A Template for Enhancing the Impact of the National Academy of Sciences’ Reporting on Forensic Science
Data publikacji: 31 gru 2019
Zakres stron: 441 - 464
DOI: https://doi.org/10.2478/bjals-2019-0009
Słowa kluczowe
© 2019 Amelia Shooter et al., published by Sciendo
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.
DNA technology – when applied properly – provides the criminal justice system with a highly reliable identification method, which can be used to both convict and exonerate individuals. At the same time, however, this capacity of DNA technology undermines various forensic science identification techniques, including tool-mark, fingerprint, and bite-mark analysis, which the criminal justice system has routinely admitted as evidence for decades.
R v. Pitchfork [2009] EWCA (crim.) 963, [11] (Eng.); (Appeal outlines the first use of DNA evidence in 1987); Andrews v. State, 533 So.2d 841 (Fla. Dist. Ct. App. 1988). V The report, S K D H
This article, using the experiences of
This section first outlines the history and function of the NAS. It then details the circumstances surrounding the publication of the
In 1863, the NAS was established by President Lincoln to provide “independent, objective advice to the nation on matters related to science and technology.”
National Academy of Sciences, An Act to Incorporate the National Academy of Sciences, 36 U.S.C §251 et seq. (1863). National Academy of Sciences,
Over the last 150 years, the NAS has generated a diverse portfolio of research that reflects the culture of scientific collaboration and inquiry. This portfolio includes reporting on matters of national security and welfare during World War I;
A The government also made use of the NAS through a series of scientific exchanges between both the USSR and China. This proved to be valuable for international relations, with science maintaining dialogue between nations when political relations had broken down. During the Cold War period, the NAS and NRC worked on a variety of research projects for the federal government, including oceanography, studies of pacific islands and improving international scientific dialogue and cooperation. As popular interest in subjects such as the effect of atomic warfare increased, the NAS was used by the federal government to map its effects. For example, the report, A
In the mid-twentieth century, Comparative Bullet-Lead Analysis (CBLA) was developed by the FBI as a tool to determine the source of bullet fragments found at crime scenes.
M William C. Thompson, M
In 2002, the FBI commissioned the NAS to produce “an impartial scientific assessment of the soundness of the scientific principles underlying CBLA
Throughout the report, CBLA evidence is referred to as CABL, or comparative analysis of bullet lead. M Erik Randich, Wayne Duerfeldt, Wade McLendon, William Tobin, M
In 2004, the NAS published its report
The NAS also found that variations in manufacturing processes could undermine the probative value of CBLA evidence and potentially result in misleading comparisons.
This report primarily elicited responses from two stakeholder groups: the FBI and the judiciary.
Immediately after the report’s publication, the FBI defended its use of CBLA, but expressed a willingness to undertake further research.
Charles Piller, FBI National Press Office,
At the time of the FBI’s decision, over 2,500 convictions had been secured using the CBLA technique.
CBS News, FBI National Press Office,
The The FBI, as part of a review of CBLA cases, sent letters to individuals affected to make them aware of the limitations of the evidence.
Newly discovered evidence claims “usually involve some combination of showings that the new evidence could not have been discovered prior to trial with the exercise of reasonable diligence; that the evidence is relevant and not cumulative or merely impeaching; and that the new evidence creates a sufficient probability of a different result at a new trial.”
Keith A. Findley,
Some petitioners have succeeded in cases where CBLA evidence was the primary evidence against the petitioner. For example, in Ward v. State, 221 Md. App. 146 (Md. Ct. Spec. App. 2015). Murphy v. State, 24 So.3d 1220 (Fla. Dist. Ct. App. 2009).
By contrast, other courts have determined that the Commonwealth v. Kretchmar, 971 A.2d 1249 (Pa. 2009). Gonzales v. Thaler, 2012 WL 5462682 (S.D. Tex. Oct 23, 2012). United States v. Higgs, 663 F.3d 726 (D. Md. 2010). More v. State, 880 N.W.2d 487, 509 (Iowa 2016). St Clair v. Commonwealth, 451 S.W.3d 597 (Ky. 2014).
Another identifiable approach in rejecting newly discovered evidence claims emerges where a conviction was supported by other, non-CBLA evidence. In such cases, judges have reasoned that, due to the presence of other inculpatory evidence, the exclusion or undermining of CBLA evidence would not have resulted in a different trial outcome. For example, the Supreme Court of Minnesota dismissed the petitioner’s claim in Gassler v. State, 787 N.W.2d 575 (Minn. 2010).
In 2005, Congress commissioned the NAS to report on the general status of forensic science after recognizing that “significant improvements are needed in forensic science.”
E
With regards to specific disciplines, the report evaluated each discipline’s adherence to fundamental scientific principles.
The report examines blood stain, and other biological fluid evidence, concluding that nuclear DNA analysis is the most reliable way of attributing fluids to individuals, but other DNA analysis methods are available. As DNA developed through scientific methods, analysis is highly reliable. The report expresses concerns that appropriate standards and recommendations are not followed, as they cover a range of drugs—it is the analyst’s responsibility to decide the appropriate testing method. This is problematic as drug analysis reports are often inadequate. In acknowledging the utility of fingerprint analysis, the report refuted claims of a zero error rate. They found limited research supporting reliability of analysis techniques and individualization of prints, recommending further research. The report found that experts find it difficult to avoid bias, and that the experience-reliant nature of impression matching rendered the imposition of standards difficult. Further research to understand the rarity of characteristics was recommended. In concluding, the report determined that not enough is known about tool-mark variability, meaning that it is impossible to set a confidence level. They also showed concern about a lack of defined analysis process and difficulties with experts’ qualitative reasoning. The report did not find any scientifically accepted statistics about frequency distribution of hair characteristics. No studies were found supporting methods of matching hair fibers, leaving a determination of a match ambiguous as to its probative value. The report concluded that the scientific basis of document examination needs strengthening, as limited research has been carried out. While based on a solid foundation of chemistry, the report expressed concerns about the lack of standard practices for determining a match of two samples. The report supported the chemistry-based foundations of explosives evidence, but found very little research into burn patterns, leaving expert opinions unsupported. The reliability of bite mark evidence was refuted, with the report rejecting the methods used by analysts to identify individuals based on dental impressions. The report noted that no thorough studies have been carried out supporting the use of this technique. Some aspects of bloodstain pattern analysis are supported by studies, but the technique is resource intensive. The report acknowledges the emerging nature of this field, acknowledging its potential to collect vast amounts of information. The report noted that greater training amongst law enforcement is needed. E D. Michael Risinger,
Although the NAS did not make prescriptive comments on the admissibility of forensic techniques, it discussed what it saw as inadequacies in legal admissibility standards.
E
Ten years post-publication, a significant body of literature discussing A literature review searching The National Academies of Sciences, Engineering and Medicine,
The report’s recommendations, including the creation of the oversight body—nominally called the National Institute of Forensic Science—were naturally directed towards Congress. In 2009, the House of Representatives Committee on Science and Technology discussed how S. Rep. No. 111-8 (2009). Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). S. Rep. No. 111–554, at 8 (2009). See, e.g., Forensic Science and Standards Act of 2012, S. 3378, 112th Cong. (2012). Debbie Smith Reauthorization Act of 2014, H.R. 4323, 113th Cong., at 5 (2014).
Prior to For a summary of the New York Commission on Forensic Science, T T The North Carolina Innocence Inquiry Commission, Kavita Pillai, E Pillai,
Judicial responses to Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).
Shortly after
A review of lower court case law between 2009 and 2018 shows that The author has undertaken a comprehensive review of cases as part of a wider study examining judicial engagement with the six forensic science NAS reports. Out of 644 cases identified, 218 referred to
Some courts have simply been silent about the report. There are several judgments where the report has been considered in the dissent, but is absent in the majority decision. For example, the majority judgment in Ex Parte Robbins, 360 S.W.3d 446, 470 (Tex. App. 2011).
Courts have used
Some courts have acknowledged the concerns raised in United States v. Herrera, 704 F.3d 480 (7th Cir. 2013). Commonwealth v. Gambora, 457 Mass. 715, 727–728 (Mass. 2010). State v. Thomas, 2016 WL 779929, 13 (Tenn. Ct. App. March, 28 2016).
A noticeable pattern in judicial decisions limiting the extent of firearms testimony is evident; United States v. Ashburn, 88 F.Supp.3d 239 (E.D.N.Y. 2015); United States v. Taylor,
Courts have routinely dismissed newly discovered evidence petitions that claim Commonwealth v. Riddick, 2017 WL 6568212 (Pa. Super. Ct. 2017 Dec. 26, 2017). Ross v. Epps, 2015 WL 5772196 (N.D. Miss. Sept 30, 2015).
However, This petition was not successful due to being time-barred. Commonwealth v. Edmiston, 65 A.3d 339, 351 (Pa. 2013). Commonwealth v. Chmiel, 173 A.3d 617 (Pa. 2017).
Notwithstanding the FBI’s review of microscopic hair analysis cases, the FBI has been criticized for its reluctance to modify practice following the publication of Jonathan J. Koehler, Simon A. Cole, Simon A. Cole, Paul C. Giannelli, Daubert
E Giannelli, T Rachel E. Barkow,
That said, the DOJ did act when it became clear that a National Institute of Forensic Science would not materialize through an act of Congress.
This was despite wide support from academics. N NIST, N Jonathan J. Koehler, John B. Meixner, Jr., During its four-year tenure, the NCFS adopted 43 work products, requiring action from the Attorney General, 20 recommendation documents and 23 views documents. These have either explored foundational documents designed to strengthen the reliability and validity of forensic science evidence, operational work products, and relational work products. The United States Department of Justice Archives, N Jules Epstein,
As part of broader attempts to improve criminal justice, the Obama Administration reviewed E E FBI, Gary Fields, Association of Firearm and Tool Mark Examiners, United States v. Bonds, 2017 WL 4511061 (N. D. Ill. 2017). United States v. Pitts, 2018 WL 1116550, 5 (E.D.N.Y. 2018).
The various stakeholder responses to both the
Part I outlined how the selected NAS reports have attracted stakeholder engagement. This is true beyond these two specific reports.
There exists much legal academic literature discussing stakeholders’ engagement with the six forensic science NAS reports. The authors undertook a review of each, and found 278 references for
Case law consistently demonstrates that the NAS’ reports on forensic science are used by judges as a reference tool. As pointed out in Part I, this is true of United States v. Berry, 624 F. 3d 1031, 1040 (9th Cir. 2010).
This reliance on the authority of NAS reports to provide information about forensic science techniques suggests that courts see the NAS as a scientific authority, independent of parties to the trial process. To this end, the authors suggest that the NAS could maximize the impact of its reporting in this way. One suggestion for doing this is for the NAS to create a living document (reflecting that this information may change in line with the nature of scientific inquiry) on forensic science techniques. Such a document could include a definition of all examined forensic science techniques, information about methods of identification and analysis, and a summary of limitations. Through the NAS collating existing forensic science definitions, legal actors benefit from a single-source material, which will provide an independent and authoritative referencing tool about forensic science techniques.
Part I highlighted that the selected reports have played a role in shaping conversations around trending issues in forensic science. For example, albeit resisted at first by the FBI, the A search for cases published between 2009 and 2018 that directly reference The FBI last reported on the progress of its review of microscopic hair analysis in 2016. For more information,
This proactive approach would be in line with the NAS’ history of taking initiative to explore pressing issues, which contribute to enabling stakeholders to resolve uncertainty. This includes issues relating to criminal justice. For instance, the 1992 report— M
Although the CBLA and Clemons v. State, 329 Md. 339 (Md. 2006). State v. Behn, 375 N.J.Super. 409 (N.J. Super. Ct. App. Div. 2005). In California, the 1992 case of
This state-level traction suggests that federally commissioned and directed NAS reports can have a significant impact at state level. States can be considered more receptive and/or able to deliver reform. Reflecting on this, and the fact that the NAS’ mandate does not expressly preclude them from receiving requests about and/or focusing on state-specific issues, the authors suggest the NAS could develop a state-specific portfolio, targeting issues of specific concern to individual states or groups of states.
Albeit challenging, there have been national efforts to address concerns about forensic science. The National Commission for Forensic Science (NCFS), and the 2016 President’s Council of Advisors on Science and Technology (PCAST) report emerged from observations set out in The Philip D. Reed Lecture Series Advisory Committee on Evidence Rules, The NAS has already used its position to bring together stakeholders in workshops to discuss specific issues.
A key element to building on existing stakeholders’ engagement effectively would be to do so in a way that is expressly sensitive to the frameworks that stakeholders operate within. A variety of stakeholders—ranging from the FBI and DOJ, to the courts and Congress—have engaged with the For example.
This point can be teased out across various examples, with individual stakeholders demonstrating particular concerns. Congress and the FBI are expressly cognizant of resource implications. Congressional committees have addressed funding and resource issues several times. For example, the House of Representatives Committee on Science and Technology has expressed concern about a congressional focus on funding for DNA evidence projects to the detriment of non-DNA evidence projects.
Committee on Science and Technology House of Representatives, The petitioner in In The Arizona Court of Appeals in
These observations are not surprising. They reflect the very nature of the functions that these stakeholders perform. Common to them all, however, is a concern about maintaining public confidence in the criminal justice system, as each of them play a role in that maintenance. The NAS reports—through reflecting progression in scientific thought and/or a new presentation of existing knowledge—naturally have the potential to destabilize public confidence. Indeed, stakeholders have expressly recognized this.
With this in mind, the authors’ final suggestion is that the NAS—building on its current practices—more expressly shapes its reporting to account for the concerns of its primary audiences.
It is evident that the NAS does take into account the context within which its reports are situated. One such example is in set out resources/costings options; generate bite-sized steps to reform that can have a phased implementation (including short, medium, and long-term plans); set out actions that stakeholders can take internally to further investigate or remedy deficiencies and initiate reforms reported on; set out actions that stakeholders can undertake collectively or collaboratively; and provide express points of reference for stakeholders (e.g. suggestions for findings of judicial notice; novel findings; and/or points in time at which scientific consensus could be deemed to exist).
As part of this, the NAS can take a lead role in (1) facilitating cross-stakeholder collaboration; and (2) normalizing and explaining the nature of scientific method, progress, findings, and uncertainty.
The latter practice is, in particular, crucial. This is because many stakeholders are understandably nervous about taking actions that would undermine public confidence in the criminal justice system’s actors, processes, and institutions (by, for example, declaring a long-time used forensic science identification method to be unreliable or, from a court’s perspective, inadmissible). Law shapes the criminal justice system, and law is known for being skeptical about change, preferring to take approaches that achieve finality, predictability and procedural regularity.
Sarah Lucy Cooper, Deborah M. Hussey Freeland, For example, shortly following the publication of the NAS’ first DNA report, National Academy of Sciences, National Academy of Sciences,
The National Academy of Sciences is the United States’ leading science and technology think-tank, with an active commitment to “provide scientific advice to the government whenever called upon.”
Over the last 150 years, the NAS has generated a diverse and important portfolio of research, including six reports commenting on the status of forensic science evidence in the USA, namely
This two-part template first encourages the NAS to build on existing stakeholder engagement with its forensic science reporting. This includes developing referencing tools; targeting trending issues; engaging directly with states; and progressing existing national efforts. Second, the template encourages the NAS to be more expressly sensitive to the frameworks/cultures within which stakeholders operate. This may include reports setting out resources/costings options; bite-sized and phased reform plans; ideas for internal actions and external collaborations; and providing express points of reference. These suggestions will enable the NAS to take a lead role in (1) facilitating cross-stakeholder collaboration; and (2) normalizing and explaining the nature of scientific method, progress, findings, and uncertainty, so as to support stakeholders to maintain public confidence in the criminal justice system. This role aligns neatly with the NAS’ unique history, function, and mission.