It appears as if some­one is lis­ten­ing in Con­gress.  On May 5, 2010, the Sen­ate Judi­ciary Com­mit­tee released a “Draft Out­line of Foren­sic Reform Leg­is­la­tion.“

In my opin­ion:  It is a good start, but with a tar­get as big as a barn as iden­ti­fied painstak­ingly by the NAS report, the Sen­ate Judi­ciary Com­mit­tee seems to have missed the mark in some impor­tant areas.

Even with the NAS report iden­ti­fy­ing the old rick­ety barn that is foren­sic sci­ence in Amer­ica today, the Sen­ate Judi­ciary Com­mit­tee in some impor­tant respects didn’t hit the broad side of the old barn

Some very good first steps:

• The estab­lish­ment of a national Foren­sic Sci­ence Com­mis­sion (FSC) which will act as a national clear­ing house to do the following:

1. estab­lish accred­i­ta­tion pro­grams crime labs and issue such accred­i­ta­tions as necessary,
2. estab­lish com­pe­tency stan­dards for pro­fi­ciency test­ing within disciplines,
3. cre­ate and per­form pro­fi­ciency pro­grams on those accred­ited or those seek­ing accreditation,
4. issue cer­ti­fi­ca­tions for labs and per­haps to spe­cific foren­sic sci­ence practitioners

• An exam­i­na­tion of the laugh­ably low require­ments to be qual­i­fied as an expert in Court

The FSC shall con­sider whether and in what form a new fed­eral rule of evi­dence or pro­ce­dure would be appro­pri­ate requir­ing that all those who tes­tify in fed­eral court as foren­sic experts be cer­ti­fied. The FSC must con­sider how any such rule would be imple­mented in a way that guar­an­tees access by defense coun­sel to cer­ti­fied experts.

• The fund­ing for research to explore whether or not the tech­niques used by the var­i­ous foren­sic sci­ence dis­ci­plines that now exist can sci­en­tif­i­cally make the con­clu­sions and asser­tions that they claim now to make.  In other words the pro­duc­tion of true sci­en­tific and robust val­i­da­tion stud­ies that will prove or dis­prove the tech­niques employed as being suit­able for their intended pur­pose.  With­out this major first step, it seems as if we are doomed to sim­ply put a cos­metic face lift on the under­ly­ing prob­lem.  What is the use of all of this reform if we can­not have con­fi­dence in the very method that is accred­ited by the new national Foren­sic Sci­ence Com­mis­sion (FSC)?  This needs to be first pri­or­ity.  Both the National Insti­tute of Stan­dards and Tech­nol­ogy (NIST), National Insti­tute of Jus­tice (NIJ) and National Sci­ence Foun­da­tion (NSF) will be called upon to help coör­di­nate, fund and mon­i­tor the peer-reviewed research conducted.
• Estab­lish­ing stan­dard nomen­cla­ture to be used within and with­out a par­tic­u­lar discipline.

Some trou­bling parts:

• These pro­vi­sions seem to only apply to fed­eral labs.  While the expo­sure of the FBI crime lab and the efforts of Amer­i­can heroes like Dr. Fred­eric White­hurst, PhD has well exposed the sys­temic issues that are/were present in fed­eral labs and the cur­rent expo­sure of the lack of pub­lished lab­o­ra­tory pro­to­col at the DEA labs, the Sen­ate Judi­ciary Com­mit­tee should rec­og­nize that the sheer bulk in terms of the quan­tity of foren­sic sci­ence that is per­formed in the United States is at the local and state level.  Also, at least at most fed­eral labs, there are actu­ally cre­den­tialed sci­en­tists who hold a brick and mor­tar degree in the research field that they are pre­form­ing analy­sis in the lab; whereas, in stark con­trast, at the state and local level, by and large, those labs are pop­u­lated with glo­ri­fied pro­moted traf­fic cops who have no sci­en­tific under­pin­ning and are in essence non-technical lay peo­ple who repeat a process.
• Grand­fa­ther­ing of bro­ken pro­grams.  As writ­ten in the draft:

Where a Sub­com­mit­tee deter­mines that one or more qual­i­fied pro­fes­sional cer­ti­fy­ing orga­ni­za­tions exist for a par­tic­u­lar dis­ci­pline, the Sub­com­mit­tees will gen­er­ally del­e­gate the deter­min­ing of stan­dards for cer­ti­fi­ca­tion to those orga­ni­za­tions. Should a Sub­com­mit­tee decide to do so, it must per­form reg­u­lar and thor­ough over­sight and reassess the deci­sion to del­e­gate peri­od­i­cally. The des­ig­nated pro­fes­sional orga­ni­za­tion must be open and trans­par­ent in its process.

This will likely mean that the dys­func­tional sys­tem of ASCLD-LAB will con­tinue to exist and be as it is now, the rub­ber stamp of the foren­sic sci­ence world.  The legacy pro­gram is a dis­grace wherein just because your lab has been doing it long enough you do not need to become “tested” and accred­ited as newer labs would have to do to achieve the rub­ber stamp.  The sim­ple fact that not a sin­gle lab that has been ASCLD-LAB cer­ti­fied has ever lost (or even been warned that is going to lose) its accred­i­ta­tion is also troubling.

• The grand­fa­ther­ing of exist­ing non-technical lay peo­ple who will leave by attrition:

The FSC will deter­mine a process for cur­rent prac­ti­tion­ers to test in to cer­ti­fi­ca­tion, or become cer­ti­fied in a grad­ual multi-part process, with waiver of some or all degree and train­ing require­ments.  (empha­sis added)

• The FSC shall oper­ate out of the office of the Deputy Attor­ney Gen­eral.  Even though the cur­rent lan­guage of the draft includes the appoint­ment of both post-conviction advo­cates and defense coun­sel, this is most dis­ap­point­ing espe­cially given the explicit rec­om­men­da­tion of the NAS report to totally divorce foren­sic sci­ence from prosecution.

Pros­e­cu­tion over­sight of sci­ence is dangerous

We have seen the polit­i­cal cen­sor­ing of sci­ence before.  Why can we not learn from our errors in this regard?  Why put the fox in charge of the hen house?  The need for inde­pen­dence is demon­stra­ble and apparent.

A good start but far from the per­fect solution.

A spe­cial thank you to Steven Ober­man, Esquire of Ten­nessee who is the cur­rent Dean for the National Col­lege for DUI Defense Inc. for bring­ing this to my attention.