI Admits Flaws in Hair Analysis Over Decades, Washington Post, Apr. 18, 2015
“The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000. Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence. The cases include those of 32 defendants sentenced to death. Of those, 14 have been executed or died in prison, the groups said under an agreement with the government to release results after the review of the first 200 convictions.”
FBI and DOJ Vow to Continue Using Junk Science Rejected by White House Report, Intercept, Sept. 23, 2016
“Although a report released this week by the President’s Council of Advisors on Science and Technology concludes that there is scant scientific underpinning to a number of forensic practices that have been used, for years, to convict thousands of individuals in criminal cases, the U.S. Department of Justice has indicated that it will ignore the report’s recommendations while the FBI has blasted the report as “erroneous” and “overbroad.””
“For dozens of years, criminal prosecutions have relied on junk science. Forensic science, properly applied, can actually provide matches that identify suspects. But it’s not properly applied. In the hands of the DOJ, forensic evidence examination is a closed loop. Outside scientists have been granted access to the DOJ’s DNA work, but everything else — from fingerprints to hair samples — has been locked away in the government’s database.
Still, the DOJ insists its science is solid, something it bases on confirmation bias. The matches determined in its forensic labs are “scientifically certain” because the DOJ’s expert witnesses have said so in court. Not only are outside scientists locked out of examining evidence and forensic processes, but defense lawyers are as well.”
Fine Art of Sniffing Out Crappy Science, Chronicle of Higher Education, Jan. 16, 2017
“Carl T. Bergstrom and Jevin West, a pair of scientists at the University of Washington, think it’s time to arm students with boots and shovels. They have published the outline of a course, titled “Calling Bullshit,” which would try to teach how to spot bad data and misleading graphs at a time when bending statistics has become a popular art form. “Pending approval from the administrative powers-that-be at the University of Washington, we hope to offer the seminar in the near future,” they wrote on a website they built for the course. “In the meantime, connoisseurs of bullshit may enjoy the course syllabus, readings, and case studies that we have lovingly curated.””
Forensic Evidence Largely Not Supported by Sound Science – Now What?, The Conversation, Dec. 6, 2016
“This fall, the President’s Council of Advisors on Science and Technology (PCAST) released its own report on forensic science. It’s a more pronounced acknowledgment that the discipline has serious problems that require urgent attention. Some scientific and legal groups are outraged by or doubtful of its conclusions; others have praised them. As someone [Jessica Gabel Cino] who has taught forensic evidence for a decade and dedicated my legal career to working on cases involving forensic science (both good and bad), I read the report as a call to address foundational issues within forensic disciplines and add oversight to the way forensic science is ultimately employed by the end user: the criminal justice system.”
Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, SciPo, Dec. 13, 2016
“The President’s Council of Advisors on Science and Technology (PCAST) issued a report, Forensic Science in Criminal Courts, which examines the current state of forensic science used throughout the legal system. For the various forensic science methods listed below, the report synthesizes the current literature in order to determine the scientific validity of those methods. It also compares the validity of certain forensic tests to claims made by expert witnesses introducing them in a courtroom. The report concludes by offering recommendations to the Federal government for strengthening and promoting forensic science.”
[email protected] 2016: Practitioners and Researchers Meet at a Critical Time for Forensic Science, NIST News, Dec. 6, 2016
“On November 8th and 9th, 2016, experts gathered for the fourth biennial Forensics @ NIST conference, where scientists from the National Institute of Standards and Technology (NIST) presented their latest research on ballistic toolmarks, fingerprints, digital forensics, trace evidence, DNA profiling, and more. In addition, experts from the NIST-funded Center for Statistics and Applications in Forensic Evidence discussed their efforts to bring new probabilistic methods to bear on forensic evidence.”
How DNA Evidence Went From Airtight to Error-Prone, Bloomberg View, Nov. 22, 2016
“Blind faith in any technology can be dangerous — especially when it comes to areas of forensic science such as DNA fingerprinting. For example, if police have “DNA evidence” against a suspect, most juries will assume that’s proof of guilt. But while the technology for analyzing DNA has become vastly more sensitive since it was first introduced in courts in the 1990s, crime labs are working with ever more minute traces — sometimes just a few molecules — and drawing inconsistent or erroneous conclusions from them. In fact, there’s good reason to believe DNA evidence has sent people to prison for crimes they didn’t commit. That’s the conclusion of a recent report commissioned by the President’s Council of Advisors on Science and Technology (PCAST), which called into question the increasingly common practice of analyzing mixtures of DNA from several individuals. Police can now collect DNA not only from blood stains and other bodily fluids, but from traces of cells left behind when people touch door handles, guns or other objects associated with crime scenes. These so-called “touch DNA” samples often include a mixture of genetic material from multiple people who handled those items.”
Incredibly, Prosecutors Are Still Defending Bite Mark Evidence, Washington Post, Jan. 30, 2017
“As of today, bite mark evidence has led to more than two dozen wrongful arrests or convictions. Two men sentenced to death on bite mark evidence were later exonerated by DNA testing. Multiple proficiency tests have shown that bite mark analysts can’t even agree on whether marks on human skin were made by human teeth or teeth at all, much less agreement on which set of teeth made them. There are two underlying assumptions that need to be true in order for bite mark evidence to be valid — that the marks we make when we bite are unique to us and that human skin is capable of recording those marks in a way that allows analysts to distinguish them. So far, there is no scientific research to support either assumption, and the research that has been done suggests both claims are false. Bite mark evidence has been strongly criticized by several scientific bodies, including the National Academy of Sciences (NAS) and, most recently, by the President’s Council of Advisors on Science and Technology (PCAST). The Texas Forensic Science Commission, a body convened specifically to review the validity of questionable fields of forensics, recommended a moratorium on the use of bite mark analysis in court.
And yet to date, not a single court in the United States has upheld a challenge to bite mark evidence. Every time a defendant has challenged it, the court has ruled the evidence admissible. The PCAST report provided one of the harshest criticisms yet, finding that not only is there no scientific research to support the idea that bite marks can be matched to one person to the exclusion of others, but also it isn’t really even worth investing resources in further research. The field is that flawed. Unfortunately, as I noted here a few weeks ago, then-Attorney General Loretta Lynch dismissed the report and refused to implement its recommendations at the Justice Department.”
Is Forensic Science Tipping the Scales of Justice?, Lab. Equip. Mag., Jan. 9, 2017
“For decades, an expert’s testimony under oath was good enough in an American courtroom. An analyst could compare bite marks or ballistics, link them from a crime scene to a suspect, and tell a jury they matched based on the expert’s opinion. The defense attorney’s role was to cross-examine that expert, and try to cast doubt on the testimony. But those dynamics began to change in 2009. A report by the National Research Council (NRC) contended that some aspects of science used in courtrooms did not have a quantitative, or sufficiently scientific, foundation. As DNA science continued to improve, and prisoners continued to be exonerated and released after lengthy times behind bars for crimes they didn’t commit, a sea change gradually began to crest. Seven years later, the wave is still swelling. There are still calls to quantify forensic evidence. An entirely new report released in September 2016 by the President’s Council of Advisors on Science and Technology (PCAST) reignited the call for a statistical approach to justice. Efforts are underway to make forensic science more quantitative, in order to provide juries with clear probabilities that the court system has gotten the right person. But only time will tell how this shift balances—or tips—the scales of American justice.”
Massachusetts Top Court Orders Prosecutors to Remedy Thousands of Tainted Drug Convictions, Pro Publica, Jan. 23, 2017
“More than four years after a Massachusetts lab chemist confessed to manipulating drug test results, the state’s highest court has called on prosecutors to reverse potentially thousands of tainted convictions. The chemist, Annie Dookhan, may have played a role in more than 20,000 drug cases during her eight and a half years at a state lab, but to date prosecutors have resisted mounting a wholesale revisiting of the convictions that resulted at least in part from Dookhan’s work. At one point, prosecutors argued that they had no obligation to inform those convicted of their possible innocence. Another prosecutor suggested that many of the defendants might be too poor or busy dealing with more pressing issues, such as mental illness or addiction, to have any desire to contest old drug convictions. And when prosecutors tried to alert all of the affected defendants of their potential innocence — four years after Dookhan’s confession — the mailed notice they sent was “wholly inadequate,” according to the court. As of last November, fewer than 2,000 defendants had sought or received relief from their drug convictions. The justices of the Massachusetts Supreme Judicial Court last week effectively declared an end to the delays. “The extraordinary magnitude of Dookhan’s misconduct has left us with only poor alternatives,” the court’s decision said. In a concurring opinion, two justices expressed frustration with “the unacceptably glacial systemic response to date” and called on prosecutors to dismiss “a truly significant number of the roughly 20,000″ Dookhan cases.”
New PCAST Report to the President of the United States on Forensic Science, Santa Barbara Lawyer, Nov. 2016, at 24
“The President of the United States requested an in-depth report from the President’s Council of Advisors on Science and Technology (known as PCAST) in 2015 to “consider whether there are additional steps that could usefully be taken on the scientific side to strengthen the forensic science disciplines and ensure the validity of forensic evidence used in the Nation’s legal system.” The PCAST Report was issued September 20, 2016, specifically referring to criminal court applications of forensic science. However, as with all of the forensic studies that have come out in recent years, this report has implications for civil litigators as well as criminal. It also has implications for judges, particularly those at the trial level.”
NIST Research Enables Enhanced DNA “Fingerprints”, NIST News, Dec. 15, 2016
“Since the FBI’s National DNA Index System, or NDIS, came online in 1998, forensic labs in the United States have been generating profiles by analyzing a specific set of 13 genetic markers. Starting January 1, 2017, that number will rise to 20, an advance made possible by close collaboration between scientists at the FBI and the National Institute of Standards and Technology (NIST). The additional markers will vastly increase the statistical certainty of DNA identifications and allow investigators to identify suspects that could slip through the cracks today. To meet the new year’s deadline, all labs that submit profiles to NDIS have had to upgrade their protocols and meet a series of quality assurance standards set by the FBI.”
Obama’s Science Advisors: Much Forensic Work Has No Scientific Foundation, Ars Technica, Sept. 20, 2016
“Last year, the US Department of Justice released a report that involved some painful self-examination. The DOJ looked at its own performance when it came to the analysis of hair samples—these were once used to identify potential suspects, but the FBI discontinued that practice in 1996. In looking over past cases, however, the feds discovered that agents had systematically overstated the method’s accuracy in court, including at least 35 death penalty cases. Now, in response to this and other reports on problems with forensic analysis, the President’s Council of Advisors on Science and Technology (PCAST) has issued an analysis that extends to half a dozen forensic techniques, including fingerprinting. The report finds that all of the techniques have problems when it comes to operating on a firm scientific footing, so PCAST makes strong recommendations for how to get forensic science to take its name seriously.”
Prosecutors’ Group Doubles Down on Junk Science in Face of New Report, Open File, Sept. 21, 2016
“This week, the President’s Council of Advisors on Science and Technology (“PCAST”) released a system-shaking report that explains how several fields of forensic analysis—including bite-mark analysis, hair comparisons, and shoeprint analysis—lack adequate scientific validation. Although many of these techniques have not been shown to be sufficiently reliable, they have been permitted to produce evidence in criminal cases across the country for many years. It is no wonder that D.C. Circuit Court of Appeals Judge Harry Edwards and Jennifer Mnookin, the dean of UCLA’s law school, wrote in the Washington Post that “[t]he report is a much-needed wake-up call to all who care about the integrity of the criminal-justice system.” Rather than waking up, however, the National District Attorneys Association (“NDAA”) is doubling down on the pseudo-science masquerading as forensic evidence. Given that district attorneys themselves widely evade accountability and face inadequate constraints on their power, perhaps it is no surprise that their representative organization is unwilling to stomach expert scrutiny of the evidence prosecutors introduce in criminal trials every day.”
Public Defender Reviewing 1,675 Cases Amid Fingerprint Investigation, Orlando Sentinel, Feb. 8, 2017
“Orange- Osceola Public Defender Robert Wesley said Wednesday that his office must review more than 1,675 criminal cases to determine whether any clients were harmed by an Orange County Sheriff’s Office fingerprint expert who since last week has been barred from testifying for the state.”
Rejecting Voodoo Science in the Courtroom, Wall St. J., Sept. 19, 2016
“The PCAST report recommends developing standards for validating forensic methods, training forensic examiners and making forensic labs independent of police and prosecutors. All should be swiftly implemented. Preventing the incarceration and execution of innocent persons is as good a use of tax dollars as any. The report will also immediately influence ongoing criminal cases, as it provides a road map for defense lawyers to challenge prosecution experts. As for past convictions obtained through discredited methods, the outlook remains grim. A 1997 Justice Department inspector-general report impugned 13 FBI lab examiners involved in more than 7,600 cases, including 64 capital cases. But, as John Malcolm of the Heritage Foundation points out, a 2014 Justice Department inspector-general report shows that only 312 of these cases had been reviewed in the past 17 years.”
STOP: Read this Before Admitting Any Forensic Evidence!, Judicial Edge (Nat’l Jud. College), Sept. 21, 2016
“The 174-page [PCAST] report includes recommendations to the judiciary, which may be found on page 142. Although the recommendations are tailored for federal judges, other judicial officers can glean information about decision-making on matters pertaining to forensic evidence and expert testimony.”
Unreasonable Certainty: A Call to Abandon “Reasonable Degree of Scientific Testimony” Terminology, Voices (Temple Law), Aug. 15, 2016
“The prevailing practice in many jurisdictions, usually compelled by custom rather than law, is to ask a testifying expert whether the opinion proffered or the conclusion drawn is held “to a reasonable degree of scientific certainty.” Yet scientists do not proclaim certainty in their domains; instead they acknowledge and embrace scientific knowledge as an area of change and evolution. And any attempt to define the term fails – how certain is “reasonable” certainty, and how is that measured except as a subjective appraisal rather than a uniform measure within a discipline?”
Using the PCAST Report in the Courtroom, Forensic Resources Blog, Nov. 21, 2016
“The President’s Council of Advisors on Science and Technology (PCAST) report on Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods was released on September 20, 2016. (Available for free download here.) The PCAST report gives an in-depth look at the current state of certain forensic science disciplines. It makes recommendations as to the use of forensic science evidence in court, improvements to be made in research and improvements to be made in forensic science in general. This report will be very useful in the courtroom, as it uses a framework to assess scientific validity that mirrors the NC Rule of Evidence 702, which governs the admissibility of expert testimony.”
Wake-Up Call on the Junk Science Infesting Our Courtrooms, Washington Post, Sept. 20, 2016
“On the popular television show “CSI,” forensic evidence was portrayed as glitzy, high-tech — and virtually infallible. Unfortunately, this depiction is often a far cry from reality. This week, a significant report issued by the President’s Council of Advisors on Science and Technology (PCAST) persuasively explains that expert evidence based on a number of forensic methods — such as bite mark analysis, firearms identification, footwear analysis and microscopic hair comparisons — lacks adequate scientific validation. Quite simply, these techniques have not yet been proved to be reliable forms of legal proof.
When Obama Wouldn’t Fight for Science, Washington Post, Jan. 4, 2017
“The PCAST report was damning, but if you’ve been following these issues with any regularity, it wasn’t at all surprising. That was in September. It’s now January. And not only has the Obama administration done nothing about the report, the Justice Department has publicly denounced it. That report, along with others and an administration that seemed unusually equipped to take it seriously, presented a small window in which to reform a system. That window is about slam shut. And we’re about to be governed by a new administration that seems likely to board it up, wallpaper it and overlay it with brick. This wasn’t just a missed opportunity; it was a catastrophe. And it’s difficult to overstate the consequences.”
Where Traditional DNA Testing Fails, Algorithms Take Over, Pro Publica, Nov. 4, 2016
“[P]robabilistic genotyping remains on the outer edge of scientific acceptance. The White House released a report in September by the President’s Council of Advisors on Science and Technology (PCAST) that called probabilistic genotyping an improvement over traditional methods of analyzing complex mixtures of DNA, but concluded the tools “still require scientific scrutiny.” . . . The PCAST report also noted that independent research is especially needed. Most of the studies published on TrueAllele and STRmix in peer-reviewed journals have been done by the developers of the tools.”
White House Science Advisers Urge Justice Dept, Judges to Raise Forensic Standards, Washington Post, Sept. 20, 2016
“Widely used methods to trace complex DNA samples, bullets, tread and bite marks to criminal defendants fall short of scientific standards, limitations that federal prosecutors and judges should seriously consider before entering forensic evidence in trials, a presidential panel urged Tuesday. The unanimous report by the 20-member President’s Council of Advisors on Science and Technology does not advocate banning testimony or putting limits on tools used for investigations. But when it comes to evidence at trial, the report says, the Justice Department and federal judges should give greater weight to scientists’ view of forensic evidence, particularly in light of a landmark 1993 Supreme Court decision that ruled courts should act as gatekeepers and admit only “scientifically valid” expert testimony.”
White House Science Council: Bite-Mark Matching Is Junk Science, Washington Post, Sept. 7, 2016
“The downside to Wednesday’s news is that no court is obligated to adopt the PCAST recommendations. And this really gets to the heart of the problem. Seven years ago, the National Academy of Sciences came out with a similar report, though it was somewhat more diplomatic than PCAST’s. There were predictions at the time that the NAS report would fundamentally alter the way forensics could be used in the courtroom. That never happened. The NAS report did pave the way to a series of federal working groups (such as PCAST) to look into these fields, but in the end, one report led to a bunch of commissions and committees putting out more reports. The effect on the day-to-day workings of the criminal justice system was negligible.”
Assessment of the 1996 Department of Justice Task Force Review of the FBI Laboratory (OIG 2014)
“In this report, we make five recommendations to the Department and the FBI regarding additional review of and notification to defendants whose convictions may have been tainted by unreliable scientific analyses and testimony. We also note that almost all of the problems we identified with the Department’s and the FBI’s design and management of the FBI Lab case review occurred long ago and most of the employees responsible for the review have left the Department or the FBI. During the course of this review, we provided the Department and the FBI with information about certain defendants – including all capital cases and all cases reviewed by independent scientists – so that the Department could take immediate action to ensure these defendants received appropriate notice of the possibility that their convictions were supported by unreliable evidence. The Department and the FBI have worked cooperatively with us to expedite potentially remedial action.”
Attorney General Memorandum and Code of Professional Responsibility (DOJ 2016)
“As part of the Department’s ongoing coordination with the National Commission on Forensic Science (NCFS), I [Attorney General Loretta Lynch] am responding today to several NCFS recommendations to advance and strengthen forensic science. These recommendations involve promoting professional responsibility among forensic practitioners, instituting best practices in quality management of forensic laboratories, and advancing the relationship between academic forensic research and practical implementation.” See also Justice Department Announces New Steps to Advance and Strengthen Forensic Science, DOJ Office of Public Affairs, Sept. 12, 2016; National Code of Ethics and Professional Responsibility for the Forensic Sciences (NIST).
Basic Legal Research on the Internet, LLRX, June 24, 2010
“This article explores the corner of the Internet landscape that concentrates on legal research. For the most part, these databases and search tools are free, although some might require a library card. Essentially, this is a short list of “go to” sites that most researchers will find useful. Before delving in, it might be worthwhile to examine a few time tested research concepts for the Internet age.”
Consortium of Forensic Science Organizations (CFSO)
“Formed in 2000, CFSO is an association of six forensic science professional organizations: American Academy of Forensic Sciences; American Society of Crime Lab Directors; International Association for Identification; International Association of Forensic Nurses; National Association of Medical Examiners; and Society of Forensic Toxicologists – American Board of Forensic Toxicology. These professional organizations together represent more than 21,000 forensic science professionals across the United States. The mission of the CFSO is to speak with a single forensic science voice in matters of mutual interest to its member organizations, to influence public policy at the national level and to make a compelling case for greater federal funding for public crime laboratories and medical examiner offices. The primary focus of the CFSO is local, state and national policymakers, as well as the United States Congress.”
Denuding the Emperor: Understanding and Using the PCAST Forensic Science Report, NAPD Webinar, Dec. 2, 2016
“The President’s Council of Advisors on Science and Technology (PCAST) has recently issued a report pertaining to forensic science. This report discusses generally what needs to occur in the area of forensic science(s) in order to subject these disciplines to the proper degree of scientific rigor. It also conducts in-depth examinations of the scientific underpinnings of DNA (single source and complex mixtures), Bitemarks, Latent Fingerprints, Firearms, Footwear, and Hair, and it makes explicit recommendations about what type of validation studies need to be conducted, who should be conducting them, and how judges should analyze this evidence. The purpose of this training is to familiarize the viewer with the PCAST report and explain how it can be used in the courtroom.”
FBI/DOJ Microscopic Hair Comparison Analysis Review (FBI 2015)
“The FBI, in conjunction with the Department of Justice (DOJ), is engaged in a review of scientific testimony provided by FBI Laboratory examiners in cases involving microscopic hair comparisons. The purpose of the review is to ensure that FBI Laboratory examiner testimony regarding microscopic hair comparison analysis met accepted scientific standards. In cases in which those standards were not met, remedial action may be taken if appropriate.”
Forensic Evidence and the CSI Effect, LLRX, May 9, 2010
“This is a collection of select legal scholarship and media studies that illuminates the extent of the phenomenon and whether it needs to be addressed and how. It should be noted that there is a large body of news articles, short-form scholarship, books and other media concerning this topic that is not covered in this survey. See generally Bibliography of Resources Related to the CSI Effect (NCSTL 2008); Getting a Grip on the CSI Effect: The National Clearinghouse for Science, Technology and the Law at Stetson University, LLRX, May 15, 2005.”
Forensic Science (NIST)
“Forensic science can be a powerful force in support of justice and public safety. But when used inappropriately, forensic science can lead to innocent people being wrongfully convicted and criminals remaining free to commit more crimes. Fortunately, forensic practice can be strengthened through scientific research and improved standards. That’s where NIST [National Institute of Standards and Technology] comes in. We are leading an effort that involves three key components:” Science, Policy and Practice.
Forensic Science Reform: Protecting the Innocent (ScienceDirect1st ed. 2017)
“Forensic Science Reform: Protecting the Innocent is written for the nonscientist to help make complicated scientific information clear and concise enough for attorneys and judges to master. This volume covers physical forensic science, namely arson, shaken baby syndrome, non-accidental trauma, bite marks, DNA, ballistics, comparative bullet lead analysis, fingerprint analysis, and hair and fiber analysis, and contains valuable contributions from leading experts in the field of forensic science.”
How to Read and Understand a Scientific Paper: A Guide for Non-Scientists, London School of Economics Impact of Social Sciences Blog, May 9, 2016
“From vaccinations to climate change, getting science wrong has very real consequences. But journal articles, a primary way science is communicated in academia, are a different format to newspaper articles or blogs and require a level of skill and undoubtedly a greater amount of patience. Here Jennifer Raff has prepared a helpful guide for non-scientists on how to read a scientific paper. These steps and tips will be useful to anyone interested in the presentation of scientific findings and raise important points for scientists to consider with their own writing practice.”
“The Innocence Network is an affiliation of organizations dedicated to providing pro bono legal and investigative services to individuals seeking to prove innocence of crimes for which they have been convicted, working to redress the causes of wrongful convictions, and supporting the exonerated after they are freed.”
“The Innocence Project, founded in 1992 by Peter Neufeld and Barry Scheck at Cardozo School of Law, exonerates the wrongly convicted through DNA testing and reforms the criminal justice system to prevent future injustice.”
Justice Department Announces Department-Wide Procedures for Eyewitness Identification (DOJ 2017)
“Deputy Attorney General Sally Q. Yates announced today that the Justice Department is issuing, for the first time, department-wide procedures on eyewitness identification, which will apply to agents at FBI, Drug Enforcement Administration (DEA), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the U.S. Marshals Service, and which will guide federal prosecutors when deciding whether to charge a case involving an eyewitness identification. The new procedures were outlined in a memo from Yates to the heads of the department’s law enforcement agencies. The procedures address the use of “photo arrays,” the most common methods used by law enforcement to determine whether a witness can identify the perpetrator of a crime, and are designed to ensure that law enforcement personnel do not suggest to a witness, even unintentionally, that they know which photograph contains the image of the suspect.” See Eyewitness Identification: Procedures for Conducting Photo Arrays (DOJ 2017).
Misapplication of Forensic Science (Innocence Project)
“Misapplication of forensic science is the second most common contributing factor to wrongful convictions, found in nearly half (46%) of DNA exoneration cases. Through the examination of more than 300 exonerations, the Innocence Project has seen the many ways forensic science can be misapplied.”
National Academy of Sciences (NAS)
“The National Academy of Sciences (NAS) is a private, non-profit society of distinguished scholars. Established by an Act of Congress, signed by President Abraham Lincoln in 1863, the NAS is charged with providing independent, objective advice to the nation on matters related to science and technology. Scientists are elected by their peers to membership in the NAS for outstanding contributions to research. The NAS is committed to furthering science in America, and its members are active contributors to the international scientific community. Nearly 500 members of the NAS have won Nobel Prizes, and the Proceedings of the National Academy of Sciences, founded in 1914, is today one of the premier international journals publishing the results of original research. The National Academy of Engineering (NAE) and the National Academy of Medicine (NAM, formerly the Institute of Medicine) — were founded under the NAS charter in 1964 and 1970, respectively. The three Academies work together as the National Academies of Sciences, Engineering, and Medicine to provide independent, objective analysis and advice to the nation and conduct other activities to solve complex problems and inform public policy decisions. The National Academies also encourage education and research, recognize outstanding contributions to knowledge, and increase public understanding in matters of science, engineering, and medicine. The National Academies’ service to government has become so essential that Congress and the White House have issued legislation and executive orders over the years that reaffirm its unique role.” See also National Academies of Science, Engineering and Medicine (NASEM); National Research Council (NRC); and National Academies Press (NAP).
National Clearinghouse for Science, Technology and the Law (Stetson University College of Law)
“Judges, lawyers, scientists and law enforcement are overwhelmed by the amount of science and technology information required to educate themselves to meet the many legal challenges. Navigating the vast terrain of information contained within the existing case law, scientific journals, reports, publications and other resources has been, in the past, an impossible task. The National Clearinghouse for Science, Technology and the Law [NCSTL] assembles the available scientific, technological, and relevant legal resources into a comprehensive “one-stop” searchable database with equal access for all. There are no subscription fees which makes the NCSTL database the only free compilation of forensic resources in the world.”
National Commission on Forensic Science (NCFS)
“In 2013, the Department of Justice (DOJ) established the National Commission on Forensic Science, in partnership with the National Institute of Standards and Technology (NIST), to enhance the practice and improve the reliability of forensic science. This unique partnership draws upon each agency’s core strengths to promote scientific validity, reduce fragmentation, and improve federal coordination of forensic science.”
National Institute of Standards and Technology (NIST)
“The National Institute of Standards and Technology (NIST) was founded in 1901 and now part of the U.S. Department of Commerce. NIST is one of the nation’s oldest physical science laboratories. Congress established the agency to remove a major challenge to U.S. industrial competitiveness at the time—a second-rate measurement infrastructure that lagged behind the capabilities of the United Kingdom, Germany, and other economic rivals. From the smart electric power grid and electronic health records to atomic clocks, advanced nanomaterials, and computer chips, innumerable products and services rely in some way on technology, measurement, and standards provided by the National Institute of Standards and Technology. Today, NIST measurements support the smallest of technologies to the largest and most complex of human-made creations—from nanoscale devices so tiny that tens of thousands can fit on the end of a single human hair up to earthquake-resistant skyscrapers and global communication networks.”
Principles and Recommendations for Strengthening Forensic Science in the Courtroom (NACDL 2010)
“Forensic science evidence presented in court is often based on speculative research, subjective interpretations and inadequate quality control procedures, according to a report just released by the National Association of Criminal Defense Lawyers (NACDL). Police need to be taken out of the laboratory, and the “crime labs” need to be taken out of the police station, with the goal of ensuring the scientific integrity of forensic science evidence. Neutrality and objectivity are as essential to preventing wrongful convictions and exonerating the innocent as they are to solving crimes and convicting the guilty.”
Recommendations for the Efficient DNA Processing of Sexual Assault Evidence Kits (Scientific Working Group on DNA Analysis Methods 2016)
“The Scientific Working Group on DNA Analysis Methods, better known by its acronym of SWGDAM, is a group of scientists representing Federal, State, and Local forensic DNA laboratories in the United States and Canada. During meetings, which are held twice a year, Committees discuss topics of interest to the forensic DNA community and often develop documents to provide direction and guidance for the community. In some instances, an Ad Hoc Working Group may be empaneled to address a particular topic outside of the routine SWGDAM January/July meeting schedule. ”
Reference Manual on Scientific Evidence (FJC 3rd ed. 2011)
“The Reference Manual on Scientific Evidence, Third Edition assists judges in managing cases involving complex scientific and technical evidence by describing the basic tenets of key scientific fields from which legal evidence is typically derived and by providing examples of cases in which that evidence has been used. First published in 1994 by the Federal Judicial Center, the Reference Manual on Scientific Evidence has been relied upon in the legal and academic communities and is often cited by various courts and others. Judges faced with disputes over the admissibility of scientific and technical evidence refer to the manual to help them better understand and evaluate the relevance, reliability and usefulness of the evidence being proffered. The manual is not intended to tell judges what is good science and what is not. Instead, it serves to help judges identify issues on which experts are likely to differ and to guide the inquiry of the court in seeking an informed resolution of the conflict. The core of the manual consists of a series of chapters (reference guides) on various scientific topics, each authored by an expert in that field. The topics have been chosen by an oversight committee because of their complexity and frequency in litigation. Each chapter is intended to provide a general overview of the topic in lay terms, identifying issues that will be useful to judges and others in the legal profession. They are written for a non-technical audience and are not intended as exhaustive presentations of the topic. Rather, the chapters seek to provide judges with the basic information in an area of science, to allow them to have an informed conversation with the experts and attorneys.”
Research Resources in Technology, Science and the Law (Keeping Current) in The Future of Evidence (Carol Henderson & Jules Epstein, eds.) 265-300 (2011)
“This chapter will focus mainly on the Internet-based segment of the publication cycle for technological and scientific information as they relate to the practice of law and the administration of justice. It should be noted that the web portion of the Internet is being cabined and displaced by the “closed gardens” of application software and services. It is within the walls of these gardens that much of the print and online sources concerning forensics and scientific evidence will be moving. Westlaw and Lexis are two examples of databases with menus of forensic, medical, and scientific treatises and journals. But for the purposes of this chapter, the principal sources collected are available on the open Web.”
Strengthening Forensic Science: The Next Wave of Scholarship, LLRX, Nov. 23, 2009
“The National Academy of Sciences report, Strengthening Forensic Science in the United States: A Path Forward [NAS Report], is the most important, recent contribution to the ongoing reevaluation of forensic evidence. Since the release of the prepublication version in February 2009, its findings and conclusions have been steadily sinking into the collective consciousness of the legal and scientific communities. This article focuses on threads of scholarly literature citing and commenting on the NAS Report; and highlights discussions where experts and practitioners rethink the merits of a wide range of forensic issues.”
Testimony Using the Term “Reasonable Scientific Certainty” (NIST 2014)
“Forensics experts are often required to testify that the opinions or facts stated are offered “to a reasonable scientific certainty” or to a “reasonable degree of [discipline] certainty.” Outside of the courts, this phrasing is not routinely used in scientific disciplines. Moreover, the terminology, in its varying forms, is not defined in standard medical or scientific reference materials. With respect to its use in the courts, this phrase is almost always interjected as a matter of custom, but in some jurisdictions results from an appellate court ruling or trial judges’ or lawyers’ belief that it is a necessary precondition for admissibility. In the courtroom setting, the phrase risks misleading or confusing the factfinder. It is the view of the National Commission on Forensic Science (NCFS) that the scientific community should not promote the use of this terminology. Additionally, the legal community should recognize that medical professionals and other scientists do not routinely use “to a reasonable scientific certainty” when expressing conclusions outside of the courts since there is no foundational scientific basis for its use. Therefore, legal professionals should not require that forensic discipline testimony be admitted conditioned upon the expert witness testifying that a conclusion is held to a “reasonable scientific certainty,” a “reasonable degree of scientific certainty,” or a “reasonable degree of [discipline] certainty,” as such terms have no scientific meaning and may mislead jurors or judges when deciding whether guilt has been proved beyond a reasonable doubt. The Commission recognizes the right of each court to determine admissibility standards but expresses this view as part of its mandate to “develop proposed guidance concerning the intersectio
 Katie Benner, Mark Zuckerberg and Priscilla Chan Pledge $3 Billion to Fighting Disease, N.Y. Times, Sept. 22, 2016, at B6,
 Toni Clarke, Joe Biden Announces Next Steps in ‘Cancer Moonshot’, Huffington Post, Sept. 20, 2016.
 Hereinafter (PCAST Report). See entry for “Report on Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods on September 20, 2016.” N.B. The information posted by the Obama administration has been moved to an archived microsite, https://www.obamawhitehouse.gov/.
 See generally Ken Strutin, Strengthening Forensic Science: The Next Wave of Scholarship, LLRX, Nov. 23, 2009.
 See Ken Strutin, Criminal Law Forensics: Century of Acceptance May Be Over, N.Y.L.J., Jan. 8, 2008, at 5 (“The gold standards of forensic science are losing their luster. Unchallenged for decades, the reputation of fingerprint comparison, bullet matching and like evidence seemed secure. Historical acceptance and legal intuition supplied the foundations for their continued acceptance. Yet, when challenged by fresh analysis and independent scientific evaluation their status has faltered. Since many forensic techniques were accepted while in their infancy, due process demands revisiting them in the light of new research.”).
 See generally Leaving a Trace: Forensic Science Through History, BBC, May 30, 2015 (“The development of the technology involved has accelerated in recent years but the roots of forensic science go back a long way. So, how did we arrive at the powerful methods we have today?”).
 See Caitlin M. Plummer and Imran J. Syed, ‘Shifted Science’ and Post-Conviction Relief, 8 Stan. J. Civ. Rts. & Civ. Liberties 259 (2012); See generally Ken Strutin, Litigating from the Prison of the Mind: A Cognitive Right to Post-Conviction Counsel, 14 Cardozo Pub. L. Pol’y & Ethics J. 343 (2016); Ken Strutin, Post-Conviction Representation, Pro Se Practice and Access to the Courts, LLRX, Feb. 19, 2013 (“After the first criminal appeal, there is no constitutional right to counsel. Thus, the convicted and imprisoned pursuing discretionary appeals and habeas corpus relief must research, investigate and litigate as their own attorney.” (footnote omitted)).
 See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) (“That the Frye test was displaced by the Rules of Evidence does not mean, however, that the Rules themselves place no limits on the admissibility of purportedly scientific evidence. Nor is the trial judge disabled from screening such evidence. To the contrary, under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Id. at 589 (footnote omitted). “We recognize that, in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.” Id. at 597 (footnote omitted) (emphasis added)).
 See Motorola, 147 A.3d 751 (“We have considered revising the Frye [v. United States, 293 F. 1013 (D.C. Cir. 1923)] test, as some jurisdictions have done, but there are substantial benefits to be gained from adopting a test that is widely used. See Johnson v. United States, 683 A.2d 1087, 1100 (D.C. 1996) (en banc) (noting “the advantage that uniformity with the federal rule and the vast majority of state rules affords for interpretation and application”). We can learn from the decisions of other courts which apply Rule 702 or its state counterparts. Nevertheless, we are not proceeding with any illusions that the cases are uniform or even consistent. Nor will the transition be easy. But we are not the first jurisdiction to make this change, and the Advisory Committee Notes to Rule 702 provide helpful guidance for applying the rule. Echoing sentiments from Daubert, 509 U.S. at 593, we are confident that judges of the Superior Court, like their Article III counterparts, are fully capable of performing the gatekeeping function.” Id. at 757 (footnote omitted) (emphasis added)).
 147 A.3d at 760 (Easterly, J. concurring) (footnotes omitted). N.B. The exact title of the PCAST Report is “Report on Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods.” The text of the court’s decision changed it slightly by adding “the,” i.e., ” Forensic Science in the [sic] Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods,” which can complicate searching for the PCAST report by title. Thus, a Boolean terms and connectors search would cull more results than an “exact” term search.
 Rory K. Little, Addressing the Evidentiary Sources of Wrongful Convictions: Categorical Exclusion of Evidence in Capital Statutes, 37 Sw. L. Rev. 965 (2008) (N.B. “Model Statute for Categorical Exclusion of Known Evidentiary Sources of Wrongful Convictions” Id. at 985).
 The registry has cataloged 1,994 exonerations. See National Registry of Exonerations, last visited Feb. 26, 2017. See generally Samuel R. Gross and Michael Shaffer, Exonerations in the United States, 1989-2012 (Nat’l Reg. Exonerations 2012) (discussing “Bad Forensic Evidence” Id. at 63-65 and “Mistakes” based on shaken baby syndrome and arson investigation Id. at 69-73).
 The resources listed here do not address the work being done in other countries to improve the quality of forensic sciences. See, e.g., Forensic Science Regulator (UK) (“The Forensic Science Regulator ensures that the provision of forensic science services across the criminal justice system is subject to an appropriate regime of scientific quality standards.”); Forensic Science Providers: Codes of Practice and Conduct Collection (UK). See generally Sophie Carr et al., Opening the Scientific Expert’s Black Box: ‘Critical Trust’ as a Reformative Principle in Criminal Evidence, 80 J. Crim. L. 364 (2016); Carole McCartney, Serious Concerns About Forensic Science Standards in the UK, Wrongful Convictions Blog, Feb. 23, 2017.
 “This new document, approved by PCAST on January 6, 2017, is an addendum to the earlier report developed to address input received from stakeholders in the intervening period.” See Forensics Addendum.
 See generally For the Discerning Public: Read ALL the #Forensic Orgs That Opposed PCAST Standards, Forensics and Law in Focus @ CSIDDS News and Trends, Jan. 12, 2017 (“After the release of PCAST’s report in September 2016, more than a dozen organizations issued statements in response. Links to some of these statements are listed. . . .”).
 See About Organization of Scientific Area Committees (OSAC) for Forensic Science (NIST) (“The purpose of the OSAC is to strengthen the nation’s use of forensic science by providing technical leadership necessary to facilitate the development and promulgation of consensus-based documentary standards and guidelines for forensic science, promoting standards and guidelines that are fit-for-purpose and based on sound scientific principles, promoting the use of OSAC standards and guidelines by accreditation and certification bodies, and establishing and maintaining working relationships with other similar organizations.”).
 “The report examines forensic science methods including: • DNA analysis of single-source and simple-mixture samples; • DNA analysis of complex-mixture samples; • Bitemark analysis; • Latent fingerprint analysis; • Firearms analysis; • Footwear analysis; and • Hair analysis.” Id.
 Written by: “Mr. [Alex] Kozinski, a judge on the Ninth Circuit Court of Appeals since 1985, was a senior adviser to the PCAST report.” Id.
 Written by: “Harry T. Edwards is a senior judge on the U.S. Court of Appeals for the D.C. Circuit. Jennifer L. Mnookin is dean of the UCLA School of Law. They serve as co-chairs of the Senior Advisors to the PCAST Working Group.” Id.