Impressions and Comments on the Program: The Future of Forensic Science, Eye-Witness Identification and the Impact of the NAS Report  
By Gerald Clough, M.A., CSCSA

On March 19 and 20, 2009, I attended a program presented by The Center for American and International Law and funded by the Texas Court of Criminal Appeals. The first day was largely introduction to some of the forensic disciplines and some issues, specific and general. The second day was given over to perspectives on the National Academy of Sciences Report on the future of the forensic sciences. Law enforcement, judges, forensic scientists and lab managers, prosecutors and defense attorneys were present in both the faculty and audience. I attended hoping to gain some insight into the thinking of members and those close to the NAS committees participating in what was essentially a two-year congressional commission (an impressive number of whom were in attendance, along with five justices of the Texas Court of Criminal Appeals) and of those from various interests within the criminal justice system who were interested enough to attend (not near enough of whom could be there).

Disclaimer: While I took a fair volume of notes, they were primarily on various topics and comments in which I was particularly interested. I certainly did not seek to be able to report on each aspect of each presentation, and I do not intend to do so here. I will cite various presenters in order to provide perspective on their comments, but it would be unfair to both me and the presenters to imagine that I have accurately characterized their positions. The reader must take this as a less than formal commentary on the whole of the program and as one with which any other attendee might well take issue. The program was video-recorded. I have no idea if and how that might become available, but those interested may inquire of the Center (http://www.cailaw.org). And throughout, "I" means me, and "he" or "she" refers to the person cited.

Thomas Bohan is, as those who have heard him know, a rhetorical machine gun. He is the incoming President of the American Academy of Forensic Sciences. He presented the overview of the validation of disciplines issue. He wants a "body of respected people" to declare that a discipline has been validated or not. (Whenever I use "discipline," it should be taken to refer also to portions of the discipline. In fact, it would be pointless to appeal for validation of an entire discipline.) Validation does not mean a test of method or theory. It is largely a test of the reliability of conclusion thresholds. Dr. Bohan's illustration comes from medical evidence. A medical conclusion may be made from an accepted scientific theory, and the conclusion may be validated as a reliable product of a properly applied method relying on acceptably demonstrated knowledge. Or a medical conclusion may be offered claiming that it is clinically valid, validated by experience, and such testimony is most often unchallenged but does not arise from any theory or method the conclusions of which are subject to validation. Clinically valid evidence should rightly not carry weight equal to scientifically valid evidence, and such conclusions might be excluded if properly argued and free from traditional acceptance.

The important aspect of validation is that expertise in the field is not required to determine if validation has been done. Note carefully the distinction between performing validation studies (requiring expertise in the field) and determining if such studies have been done (field expertise not required). The Report is concerned with if scientifically acceptable validation studies have been done. I would venture to say that any of us could, without any significant medical science education, rather easily determine if medical testimony, properly examined, was based on scientific theory or was merely from clinical experience. Bohan notes that the committee adopted the presumption that all apparently scientifically rational validation studies were themselves reliable. They did not seek to validate the validations. And it was repeatedly emphasized that lack of validation does not imply lack of validity. (Some attendees who one might have reasonably presumed to be adept logicians had some difficulty with that concept.)

One of the most deeply felt recommendations was the creation of a National Institute of Forensic Sciences (NIFS). Bohan does not expect this to happen in his lifetime. It requires significant congressional action and funding, and other experiences (Australia) suggest that we might see NIFS in something like twenty years. Another participant pointed out that NIFS is needed because the forensic science community is the best student of validation and best practices. I think that also helps convey some perspective on the sort of time line to expect with regard to substantive change. Not this decade.

Kenneth Melson is Director of the Executive Office for United States Attorneys, which among other things, handles ethics complaints against USA's and AUSA's. He characterized the Report as a "wake-up call" for prosecutors. He believes one effect of the Report's coverage of lack of validation will be to prompt attorneys to do more pre-trial research. Prosecutors may be held responsible for sponsoring conclusions beyond the limits of validation, over-probity (overuse of "match," which by ASTM means having a common class, not individualization), and the use of associative evidence (DNA) to improperly bolster other evidence (eyewitness identification). He (as do others) points out that the NAS Report contains nothing new, no new information and no proposal not already put forward. It simply brings them all together in one document. (One examiner has told me they have already seen the Report cited in an admissibility challenge.)

Dean Gialamas, ASCLAD President and Director of the Orange County crime lab, spoke several times, but what stayed with me was his call for standard delivery of forensic sciences and the need for bias research. There is considerable diversity of available service among labs, and they do not appear to produce compatible results from the same evidentiary material.

In the discussion of legal issues, we heard from Carol Henderson, Director of the National Clearinghouse For Science, Technology and the Law and President of the American Academy of Forensic Sciences; Ken Melson, Judge Edwards from the Committee, and Hon. Harold Reinstein of the Arizona Supreme Court. I will not take the space to separate their comments.

The courts do not want to arbitrate in the role of something like NIFS. Quoting Stokes v State (FL SC '89), "The court is not a lab." The Report is not a judgment of the forensic sciences or particular cases. It proposes no rule or law changes. The issue of admissibility is not an issue of validation. All of this has been heard before in Daubert hearings. When confronted with the Report in hearings, attorneys should be aware that the Report is somewhat conclusary. The Report does not list validation and reliability studies that did not make the cut as being deemed worthy or that were not brought to the committee's attention. Judge Reinstein's comments are worthy of mention, as they represent the view that effects will be immediate. He believes there will indeed be more Daubert hearings and invocation of Rule 403, which excludes relevant evidence if "…its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury…" He points out that some federal courts are already limiting testimony from some disciplines to similarities alone. Further, some have found it very effective (in hearings, not trials) to conduct conversations between experts in court or in chambers on the issue of admissibility. This is strongly tied to the historical lack of challenge we know exists for many disciplines, our own included.

Randy Murch, Adjunct Professor at the Virginia Tech School of Public and International Affairs, wrapped up with some good perspective. He recounts that on the day the Report was released, he read and heard a number of comments by committee members and others about what the Report means, many of which he considers less than accurate. He characterizes the Report as a call for a strategy. A campaign for an achievable strategic national approach, not a call for an event - a report on what, not how.

I speak now of responses from attendees, writing more from impressions than detailed notes. Some defense attorneys responded vigorously to their perception that this was a call for autonomous crime labs serving all parties and limitations on just who could be proffered as an expert. They strongly objected to this notion as a due process problem. The response was that all parties recognize that there are many issues to work out with regard to autonomy and certification, and the Report merely points up the extant problems and the need to seek better ways, rather than any fundamental change in law.

I believe I perceived an interesting reaction among those very interested in actual innocence issues at one point. An experienced firearms examiner spoke, describing his discipline in very general terms and outlining a couple of cases, including the matching of some 400 casings to the weapons of 23 officers who fired in an incident and the discovery of casings from an additional officer who had not reported his discharges. I believe I detected an acceptance of the general reliability of his discipline, without regard to validation, and my impression was that there may be much to be gained from the proposed multidisciplinary approach to a national forensic sciences strategy and the mutual understandings that would come about.

Some things are quite clear, and some of them will have effect in the short term. Much of how the Report affects an individual practitioner or lab is going to be up to local prosecutors. The use of forensic science evidence is an evolving legal ethics issue and as such is an issue that can place a prosecutor's license in jeopardy. Expect prosecutors to be increasingly interested in exact language and proper weighting of evidence. I think we can also expect attorneys to take a greater interest in certification and articulation of rationale in matters of absolute conclusion. They will likely become more sensitive to the balance of probity versus misleading as to weight and will be prepared to argue the validation issue to limit testimony, perhaps to similarities.

The Report is not in any way a critique of law enforcement-based forensics. There was much talk of autonomy. But by autonomy, the consensus means pretty much what ASCLAD-LAB means: insulation of science management from agency administration. My impression is that it does not go even so far as an expectation that labs become even so independent of law enforcement as are medical examiners offices. Private practitioners are equally at issue. It is clearly recognized that, while provision of adversarial expertise is a real legal issue, it is an economic issue for local government. There seems to be a consistent opinion that although nothing will trespass on the right of a defendant to proffer anyone to testify, their admissibility standards will evolve along with that of the official experts. (There was more than one mention that psychiatry and psychology were not considered. The tone was rather of dirty laundry swept under the rug, to mix metaphors.)

One sector that was not apparently represented was the legislative sector, and there was little speculation on whether states would react with greater vigor to address concerns consolidated in the Report. But we must recognize that legislation is mostly a function of legal practitioners among whom awareness is being raised.
It is probably true that the typical latent print examiners practicing today will continue to practice very much as now for the remainder of their careers. As time passes, reporting may be the first activity in which change will be felt. One of the stated desires of a number of presenters was to the effect that forensic science must acquire the practice of reporting examinations in a manner more akin to other scientific endeavors; reports that are peer-reviewable, that detail what was done, observed, and concluded. This will be driven by all the stake-holders, law, science, and forensic science. Since awareness of ill-defined threshold for conclusion is a feature of the Report and associated discussions, I suspect that differing conclusions within a lab might no longer be definitively settled by supervisory vote or veto. Attorneys will likely become more aware of such dissent and its Brady implications if it is not reported.

A great deal was said about eye-witness identification. There is indeed a great deal that can be said, but what is important here is, I think, that it is almost a model - a "poster child" - for flawed forensics. It features severe challenges as to method and reliability, it has a long history, and it was traditionally viewed as a plain "common sense" matter about which no jury needed expert advice. Its lessons should be instructive for any comparative discipline.

Before I conclude, I should perhaps mention faculty whom I have not identified yet but who contributed to the discussion in important ways: Maj. John Blackledge of Palm Bay (FL) P.D.; Joseph Bono of the Indiana U. Purdue U. Forensic and Inv. Sciences Program; Jennifer Dysart of John Jay College of Criminal Justice; Hon. Barbara Hervey of the Texas C.C.A.; Ashraf Mozayani, Lab Director/Chief Tox., Harris Co. (TX) M.E.; Christine Mumma, Exec. Dir., N.C. Center on Actual Innocence; Capt. Ken Patenaude, Northampton (MA) P.D.; Carl Rone, Firearms Examiner; Ronald Singer, Tarrant Co. (TX) Crime Lab Director; Anjali Swienton, National Clearinghouse for Science; and Micheal Ware, Director, Conviction Integrity Unit, Dallas Co. (TX) D.A.

What did I come away with for latent print examination? First and foremost, that the forensic science has and will have a secure and vital role in criminal justice. Courts know its value and want to hear from its experts. Primarily, I heard that while the Report is largely a proposal to make a strategic map, we can reliably see the general lay of the land and the nature of the route. If we wish to continue concluding within our own self-imposed limitations, we must think seriously about how the reliability of those conclusions can be validated. This will not be the comfortable zone in which we wrangle about just what ACE-V means or how verification and conflict resolution happens. Method is decidedly not the issue. It means we must confront the plain issue of the scientific validity of declaring this is the source of that. It means articulating threshold in a manner amenable to scrutiny by scientific inquiry, not what was described for medical evidence as clinical validation. This will be work for the latent print practitioners who are working beyond this or that case, but working for the discipline and its future. It may well be work that defines when conclusions become admissible and when testimony is relevant but limited to demonstrable similarity. If anything was extravagantly clear, it's that the ball is and will be in our court, and it is the experts in each discipline who are tasked with validation and that no other can do it for them. The report is available for free online reading at the NAS web site and can be ordered in print and PDF forms. Anyone on the road would be, I think, remiss if they did not take a good look at the map.