[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
RAISING THE BAR: PROGRESS AND FUTURE
NEEDS IN FORENSIC SCIENCE
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 10, 2019
__________
Serial No. 116-43
__________
Printed for the use of the Committee on Science, Space, and Technology
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://science.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
37-583PDF WASHINGTON : 2020
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COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
HON. EDDIE BERNICE JOHNSON, Texas, Chairwoman
ZOE LOFGREN, California FRANK D. LUCAS, Oklahoma,
DANIEL LIPINSKI, Illinois Ranking Member
SUZANNE BONAMICI, Oregon MO BROOKS, Alabama
AMI BERA, California, BILL POSEY, Florida
Vice Chair RANDY WEBER, Texas
CONOR LAMB, Pennsylvania BRIAN BABIN, Texas
LIZZIE FLETCHER, Texas ANDY BIGGS, Arizona
HALEY STEVENS, Michigan ROGER MARSHALL, Kansas
KENDRA HORN, Oklahoma RALPH NORMAN, South Carolina
MIKIE SHERRILL, New Jersey MICHAEL CLOUD, Texas
BRAD SHERMAN, California TROY BALDERSON, Ohio
STEVE COHEN, Tennessee PETE OLSON, Texas
JERRY McNERNEY, California ANTHONY GONZALEZ, Ohio
ED PERLMUTTER, Colorado MICHAEL WALTZ, Florida
PAUL TONKO, New York JIM BAIRD, Indiana
BILL FOSTER, Illinois JAIME HERRERA BEUTLER, Washington
DON BEYER, Virginia JENNIFFER GONZALEZ-COLON, Puerto
CHARLIE CRIST, Florida Rico
SEAN CASTEN, Illinois VACANCY
KATIE HILL, California
BEN McADAMS, Utah
JENNIFER WEXTON, Virginia
C O N T E N T S
September 10, 2019
Page
Hearing Charter.................................................. 2
Opening Statements
Statement by Representative Eddie Bernice Johnson, Chairwoman,
Committee on Science, Space, and Technology, U.S. House of
Representatives................................................ 8
Written statement............................................ 9
Statement by Representative Frank Lucas, Ranking Member,
Committee on Science, Space, and Technology, U.S. House of
Representatives................................................ 9
Written statement............................................ 11
Witnesses:
Ms. Susan Ballou, Program Manager, Office of Special Programs,
National Institute of Standards and Technology
Oral Statement............................................... 13
Written Statement............................................ 15
Ms. Lynn Garcia, General Counsel, Texas Forensic Science
Commission
Oral Statement............................................... 20
Written Statement............................................ 22
Ms. Vicki Zemp Behenna, Executive Director, Oklahoma Innocence
Project
Oral Statement............................................... 35
Written Statement............................................ 37
Dr. Karen Kafadar, Professor and Chair, Department of Statistics,
University of Virginia, and President, American Statistical
Association
Oral Statement............................................... 43
Written Statement............................................ 45
Mr. Matthew Gamette, Crime Lab Director, Idaho State Police
Forensic Services
Oral Statement............................................... 59
Written Statement............................................ 61
Discussion....................................................... 87
Appendix I: Answers to Post-Hearing Questions
Ms. Susan Ballou, Program Manager, Office of Special Programs,
National Institute of Standards and Technology................. 110
Ms. Lynn Garcia, General Counsel, Texas Forensic Science
Commission..................................................... 116
Ms. Vicki Zemp Behenna, Executive Director, Oklahoma Innocence
Project........................................................ 120
Dr. Karen Kafadar, Professor and Chair, Department of Statistics,
University of Virginia, and President, American Statistical
Association.................................................... 123
Mr. Matthew Gamette, Crime Lab Director, Idaho State Police
Forensic Services.............................................. 126
Appendix II: Additional Material for the Record
Statement submitted by Representative Eddie Bernice Johnson,
Chairwoman, Committee on Science, Space, and Technology, U.S.
House of Representatives....................................... 130
Statement submitted by Representative Bill Posey, Committee on
Science, Space, and Technology, U.S. House of Representatives.. 132
Documents submitted by Mr. Matthew Gamette, Crime Lab Director,
Idaho State Police Forensic Services........................... 133
RAISING THE BAR: PROGRESS AND FUTURE
NEEDS IN FORENSIC SCIENCE
----------
TUESDAY, SEPTEMBER 10, 2019
House of Representatives,
Committee on Science, Space, and Technology,
Washington, D.C.
The Committee met, pursuant to notice, at 10:45 a.m., in
room 2318, Rayburn House Office Building, Hon. Eddie Bernice
Johnson [Chairwoman of the Committee] presiding.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman Johnson. Good morning. This hearing will come to
order.
I have to apologize for being late. There was a significant
program commemorating 400 years since the first slaves were
brought to this country over in Emancipation Hall, and I tried
to show my presence and was late getting over. So I apologize
for that.
But without objection, the Chair is authorized to declare
recess at any time.
I'd like to welcome everyone to the hearing.
The criminal justice system relies on forensic science to
identify and prosecute criminals and exonerate the falsely
accused. Unfortunately, for too long, the science in forensic
science was a misnomer. According to data from the Innocence
Project, 367 individuals convicted of violent crimes across 37
States have been exonerated as a result of DNA evidence. Nearly
half of these false convictions involved the misapplication of
forensic science, most often because of the lack of science
standards and training, but in some cases involving misconduct.
I am deeply troubled by the likelihood that these numbers
represent just the tip of the iceberg.
As revealed over many years of investigative reporting by
the Washington Post, for decades there were people in this
system who knew there were significant problems and stayed
silent or perhaps tried to speak up but were silenced by those
above them.
The 2009 report from the National Academy of Sciences
(NAS), ``Strengthening Forensic Science in the United States: A
Path Forward'' finally broke the silence and brought this issue
into the public discourse. The central conclusion of the report
was that the interpretation of forensic evidence across many
disciplines was severely compromised by the lack of supporting
science and standards. The National Academies recommended a
number of steps to improve the accuracy, reliability, and
validation for forensic evidence.
With a focus on the role of Federal science agencies,
especially the National Institute of Standards and Technology
(NIST), in 2012, I joined colleagues in the Senate to introduce
the Forensic Science and Standards Act. I continued to
reintroduce that legislation, but it never received a hearing
until today.
As forensic science plays an increasing role in our
criminal justice system, we are here today to explore how the
Science Committee can help improve forensic science practices
in the Nation. We'll learn about improvements since the NAS
report, with an eye to the improvements that will need to be
made. We will hear from the witnesses their recommendations on
how to strengthen existing legislation. This is an excellent
panel representing diverse perspectives, and we have a lot to
learn from you.
We have all heard heartbreaking stories of men and women
who have spent years, sometimes decades, in prison for a crime
they did not commit. These wrongful convictions take a profound
human toll on innocent men and women and their families and mar
the reputation of the justice system. And that's not all. One
study of 108 DNA exoneration cases found that 121 of the actual
perpetrators went on to commit an additional 337 crimes,
including rape and murder.
However, I am encouraged by all of the new partnerships and
efforts among the various stakeholders that were spurred by the
National Academies report. I look to my own State of Texas,
which has a troubled history with false convictions, as an
exemplar for forensic science transparency and improvements. If
we can do this in Texas, we can do this anywhere.
I look forward to a spirited discussion and to working with
my colleagues across the aisle to move bipartisan legislation
through this Committee. And I thank the expert witnesses for
your testimony today.
[The prepared statement of Chairwoman Johnson follows:]
Good morning and welcome to today's hearing.
The criminal justice system relies on forensic science to
identify and prosecute criminals and exonerate the falsely
accused. Unfortunately, for too long, the science in forensic
science was a misnomer. According to data from the Innocence
Project, 367 individuals convicted of violent crimes across 37
states have been exonerated as a result of DNA evidence.
Nearly half of these false convictions involved the
misapplication of forensic science, most often because of a
lack of science, standards, and training, but in some cases
involving misconduct. I am deeply troubled by the likelihood
that these numbers represent just the tip of the iceberg.
As revealed over many years of investigative reporting by
the Washington Post, for decades there were people in this
system who knew there were significant problems and stayed
silent, or perhaps tried to speak up but were silenced by those
above them. A 2009 report from the National Academies,
Strengthening Forensic Science in the United States: A Path
Forward, finally broke the silence and brought this issue into
the public discourse. The central conclusion of the report was
that the interpretation of forensic evidence, across many
disciplines, was severely compromised by the lack of supporting
science and standards.
The National Academies recommended a number of steps to
improve the accuracy, reliability, and validity of forensic
evidence. With a focus on the role of Federal science agencies,
especially the National Institute of Standards and Technology,
in 2012, I joined colleagues in the Senate to introduce the
Forensic Science and Standards Act. I continued to reintroduce
that bill but it never received a hearing, until today.
As forensic science plays an increasing role in our
criminal justice system, we are here today to explore how the
Science Committee can help improve forensic science practices
in the nation. We'll learn about improvements since the NAS
report, with an eye to the improvements that still need to be
made. We will hear from the witnesses their recommendations for
how to strengthen the existing legislation. This is an
excellent panel representing diverse perspectives and we have a
lot to learn from you.
We have all heard heartbreaking stories of men and women
who have spent years, sometimes decades in prison for a crime
they did not commit. These wrongful convictions take a profound
human toll on innocent men and women and their families and mar
the reputation of our justice system. And that's not all. One
study of 108 DNA exoneration cases found that 121 of the actual
perpetrators went on to commit an additional 337 crimes,
including rape and murder.
However, I am encouraged by all of the new partnerships and
efforts among the various stakeholders that were spurred by the
National Academies report. I look to my own state of Texas,
which has a troubled history with false convictions, as an
exemplar for forensic science transparency and improvements. If
we can do it in Texas, we can do it anywhere.
I look forward to a spirited discussion and to working with
my colleagues across the aisle to move bipartisan legislation
through this Committee. And I thank the expert panel for your
testimony today.
Chairwoman Johnson. I now will recognize Mr. Lucas.
Mr. Lucas. Thank you, Chairwoman Johnson, for holding
today's hearing on the state of forensic science in the United
States.
Forensic science is the study and application of science to
matters of law. As Members of the Science Committee, we're
focused on the science part of the equation, but we can't
ignore the law either. The integrity of forensic science can
have a profound impact on the lives of Americans who are
victims of crime and those accused of committing a crime.
The Constitution states only one command twice. The Fifth
Amendment says to the Federal Government that no one shall be
``deprived of life, liberty or property without due process of
law.'' The Fourteenth Amendment uses the same 11 words, called
the due process clause, to describe a legal obligation of all
States. These words are a commitment to fair trials and
judgments at all levels of American government.
This is important because most forensic science methods,
programs, and evidence are governed by State and local law
enforcement entities or are covered by statutes and rules
governing State judicial proceedings. Our task is to look at
what role the Federal Government can play to advance the
accurate, reliable, and fair use of forensic science. As
forensic science plays an increasing role in our criminal
justice system, it is important to make sure we are getting the
science right and that all Americans have confidence in the
fairness and integrity.
DNA evidence has revolutionized the justice system. When
properly collected and analyzed, DNA can be useful to identify
criminals with incredible accuracy. DNA can also be used to
clear subjects and exonerate people mistakenly accused of
committing crimes.
To date, over 350 individuals have been totally exonerated
by DNA analysis. The science of DNA is well-established, but
there are many other areas of forensic science that are still
evolving such as human hair analysis and bite mark
identification. The truth is forensic science is more complex
than what is portrayed on popular television shows.
Even when the science is well-supported, putting it into
practice in the field is a challenge. In many small police
departments across the country, law enforcement is not afforded
the luxury of specialization due to the community's size and
caseload. Not all police officers can be experts in collecting
and evaluating forensic evidence and may not be able to utilize
groundbreaking new tools.
The National Science Foundation (NSF) and the National
Institute of Standards and Technology can help address this.
Both agencies do important work on forensic science,
strengthening fundamental research and improving standards for
the practice of forensic science in criminal investigation. I
have said before that many Americans may not know the critical
role NIST plays in our Nation's innovation.
Today is another fine example. We will hear more about
their research in several forensic science disciplines and
their administration of the Organization of Scientific Area
Committees on Forensic Science (OSAC). Through OSAC, NIST is
bringing together experts in science, measurement, statistics,
law, and policy to develop and evaluate forensic science
standards. It is challenging work getting these communities to
cooperate, and I look forward to hearing how that process is
going and any recommendations to make it better.
As the Chairwoman stated, it has been 10 years since the
National Research Council issued their report, ``Strengthening
Forensic Science in the United States: A Path Forward.'' I'm
glad we have this opportunity to hear what progress has been
made since then and what work still needs to be done.
We have a distinguished panel of witnesses today who will
represent the science, law enforcement, and legal communities
to help us understand the challenges and opportunities in
forensics. I look forward to a balanced discussion of how we
can all work together to ensure Americans trust in the use of
science in our criminal justice system.
Thank you again, and I yield back, Madam Chair.
[The prepared statement of Mr. Lucas follows:]
Thank you, Chairwoman Johnson for holding today's hearing
on the state of forensic science in the United States.Forensic
science is the study and application of science to matters of
law. As Members of the Science Committee, we're focused on the
science part of the equation. But we can't ignore the law
either. The integrity of forensic science can have a profound
impact on the lives of Americans who are victims of crime, and
those accused of committing a crime.
The Constitution states only one command twice. The Fifth
Amendment says to the federal government that no one shall be
``deprived of life, liberty or property without due process of
law.'' The Fourteenth Amendment uses the same eleven words,
called the Due Process Clause, to describe a legal obligation
of all states.
These words are a commitment to fair trials and judgments
at all levels of American government.
This is important because most forensic science methods,
programs, and evidence are governed by state and local law
enforcement entities or are covered by statutes and rules
governing state judicial proceedings.
Our task is to look at what role the federal government can
play to advance the accurate, reliable, and fair use of
forensic science.
As forensic science plays an increasing role in our
criminal justice system, it is important to make sure we are
getting the science right and that all Americans have
confidence in its fairness and integrity.
DNA evidence has revolutionized the justice system. When
properly collected and analyzed, DNA can be used to identify
criminals with incredible accuracy. DNA can also be used to
clear suspects and exonerate people mistakenly accused or
convicted of crimes. To date, over 350 individuals have been
totally exonerated by DNA analysis.
The science of DNA is well established, but there are many
other areas of forensic science that are still evolving, such
as human hair analysis and bite mark identification. The truth
is forensic science is more complex than what is portrayed on
popular television shows.
Even when the science is well supported, putting it into
practice in the field is a challenge. In many small police
departments across the country, law enforcement is not afforded
the luxury of specialization due to the community's size and
case load. Not all police officers can be experts in collecting
and evaluating forensic evidence and may not be able to utilize
groundbreaking new tools.
The National Science Foundation (NSF) and the National
Institute of Standards and Technology (NIST) can help address
this. Both agencies do important work on forensic science,
strengthening fundamental research and improving standards for
the practice of forensic science in criminal investigation.
I have said before that many Americans may not know the
critical role NIST plays in our nation's innovation. Today is
another fine example.
We will hear more about their research in several forensic
science disciplines, and their administration of the
Organization of Scientific Area Committees on Forensic Science
(OSAC).
Through OSAC, NIST is bringing together experts in science,
measurement, statistics, law and policy to develop and evaluate
forensic science standards. It is challenging work getting
these communities to cooperate, and I look forward to hearing
how that process is going and any recommendations to make it
better.
As the Chairwoman stated, it has been ten years since the
National Research Council issued their report, ``Strengthening
Forensic Science in the United States: A Path Forward.'' I'm
glad we have this opportunity to hear what progress has been
made since then, and what work still needs to be done.
We have a distinguished panel of witnesses today who
represent the science, law enforcement, and legal communities
to help us understand the challenges and opportunities in
forensics.
I look forward to a balanced discussion of how we can all
work together to ensure American trust in the use of science in
our criminal justice system.
Thank you, and I yield back.
Chairwoman Johnson. Thank you, Mr. Lucas.
If there are Members who wish to submit additional opening
statements, your statements will be added to the record at this
point.
At this time I'd like to introduce our witnesses. Our first
witness is Ms. Susan Ballou. Ms. Ballou is a Program Manager
for the Forensic Science Research Program within the Special
Programs Office of NIST. Prior to her time at NIST, she worked
as a lead serologist for the Montgomery County Police
Department Crime Laboratory in Rockville, Maryland. She has
obtained expert status in Federal, State, and county circuit
and district courts.
She holds a master of science in biotechnology from the
Johns Hopkins University and a degree in criminal justice from
the University of New Haven in Connecticut.
Our next witness, Ms. Lynn Garcia. Ms. Garcia is the
General Counsel for the Texas Forensic Science Commission, a
position she has held since December 2010. In this role, she
assists the commission with investigations, manages the
commission's laboratory accreditation and analyst licensing
program, provides legal advice, and represents the commission
at various public meetings. She obtained her J.D. from
Georgetown University Law Center.
I would now like to recognize the Ranking Member Mr. Lucas
to introduce the next witness.
Mr. Lucas. Thank you, Madam Chair. And it's my honor to
introduce my fellow Oklahoman, Ms. Vicki Zemp Behenna, who
serves as the Executive Director of the Oklahoma Innocence
Project. She was previously an Assistant United States Attorney
for the Western District of Oklahoma, where she served with
distinction for 25 years. As a prosecutor, she was involved in
many high-profile cases, including serving on the team that
prosecuted and attained the conviction of Timothy McVeigh in
the Oklahoma City bombing case. The recipient of numerous
awards in her career and she's now in private practice teaching
as an adjunct professor at Oklahoma City University School of
Law.
She received her bachelor's degree in journalism from the
University of Oklahoma and her J.D. from the Oklahoma City
University School of Law. Welcome and thank you for
participating today, Vicki.
Chairwoman Johnson. Thank you, Mr. Lucas.
Our fourth witness is Dr. Karen Kafadar. Dr. Kafadar is
Commonwealth Professor and Chair of Statistics at the
University of Virginia. She currently serves as the President
of the American Statistical Association. She served on the
National Academy of Sciences committee that led to the
publication of the 2009 report, ``Strengthening the Forensic
Science System in the United States: A Path Forward.'' She also
previously chaired the Organization of Scientific Area
Committees Statistical Task Group. Dr. Kafadar's research
focuses on robust methods, characterization of uncertainty in
the physical, chemical, biological, and engineering sciences
and methodology for the analysis of screening trials.
She received her B.A. and M.S. from Stanford University and
her Ph.D. in statistics from Princeton University.
Our final witness is Mr. Matthew Gamette. Mr. Gamette is
Crime Lab Director with the Idaho State Police Forensic
Services, a position he has held since 2014. He previously
worked in the Spokane Laboratory of Washington State Patrol.
Mr. Gamette currently serves as an elected board member of the
American Society of Crime Lab Directors where he is President
and Chair of the Advocacy Committee. He's also served as Chair
of the Consortium of Forensic Science Organizations. In
addition, he currently serves on the NIST Organization of
Scientific Area Committees Quality Infrastructure Committee.
He received his bachelor's and master's degrees from
Brigham Young University.
As our witnesses know, you will have 5 minutes for your
spoken testimony. Your written testimony will be included in
the record for the hearing. And when you have completed your
spoken testimony, we will begin questions. Each Member will
have 5 minutes to question the panel.
We will start now with Ms. Ballou.
TESTIMONY OF SUSAN BALLOU,
PROGRAM MANAGER, OFFICE OF SPECIAL PROGRAMS,
NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY
Ms. Ballou. Chairwoman Johnson, Ranking Member Lucas, and
Members of the Committee, I am Susan Ballou, the Program
Manager of the Forensic Science Research Program at the
Department of Commerce's National Institute of Standards and
Technology known as NIST. Thank you for the opportunity to
appear before you today to discuss NIST's role in forensic
science. I'll address three different ways that NIST
contributes to forensic science: Research, development of
reference materials standards and guidelines, and convening the
forensic science community.
NIST established six focus areas of research: Firearms and
associated tool marks, digital and identification forensics,
forensic genetics, statistics, toxins, and trace. NIST
frequently collaborates with other Federal agencies including
the FBI (Federal Bureau of Investigation), DEA (Drug
Enforcement Administration), DOD (Department of Defense), ATF
(Bureau of Alcohol, Tobacco, Firearms and Explosives), and DHS
(Department of Homeland Security), as well as State and local
crime laboratories to identify key research areas.
The release of the 2009 National Research Council report
highlighted areas where forensic science research was needed
and made recommendations for improvements. NIST built on this
report in areas related to strengthening the scientific
foundation of forensic science examinations and focused on
improving AFIS (Automated Fingerprint Identification System)
interoperability and application of statistics to firearm
examinations.
In 2012, NIST, based on collaboration with DOJ's National
Institute of Justice, developed a process map of the steps
involved in latent print examination. Important improvements
have been made, and process maps are being created for other
forensic disciplines, including handwriting, DNA, and firearms
analysis.
Digital evidence is a growing area in forensic science.
Ensuring the reliability of software tools used to extract data
from computers and mobile devices is a critical need within the
law enforcement community. NIST is actively assisting in
testing computer forensic software tools. NIST also maintains
the National Software Reference Library, which is used to
improve efficiency in criminal investigation digital searches.
NIST research over the last 30 years has resulted in many
improvements in DNA measurement. For example, NIST developed
Standard Reference Materials or SRMs such as the human DNA
standard. This SRM is used by DNA labs to make sure their
instruments and methods are working properly, enabling accurate
measurements of DNA markers commonly used in forensic
laboratories worldwide for human identification. NIST continues
to lay the statistical foundation for calculating match
statistics that can help in cases with evidence that contain a
mixture of DNA from several people.
To assist in firearms analysis, NIST has created a standard
bullet and cartridge case to provide a calibrated measuring
service to ensure 3-D surface scanning microscopes are properly
calibrated. The SRM also improves interoperability between law
enforcement agencies which increased hits across State borders
resulting in law enforcement labs digitally comparing bullets
and enabling confirmation that the same weapon was used in
multiple crimes across multiple jurisdictions.
NIST research into the forensic science field of trace work
on paint, glass, hair, fibers, and tape is breaking new ground.
Using scientific methods, hair could be profiled using protein
in the hair shaft. In this way, two specific hairs, one from a
suspect and one from a crime scene, could be compared and given
a stronger probability of having come from the same person. To
identify anonymous hair found at a crime scene, a library of
cataloged hair could be created much like the DNA database.
NIST has conducted research into trace detection of opioids
and other illegal drugs to validate the accuracy of the
identification and quantification of controlled substances.
NIST is also developing methods to help investigators detect
drugs at crime scenes, in cargo, at transit hubs, and tools to
identify emerging synthetic and designer drugs. Detecting trace
amounts can prevent exposure of first responders to these
harmful drugs and identify the types of illicit fentanyl that
drug dealers may lace their supply with. This research can also
help first responders in determining the source of an overdose
and how to treat the overdose victim.
Five years ago, NIST established the Organization of
Scientific Area Committees for Forensic Science, or OSAC, to
facilitate the development and promulgation of consensus-based
documentary standards and guidelines. OSAC has a broad
representation of stakeholders from the forensic science,
legal, law enforcement, and research communities with more than
550 participants from 48 States. NIST stands ready to assist
the forensic science community.
Thank you for the opportunity to testify on NIST's work
regarding forensic science, and I'll be pleased to answer any
questions you may have.
[The prepared statement of Ms. Ballou follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman Johnson. Thank you very much. Ms. Garcia.
TESTIMONY OF LYNN GARCIA,
GENERAL COUNSEL, TEXAS FORENSIC SCIENCE COMMISSION
Ms. Garcia. Chairwoman Johnson, Ranking Member Lucas, and
Members, my name is Lynn Garcia, and I'm the General Counsel of
the Texas Forensic Science Commission (Commission). Thank you
for inviting me here to discuss the progress Texas has made in
the 10 years since the NAS report was published.
The Texas legislature created our Commission in 2005 in the
wake of a crisis in the Houston Police Department crime lab. At
first, the legislature gave our Commission one job: To
investigate allegations of professional negligence and
misconduct against forensic laboratories. Over time, the
Commission has evolved into an oversight body that crime labs,
law enforcement, and attorneys all rely upon for fair
consideration of scientific issues. We have nine members--seven
scientists and two attorneys--all appointed by the Governor of
Texas.
Using the core values of transparency, accountability, and
collaboration, the Commission has taken on major initiatives in
many of the areas mentioned in the NAS report. For example, we
recognize that national accreditation programs under ISO are
important but not a panacea. We use our statutory authority to
supplement the work of the accrediting bodies, including
additional audits, where needed.
We also require our forensic analyst to be licensed. In the
rare case that an analyst commits professional misconduct in
our State, he or she may face disciplinary action up to and
including revocation of the license. We maintain a code of
professional responsibility for analysts and crime lab
management so that everyone shares the same expectations. We
provide ongoing guidance on challenging scientific issues from
DNA mixture interpretation to efficient analytical methods for
distinguishing hemp from marijuana. We also act as a
facilitator and translator between the scientific and legal
communities.
Texas law requires crime labs to self-disclose
nonconformities. We provide an open and transparent venue for
resolving them outside of the adversarial system. We also
partner with the Court of Criminal Appeals to promote forensic
education and training of judges and lawyers, and we recently
worked with the Texas Commission on Law Enforcement to improve
crime scene training provided to peace officers.
Finally, and this is a recent development, we're partnering
with NIST in two key areas. The first is in the evaluation of
OSAC standards for implementation in Texas, and the second is
with respect to improving existing accreditation programs for
our laboratories. One area where we could use Federal support
is for forensic science research such as the initiatives
contemplated by H.R. 5795. State and local crime labs face
tremendous caseload demands, thus leaving precious little time
for research. While we strongly believe the oversight of
forensic laboratories should be left to the States, increased
support from the Federal Government for forensic research would
be helpful not just for Texas but for all States.
We would also like to stress the need to reauthorize the
Debbie Smith Act. This legislation dedicates much-needed
resources to State and local law enforcement agencies to
conduct forensic analyses of crime scenes, including untested
sexual assault kits.
I would like to close my remarks by reading a few lines
from the murder trial of Steven Mark Chaney from Dallas, Texas.
Mr. Chaney was sentenced to life in prison and served 28 years.
The lines I'm about to read are from the direct examination of
a forensic dentist who testified as the State's expert.
Question: ``Can you express your opinion?'' Answer: ``With
reasonable dental certainty and scientific certainty I feel
that Steven Mark Chaney made the bite mark on John Sweek.''
Question: ``And you also testified that someone else in the
world possibly could have made that bite mark. Do you have any
odds?'' Answer: ``One to a million.'' Question: ``Does that
appear in the scientific literature?'' Answer: ``Yes.''
On December 19, 2018, Mr. Chaney was declared actually
innocent by the Texas Court of Criminal Appeals, the State's
highest criminal court. The Commission reviewed a complaint
filed by Mr. Chaney regarding the bite mark analysis in his
case. Our members examined published literature, listened to
presentations from a range of forensic dentists, including
those who support the use of bite mark comparison and those who
do not. And after listening to all sides, the Commission
recommended bite mark comparison not be admitted in criminal
trials unless and until sufficient data exists to indicate that
such comparisons can be made reliably and accurately.
While we understand and appreciate our commission is not a
court and gatekeeping decisions are ultimately the
responsibility of the judiciary, we try to provide useful
information to judges to assist them in making difficult
gatekeeping decisions. What we found that is that, by and
large, they welcome the information. The vast majority of
judges want nothing more than to make the right call. They just
don't always have the tools they need to do it.
Texas is a law-and-order State, and with that core value
comes great responsibility. The Texas legislature understands
this, the Governor of Texas understands this. Legislators from
both parties have worked session after session to create
meaningful progress when it comes to the quality of forensic
science used in our State.
Is it perfect? No. Do we still have work to do? Absolutely.
But in reflecting upon the last decade, Texas has shown
tremendous leadership in forensic science reform. It has been
an honor for me to share that story with you today, and I'll
happily answer any questions. Thank you.
[The prepared statement of Ms. Garcia follows:]
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Chairwoman Johnson. Thank you very much. Ms. Behenna.
TESTIMONY OF VICKI ZEMP BEHENNA,
EXECUTIVE DIRECTOR, OKLAHOMA INNOCENCE PROJECT
Ms. Behenna. Thank you, Chairwoman Johnson and Ranking
Member Lucas and distinguished Members of this Committee for
the opportunity to discuss with you the intersection of
forensic science in criminal trials.
My name is Vicki Behenna, and I became the Executive
Director of the Oklahoma Innocence Project in October 2015.
Oklahoma City University houses the Oklahoma Innocence Project.
As previously stated, I was a Federal prosecutor for 25
years. As part of my experience as being a Federal prosecutor,
I had the opportunity to assist in the prosecution of Timothy
McVeigh. That was my first experience with the use of forensic
science in a criminal prosecution.
In 2009, I had a personal experience where a close family
member of mine was going through a trial where forensic science
was hidden. Exculpatory evidence was not provided, leading to
his conviction. It was that experience that caused me to retire
as a Federal prosecutor after 25 years and to join the Oklahoma
City Innocence Project because I understood from personal
experience the effect bad forensic science or Brady violations
can have on individuals who are accused in our criminal justice
system.
The weight that forensic science plays in modern trials
cannot be overstated. Lawyers, while we like to think that we
know everything about our case, cannot know science as well as
the scientists do. As a prosecutor, when a forensic scientist
or analyst came into my office and explained to me what this
forensic science meant and its value in the prosecution of the
case I was trying became increasingly important to me, and I
relied upon that expert's opinion.
What we have seen in Oklahoma through an individual by the
name of Joyce Gilchrist, who was a chemist with the Oklahoma
City Police Department, is that when forensic scientists and
analysts overstate the interpretation of forensic science, when
they overstate hair analysis, when they overstate and use bite
mark evidence and tell the prosecutor that that evidence
proves--that bite mark proves that this individual committed--
or was there and committed this act, we rely upon that, as I
said before, because lawyers can never know the science as well
as the scientists and analysts do.
Juries in our criminal justice system are the triers of the
facts. That's their role. They listen to the evidence that's
presented. They listen to the expert testimony given, and they
judge witness demeanor and credibility based upon their role of
being the judges of the facts. When experts come into a
courtroom and they tell the jury this hair came from this
individual or they give a statistical number that this hair
could only have come from this many individuals in society,
jurors believe that. They rely upon that in making decisions.
When bad forensic science is used, the results are devastating
for those who are accused of crimes in our criminal justice
system.
What I see with the Oklahoma Innocence Project is that many
times people serve decades in prison based upon bad forensic
science. Not all individuals and forensic scientists are like
Joyce Gilchrist. And I hate to keep coming back and using that
as an example, but it's something that happened in Oklahoma's
present and as part of what's happened in our modern history.
But we need standards. Lawyers need standards. Judges need
standards. And we need to rely on the forensic scientists when
they're testifying in court are testifying honestly and openly
about the science they've been asked to testify about.
The Innocence Project has made numerous recommendations
that are part of my written testimony, and I won't go over that
here, but our criminal justice system is designed to seek the
truth. It is designed to equally protect victims and the
accused. Because of the highly persuasive impact of forensic
science and forensic experts have on the scales of justice,
it's imperative that the science is validated and that forensic
experts are supported with the scientific resources they need
and that judges are properly educated in their gatekeeping
functions. Thank you.
[The prepared statement of Ms. Behenna follows:]
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Chairwoman Johnson. Thank you very much. Dr. Kafadar.
TESTIMONY OF DR. KAREN KAFADAR,
PROFESSOR AND CHAIR, DEPARTMENT OF STATISTICS,
UNIVERSITY OF VIRGINIA, AND PRESIDENT,
AMERICAN STATISTICAL ASSOCIATION
Dr. Kafadar. Madam Chair, Members of the Committee, thank
you for inviting me here today. I'm Karen Kafadar, Chair of
Statistics at the University of Virginia, also President of the
American Statistical Association, which has 18,000 members from
93 countries. I was an author of the 2009 report, which
emphasized the need for more collaborative research between
forensic scientists and the physical, chemical, biological, and
statistical scientists.
At the Committee's request, I'll just talk about the role
of the sciences and statistics in advancing forensic science
and standards, progress since the report, challenges that
remain, and recommendations to continue progress and overcome
these challenges, namely centralized leadership, funding for
research, and guidance to the courts.
First, forensic science in general progresses through
research collaborations. Statistics plays a key role in
evaluating proposed methods and interpreting data. The NAS
report highlighted these roles and made stronger connections
between the forensic science community and other non-forensic
scientists and statistical experts, leading to more reliable
forensic methods.
What progress has been made since the report? First, Chair
Johnson and other Members of Congress raised awareness of this
critical issue. Second, DOJ and NIST formed the National
Commission on Forensic Science. Commissioners cooperated and
issued effective and constructive statements on forensic
practice and testimony. DOJ disbanded this commission after
only 13 meetings.
Third, NIST created forensic science standards
organizations whose mission has been to endorse existing
standards for forensic practice. OSAC is comprised primarily of
those invested in the current system with only a few
researchers who could be considered as being at arm's length to
the existing forensic science system; thus, little change can
be seen in the standards that OSAC approves.
And fourth, with congressional allocation of funds for
competitively selected Center of Excellence to focus on
foundational research in pattern and digital evidence. Through
a cooperative agreement with NIST, this consortium of five
universities has been interacting with forensic practitioners
and crime labs and has achieved much practical research in 4
years, but the mandate is limited to research and training in
only two disciplines.
Challenges remain. The report from PCAST (President's
Council of Advisors on Science and Technology), by the way, in
2016 reinforced the continued shortcomings 7 years after the
NAS report. Efforts are being made to address them, but key
problems remain: lack of centralized leadership by an agency
with the expertise and commitment to develop forensic
disciplines and enforce standards grounded in science with
proper statistical analyses; a dearth of studies with honest
demonstrations of validity and reliability; inadequate funding
for these studies to support an independent agency; and lack of
guidance to the courts on how to handle forensic evidence that
is relevant but at best inconclusive.
With my colleagues I offer three recommendations. I do not
think any of them will be new to NIST. First, an existing
agency must take the lead. The NAS report emphasized that this
lead agency cannot be law enforcement. NIST has taken the lead
in improving forensic science. It can continue to develop
mechanisms to support validation and reliability studies for
forensic methods, build connections with practitioners, and
remain independent of law enforcement. Its agenda should be
informed by the forensic community but not be beholden to it.
Second, the OSAC currently is composed of mostly forensic
practitioners with few arm's-length researchers. It can improve
existing standards but cannot modify them. OSAC approves
standards that have been based on past practice. This is not
progress. Forensic standards cannot be issued if research
underlying them has not been conducted. Real progress is more
likely if OSAC units were closer to the 50-50 balance between
forensic community representatives and arm's-length scientists
who together can identify research needed to improve them.
And finally, more research is needed beyond two disciplines
in the present Center of Excellence. Research in other
disciplines may require more funded centers whose research
agendas are coordinated. Work arising from these centers,
especially regarding validation and reliability, should inform
OSAC decisions even when they challenge existing practice. If
these recommendations are adopted, we can have proper standards
on which the courts can rely with confidence.
In short, we have seen some progress but more is needed.
Without it, courts remain undirected and we have false
convictions and false acquittals. With proper leadership those
situations can be reversed. Thank you.
[The prepared statement of Dr. Kafadar follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman Johnson. Thank you very much. Mr. Gamette.
TESTIMONY OF MATTHEW GAMETTE,
CRIME LAB DIRECTOR,
IDAHO STATE POLICE FORENSIC SERVICES
Mr. Gamette. Chairwoman Johnson, Ranking Member Lucas, and
Members of the Committee, thank you for the opportunity to come
on behalf of the American Academy of Forensic Sciences (AAFS)
and testify today.
Since 1948, the American Academy has served a distinguished
and diverse membership of over 6,000 members divided into 11
sections of physicians, attorneys, dentists, toxicologists,
anthropologists, document examiners, digital evidence experts,
psychiatrists, physicists, engineers, criminalists, educators,
researchers, and others.
I'm also here representing the Consortium of Forensic
Science Organizations (CFSO). CFSO was formed in 2000 and is an
association of six major forensic science professional
organizations with a membership of over 21,000 forensic science
professionals.
I am currently the Laboratory System Director for the Idaho
State Crime Lab System. And since I started over 17 years ago,
forensic science as a profession has evolved and advanced,
quality management has intensified, and standards and
development has increased.
The National Academy of Sciences' study in 2009 was a
significant event in our community. The study supported the
forensic science community's ongoing efforts to improve the
practice and forensic science as a whole. With support from the
Federal Government, we have implemented many of the
recommendations from the report. Efforts such as the White
House Subcommittee on Forensic Science, the National Commission
on Forensic Science, the NIST OSAC, the PCAST report, and
discipline-specific research and validation studies have
advanced the practice of forensic science. Other Federal
efforts have been put in place to advance the science such as
the Forensic Laboratory Needs Technology Working Group, the
Forensic Science Technology Working Group, and the Council of
Federal Forensic Laboratory Directors.
These efforts are addressing currently accreditation and
certification, quality assurance, standards development, and
implementation, methods and protocols, education and training,
ethics, terminology, research, technology transfer, discovery
and transparency, statistics, standardized language and
reporting, and expert testimony.
Participation has spanned to at least 23 Federal
departments and agencies, thousands of Federal, State, and
local scientists and stakeholders. Since 95 percent of the
forensic science that happens in this country is performed at
the State, county, and local level, it is critical to include
all forensic, Federal, State, and local partners.
Federal working groups have worked on the accreditation of
forensic science service providers, the certification of
forensics examiners, and medicolegal personnel, proficiency
testing, a national forensic science code of ethics, standards,
research and development, and technology transfer.
One particularly helpful initiative has been the NIST OSAC.
OSAC works to strengthen the Nation's use of forensic science
by facilitating the development of technically sound forensic
science standards and promoting their adoption. These standards
are written documents that define the minimum requirements,
best practices, standard protocols, and other guidance to help
ensure that the results of forensic analysis are reliable and
reproducible.
The more than 550 members are experts from Federal, State,
county, and local government agencies, academic institutions,
and private entities with expertise in over 25 forensic science
disciplines. OSAC is highly collaborative in their processes.
OSAC efforts have expanded into identification and
prioritization of research needs that can be accomplished at
NIST, NIJ (National Institute of Justice), and other Federal
agencies.
The DOJ has developed guidance documents for uniform
language and testimony and reports for all Federal
laboratories. While research, including black-and-white box
studies, is increasing, more resources must be dedicated to
bolstering the scientific framework and open access publication
of findings.
Findings for research and funding for research has been
sparse at best. Data shows that most major forensic science
providers are accredited and have quality control programs.
Most forensic science practitioners are accountable to one or
more codes of professional conduct. Our community has adopted
many of the recommendations from a variety of committees,
commissions, and boards.
In conclusion, our needs for a successful forensic
enterprise are fairly simple. One, we need continued support of
the Federal Government to fund efforts to increase forensic
laboratory and medical examiner capacity, capability, and
training. Two, we need the OSAC codified at NIST with
sustainable funding. Three, we need fiscal and operational
support for laboratory and medical examiner office
accreditation and forensic science providers certification. We
need, finally, a coordinated and well-funded Federal research
strategy that includes close partnership of practitioners and
researchers.
Providers are seeing an unprecedented increase in the work
needed to investigate criminal cases. A needs assessment of
laboratories and medical examiners is imminent from the
Department of Justice, and we understand that there are dollar
figures associated with those needs. I would urge this
Committee to review those reports while contemplating any new
legislation that may affect the operation of forensic science
service providers.
It is vitally important to the criminal justice system in
the United States to properly resource forensic science in the
United States. A healthy and robust forensic science provider
network is important for this country to prosecute true
perpetrators, exonerate the innocent, and provide closure for
victims of crime.
We thank you again for this Committee taking this issue
seriously and helping us address this issue, and I would also
stand for any questions.
[The prepared statement of Mr. Gamette follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairwoman Johnson. Thank you very much. We now will begin
our questions part. And I'll yield myself 5 minutes.
Ms. Garcia, I want to commend you and the Commission for
your efforts to date for transparency about the ongoing
challenges and for your continued push for improvement. Texas
is probably not the first State most people would think about
as a model for forensic reform. Yet you have achieved
significant improvements over the last several years. Can you
offer any recommendations about best practices or core
principles for achieving forensic reform that could apply to
any State?
Ms. Garcia. Thank you, Madam Chairwoman. I think one of the
reasons we've had success in Texas is because, number one, we
have a legislative process, as you well know, that is very up
close and personal. And so the members of the legislature in
Texas spend a lot of time hearing the stories from exonerees,
real-life issues that come up about particular areas of
forensic science that may have contributed in some part to a
wrongful conviction. Those messages resonate. So that's part of
it, our legislative process.
But the main thing I would say is we have tried our best to
create a culture in our Commission where we take the
adversarial process and set it aside to have a genuine
conversation in a transparent manner about what are the issues
that are being faced by lawyers, by judges, by the forensic
scientists. The labs bring their issues to us in the form of
self-disclosure, and we talk about them in a public meeting.
And that goes a long way to understanding and resolving some of
the hardest issues that we have.
We don't shy away from reviewing things retroactively. If
we've identified a problem such as when the FBI came out and
said they had all these problems with the hair microscopy
analysis, we looked at all those cases. We don't shy away from
that, same thing with DNA mixture interpretation. And it takes
as long as it takes, and we get the resources we need to
address it and we do it together. So hopefully that answered
your question.
Chairwoman Johnson. Thank you very much. Ms. Behenna, at
the risk of inviting the joke of the Texas-Oklahoma rivalry,
are there discussions in Oklahoma about studying the Texas
model for best practices that might be implemented in your
State and others?
Ms. Behenna. We are working--and I say we, the Oklahoma
Innocence Project is working with the State Bureau of
Investigation to review cases in particular where hair analysis
was used and possibly could have resulted in a wrongful
conviction. It is more of an ad hoc basis right now rather than
a collaborative effort, which is what is going on in Texas.
There is much discussion in Oklahoma about criminal justice
reform. Part of that discussion is trying to do in a more
systematic way review of cases where bad or debunked forensic
science has been used and its effect on possibly convicting
somebody who was innocent, but not systematically, as I said,
as you all have experienced in Texas.
Chairwoman Johnson. Thank you. The 2009 National Academy of
Sciences report was the first organized voice of scientists,
practitioners, and other experts recognizing the limitation of
pattern evidence techniques and the urgent need to address
these limitations. What are the most important advances in the
use of application for forensic science in the past decade? And
this is going to be for everyone. The second question is, what
in your view are currently the most significant weaknesses
regarding the use of application of forensic science? And I'll
start with you, Ms. Ballou.
Ms. Ballou. NIST realized there were issues with the
comparison of fingerprints and bullets, using what we call
different techniques of the pattern evidence, and, therefore,
establishing more of a measurement process where you would
actually have an algorithm that was recognizing the comparison
process and giving a numerical value to the examiner would
increase the value of what they're seeing between those type of
comparisons. And that's what the National Academies addresses,
that it was more of a visual comparison by the scientists
instead of having a numerical support.
Chairwoman Johnson. Thank you.
Ms. Garcia. I would say in terms of most important, I think
there was a recognition that the way it's been done for a long
time through apprenticeship, you know, one person teaching the
next person who teaches the next person about a technique,
recognizing that that is not the best way to go about a
scientific analysis, that was important. In Texas what we
realized is that is not the fault of those who are doing the
teaching or those who are receiving the information. So trying
to address those issues in a blame-free way has been very
helpful, but we took the lead from the NAS report.
In terms of weaknesses, people are just--they're trying so
hard to get through casework they just need more support.
Chairwoman Johnson. Thank you. My time has expired. Mr.
Lucas.
Mr. Lucas. Thank you, Madam Chair. Ms. Behenna, we are
grateful for your perspective here as a legal practitioner with
a long and fruitful career in Oklahoma, including being on the
team that prosecuted the Oklahoma City bombing case. But as a
former prosecutor and currently a litigator, you've sat on both
sides of the courtroom. Can you expand for us with some
thoughts about what information would be useful for lawyers and
judges to determine the validity of forensic evidence and how
to judge the qualifications of the forensic expert witnesses
because these are issues you dealt with?
Ms. Behenna. So----
Mr. Lucas. And that's a very open-ended question, and I
understand that.
Ms. Behenna. It is. With regard to educating lawyers and
judges about forensic science and its validity I guess is a
better way to phrase it, I think that has to come through
education. As I told you before, as a young prosecutor, when an
analyst came into my office or forensic scientist came into my
office and they said this test means this or this comparison
means this, I took that without question. And so I think it's
important and I think there started to be discussion amongst
lawyers, prosecution and defense lawyers, about sometimes we
don't get it right, and sometimes science needs to be validated
and it needs to be tested. So I think that's the most important
piece as far as educating and talking to practitioners. We have
to rely on forensic science, as I said before.
With regard to--you know, I think it's important for
judges--judges, as I said in my written testimony, have a
gatekeeping function. Before any expert can testify in a
criminal proceeding or a civil matter for that matter, a judge
has to evaluate the credentials of the person testifying and
evaluate the science. And there are 702, 703, the rules of
evidence. But sometimes judges as well are not well-educated on
the validation or lack of validation of certain scientific
techniques, and so I think in that respect, even though judges
will continue to have a gatekeeping function, they need better
education.
Mr. Lucas. Mr. Gamette, let me turn to you. Idaho like
Oklahoma is made up of many very rural communities. And there
are special challenges in collecting and analyzing forensic
evidence in rural communities. I assume Idaho is much like
Oklahoma. My county sheriffs and my deputy sheriffs, my local
chiefs of police and their patrolmen literally are jacks of all
trades. They do everything in these little communities. What
recommendations do you have for ensuring that no matter where a
crime occurs we can have confidence in the way forensic
evidence is handled?
Mr. Gamette. Thank you for the question. I do see
challenges in our rural agencies that we tried to address first
by direct training, so we send out our staff. We send them from
the crime lab itself and we educate these officers. We work
together in partnerships. We collect evidence alongside of
them, which I think is mainly important there. We want to
prevent any unequal access to justice, so meaning a small
community should not have less access to forensic services than
you would have in a major metropolitan community. So we need
resources to be able to put into all of these local communities
training, education for these officers, early training at post
and those sort of things to be able to address these needs that
they have.
Mr. Lucas. Literally in Oklahoma my local law enforcement
in many cases on the city, county level depend on the Oklahoma
State Bureau of Investigation (OSBI). And by the time you have
an event occur that requires that kind of data collection, it
can be an hour or two sometimes before their specialist can get
to the field to some different part of the State, and this
information does deteriorate after all.
In my final moments I'd like to turn to Ms. Ballou and
discuss NIST being given the challenge of bringing scientists,
law enforcement, and lawyers together to achieve consensus.
Tell us how that process is working, putting all these various
minds, in the remaining time, together.
Ms. Ballou. So you can imagine when you set up a new
organization that there will be bumps in the road as you
progress. And it was a learning experience. We found with the
OSAC, with the size of it--550 members, actually was a little
larger than when it first started--is that bringing everybody's
personalities, expertise together and those who actually
indicated that they learned a considerable amount from being
part of that organization, as to what they initially thought
was an easy task to do. And after listening to the other
experts, whether it was in statistics or academia, they
realized there was a lot they needed to learn also.
And so at this point NIST has learned that there are some
changes that are needed in the OSAC process to make it more
fluid and to obtain faster and increased results from it.
Mr. Lucas. Expired, Madam Chair. I yield back.
Chairwoman Johnson. Thank you. Ms. Bonamici.
Ms. Bonamici. Thank you. This is a fascinating and
important topic. I appreciate the expertise of all the
witnesses.
The right to a fair trial and the presumption of innocence
are real cornerstones of our criminal justice system, and we
know that jurors and judges and prosecutors and defense
attorneys all rely on the scientific evidence by forensic
analysts. It's labeled expert testimony, as Ms. Behenna noted.
That gives it a highly persuasive impact. But we know that
forensic evidence is not always reliable.
My home State of Oregon there's a lawyer named Brandon
Mayfield. He lives not too far for me. I know him because our
kids went to school together. After the 2004 train bombing in
Madrid, Spain, Brandon was arrested and incarcerated based on
fingerprints. His fingerprints were on file because he served
as a lieutenant in the U.S. Army. He was incarcerated for a
couple of weeks. The FBI broke into his home, tapped his
phones, went through his garbage.
Later, a couple weeks after Brandon was incarcerated, the
FBI admitted it made a mistake, despite the fact it was later
revealed that the Spanish authorities had told the FBI
apparently multiple times before his arrest that the
fingerprints were a negative match.
Now, the government eventually apologized and paid Brandon
and his family a couple million dollars, but I'm not sure that
Brandon and his family will ever fully recover from the trauma
they went through. It affected the whole community but
certainly him, so my point is that this is a really critical
topic that comes up in many ways.
I want to follow up on Ranking Member Lucas' question about
training for judges and lawyers. And I want to ask about
current training models and whether they could be scaled
nationwide. The Federal Judicial College provides training for
Federal judges. The National Judicial College provides training
for State judges. They're already providing forensic science
training. Is there anything more that either organization can
and should be doing in this area? Ms. Garcia, Ms. Behenna, I
think might answer that.
Ms. Garcia. One thing we're trying to develop in Texas
based on feedback from our judges is actually a resource that
they can access from the bench because, as Ranking Member Lucas
mentioned, some of them are in very rural parts of the State.
They cannot physically make it to the judicial conferences and
the trainings, so we're trying to bring the resources to them.
Ms. Bonamici. Interesting. Thank you. Ms. Behenna, do you
have any thoughts on that?
Ms. Behenna. No, I really don't. And it's--I mean, I wasn't
aware--I knew that there was some training that was going on at
least on the Federal level, not aware of the State, but, I
mean, I would rely upon obviously Ms. Garcia with her----
Ms. Bonamici. Thank you. I also wanted to talk a little bit
about one of the recommendations from the NAS study that--13
recommendations for improvements. One of them is fund research
on sources of human bias in forensic science. I wonder if you
could talk a little bit about that.
There was a suggestion during Brandon Mayfield's whole
event that there was bias because after Brandon married his
Egyptian wife, he converted to Islam, so there was some
suggestion that his son was taking Spanish, so when they found
the computer--there were just a lot of things that were alleged
to be caused by bias. So anybody want to address the extent
that human bias affects these cases? Mr. Gamette and then Ms.
Behenna.
Mr. Gamette. I can say that right now practitioners are
actively working on this issue. There are several laboratories,
including Houston and Phoenix, Arizona, where they're working
on human bias with researchers, performing research in the
laboratory, putting precautions into place to address this very
issue.
Ms. Bonamici. I think that's something that's fascinating.
Maybe we can follow up in another hearing. Ms. Behenna, your
thoughts on that or Dr.----
Dr. Kafadar. Kafadar.
Ms. Bonamici. Kafadar.
Dr. Kafadar. Yes, thank you. The Center of Excellence to
which I alluded and where I'm working, I participate as well.
Some of the projects involve trying to assess the level of bias
and how you can modify the presentation of the materials to
minimize the bias. There is also, in the OSAC that we
mentioned, the three resource committees, and the last page of
my testimony shows the organizational chart. There are three
resource committees, one of which is human factors, and they
try to assess any of the standards that come through to ensure
that there is a minimum bias in them.
Ms. Bonamici. Terrific. Ms. Behenna, do you have a thought
on that as well?
Ms. Behenna. Just quickly to follow up and that is that I
think that a forensic scientist's independence--I'm sorry--and
understanding that he is independent or she is independent will
be helpful as well in eliminating bias.
Ms. Bonamici. Absolutely. I see my time is expired. I yield
back. Thank you, Madam Chair.
Chairwoman Johnson. Thank you. Mr. Posey.
Mr. Posey. Thank you very much, Madam Chair.
In preparation for this hearing I contacted the sheriff in
the county where I live and asked him for his thoughts or
anything that I might be able to add to the conversation based
on his experiences. And this is a statement that he gave me
that I'd like to enter into the record.
Chairwoman Johnson. Without objection.
Mr. Posey. Thank you. ``As a career law enforcement officer
with over 39 years of public service, I applaud the A.G.
Sessions' position to disband those who seek to weaken the
criminal justice system with the creation of the National
Commission on Forensic Science. Ending a so-called group of
advisers made up of attorneys and scientists whose sole purpose
was designed to discredit and reject reliable and admissible
forensic evidence was the right thing to do then, and it still
remains true. What should be discussed is how our Federal law
enforcement partners can help with forensic funding to expedite
the lab submissions and eliminate untimely evidence backlogs.''
And so having submitted that, I'd just like to start with
Mr. Gamette, ask what you think we can do in that regard to
help eliminate those backlogs. I know I've heard some
discussion say it takes so much time, it takes so much time,
but, you know, what would be the best way to eliminate the
backlogs?
Mr. Gamette. I think there's several issues there. One is
in funding, and Coverdell is one of the main options that you
have for funding in the laboratories. That Coverdell funding
goes directly for instrumentation, for personnel, and other
things that will directly impact the backlogs significantly.
The other thing is in training. What we need is a bridge
training to get people from education directly impacting the
crime lab turnaround time. So we need a better transition plan
to get those students from college into the laboratory.
Sometimes it can take 6 months to 2 years to train those
people, and that's not helpful when we need to eliminate the
backlogs today.
Mr. Posey. OK. Now, do you see that we have an adequate
crop of aspirants for those positions? With an awful lot of TV
programs now dealing with these subjects, I would think there
would be a whole lot more public interest.
Mr. Gamette. We do have a number of applicants for every
position that we advertise. Sometimes we have a problem getting
them through the background and polygraph process to be honest,
but we do have a number of people that can take those jobs.
It's a problem of transitioning them from their college
education programs into a very specific niche of science.
Mr. Posey. Very good. Thank you. Doctor?
Dr. Kafadar. You were asking what can be done to reduce the
backlog?
Mr. Posey. Yes, just your thoughts on that.
Dr. Kafadar. So I used it to work at Hewlett-Packard
Company and they would continue to, you know, do processes. And
what I often found is that when we designed statistical
experiments to identify the factors that were affecting the
sources of variation and the yield, you know, the percentage of
proper products that were being outputted from the process,
they actually saved a lot of time.
Mr. Posey. OK.
Dr. Kafadar. So it was a matter of process control.
Mr. Posey. Thank you.
Dr. Kafadar. Yes.
Mr. Posey. Ms. Behenna.
Ms. Behenna. Yes, I won't profess to know how to clear a
backlog. I will tell you that I hear from my friends at the
OSBI who complain all the time about their backlog and forensic
testing. It's a matter of resources.
Ms. Garcia. Thank you. The Texas legislature has heard the
same complaint that your sheriff made from various members of
law enforcement around our State, and I'm very happy to report
that this year they've really focused on it. They have funded
the transition that Mr. Gamette spoke about. They're funding
Sam Houston State University, the University of North Texas
Health Science Center to take those students and really get
them bench-ready faster and more efficiently. They are also
dedicating a lot of money to Texas DPS (Department of Public
Safety) to help them reduce the backlogs. So I think--and they
are expecting results, so it will be interesting to see what
happens during the interim in the next legislative session.
Mr. Posey. So the State has taken a lot of responsibility
there clearly.
Ms. Garcia. Yes, sir.
Mr. Posey. OK. Thank you.
Ms. Ballou. NIST has the opportunity to look at the actual
processes that are in place at the crime labs. Therefore, we
hear from the scientists as to where they actually have the
difficulty. Do they need a quicker version of a particular
methodology to assist in expediting the analysis of whatever
the evidence might be? And we had success with that when the
DNA was coming on board specifically with 9/11. They needed a
method that was quick on determining what possible DNA existed
in the dust that was collected at the site, so NIST took it
upon themselves to look at a different type of methodology or
procedure. We continued to do that and look forward to working
with scientists on areas where they need to look at the backlog
areas or the logjams that are in the analysis process.
Mr. Posey. Well, thank you all for your good answers, and
my time is expired. I yield back.
Chairwoman Johnson. Thank you very much. Mr. Lamb.
Mr. Lamb. Thank you, Madam Chairwoman. And thank you to all
the witnesses for being with us today.
I also used to be a prosecutor before I was in Congress,
and actually one of the biggest cases in my career I consulted
an expert from NIST, which helped us kind of push the case over
the line. We had really high-quality fingerprint evidence, the
science for which has come under debate, as Ms. Bonamici talked
about. But it kind of is what it is.
The issue in our case had more to do with the creation of a
digital image of those fingerprints, which is a newer area of
science and the law and was like very much under attack, the
reliability of those images, whether they're clear enough to
really make a match and that kind of thing. And it was somebody
from NIST that we talked to and consulted with for months and
months and months and got input on that really allowed us to
prove the reliability of what the FBI had done in that case.
So it was a real success story and for me kind of shows
how, when you have non-traditionally--or I guess scientists
that are not traditionally connected to the criminal justice
system weighing in on some of these topics, it can really
strengthen the underlying practice of forensic science.
So I guess my question is, if the NCFS (National Commission
on Forensic Science) has been disbanded for lack of a better
word but NIST remains engaged in these subjects and wants to
make other contributions, is NIST kind of the home institution
for integrating forensic science and traditional and emerging
science now to make sure we still get those same kind of
results going forward?
Ms. Ballou. My honest answer would be I'd love to see that,
but what actually happens is NIST is so involved with all the
Federal agencies and the scientists within them, and we work
collaboratively as to where are the difficulties to expand on
the research. But NIST is also a part of the Council of Federal
Forensic Laboratory Directors, so we sit at the table with the
Directors of all the Federal agencies to listen to what the
issues are, what are the concerns, where do they need
additional measurement science applied.
And in addition, the National Institute of Justice has held
two meetings now, which the sole point of these meetings is for
every agency to list the research projects that are taking
place so that agencies can see where they can collaborate on a
particular project, to stop duplication and to make maximum use
of the Federal budget. So in that point I don't say NIST is
taking lead. We're more part of the collaboration of agencies
within the Federal agencies.
Mr. Lamb. And do you feel like the institutional framework
is such that you're getting close enough collaboration
particularly with those engaged in criminal investigation and
prosecution to be able to continue to play that role?
Ms. Ballou. We are and I believe the OSAC is doing a
wonderful process of updating even NIST with what the State and
local needs are, which of course being in the Federal arena we
don't always hear. So having them as participants right at our
doorstep brings us back to where their concerns are and at that
level.
Mr. Lamb. Thank you. Dr. Kafadar, you kind of touched on
this a little bit in your testimony as well. Can you just weigh
in on the role of NIST as it stands today in the absence of
NCFS and maybe where you see things going forward?
Dr. Kafadar. Yes, I used to work at National Bureau of
Standards, which of course became NIST, and I agree it's a very
collaborative organization. That's the sense of the scientists
that work there. So I think that the kinds of roles that Ms.
Ballou was describing are consistent and should be encouraged.
Regarding the interaction with the various disciplines, and
I agree that OSAC has been very useful in pulling together a
lot of people.
Mr. Lamb. Great. And I just wanted to ask about one last
topic, which was the reference, Ms. Ballou, to the work you all
are doing on detecting trace amounts of opioids and
particularly synthetic opioids. I have a bill that we're
circulating now trying to gather support for called the POWER
Act. It's--there's a companion part in the Senate as well that
Senator Sherrod Brown is pushing. And essentially, we're trying
to get opioid-detection equipment in the hands of more local
first responders and crime labs that can detect fentanyl and
the synthetic versions that are coming out because a lot of
times the existing equipment might detect heroin but not
fentanyl. So I just wanted to flag that for you. If there's
anyone at NIST that wants to weigh in on either of our bills or
suggest ways that we can make them even more comprehensive or
help law enforcement more, particularly as you discover new
synthetic analogs, I think this is going to be a problem for us
for a while, please contact my office.
Ms. Ballou. I appreciate that, and we will be in contact.
Mr. Lamb. Thank you. I yield back, Madam Chairwoman.
Chairwoman Johnson. Thank you very much. Mr. Weber.
Mr. Weber. Thank you, Madam Chair. Boy, this is interesting
stuff.
Mr. Gamette, I'm going to start with you. Reading through
your remarks and stuff, you mentioned that I think the AAFS was
founded in 1948. And we've come a long ways because we didn't
have a lot of the DNA and the technology that we have now back
then.
So it's very interesting to me. And I had to be away from
the hearing for a bit, so I apologize if this is redundant. Is
there a national crime info system on DNA that everyone can
feed into, different States, different counties, different
agencies, so that the Nation as a whole knows where that
information is located?
Mr. Gamette. Yes. There is a very extensive DNA database
system in this country run by the FBI through the Department of
Justice, and all local and State agencies that qualify, meet
the FBI requirements, they have to go through very strict
quality assurance categories and other things and be audited.
But they can upload data that can be shared between the States
both for arrestees and also for case data so that that data can
be compared. We do it every day.
Mr. Weber. So you call it case data. Of course there's all
kinds of DNA evidence, right? You could call it a fluid, a
hair, I don't know, skin, whatever else--how do you maintain
the integrity of those, and do all those other agencies have to
go and examine those personally?
Mr. Gamette. The profile that you'd be looking at in CODIS
or the national DNA index system would be a series of numbers,
and so those numbers are compared to each other digitally. All
that work is done in the database itself. And so the States
generate a DNA profile from whatever type of evidence it is.
Whether it's biological, from blood, hair, saliva, anything
could be entered. But we developed a profile and then the
profile is compared in the index.
Mr. Weber. So, this might be a legal question. So in a
case, does the law enforcement agency have to physically see
that evidence or it's just the, Ms. Garcia, you're shaking your
head no. So they can go there and they can get the numbers
rather, and that's admissible in court and you don't have to
actually have that evidence. Is that accurate?
Mr. Gamette. So we have the evidence. The evidence would be
collected at the scene. It comes into the laboratory. The
evidence will be examined. Sometimes you might see the blood.
Sometimes you might not. It might----
Mr. Weber. So that evidence is still maintained in each
particular jurisdiction----
Mr. Gamette. It is generally.
Mr. Weber [continuing]. Is what you're saying.
Mr. Gamette. It comes into the State to be examined or to
the local to be examined, and then it goes back to the agency
once it's been examined and a DNA profile has been developed.
Mr. Weber. OK. Thank you for that. Ms. Garcia, you said
that you were hoping to develop a resource for judges they
could use from the bench. What's the progress on that?
Ms. Garcia. So, right now, we don't--we're just starting to
outline it. We haven't--we just got funding to do this, so our
fiscal year starts September 1. We're developing that, and
hopefully, we'll be able to share it with other States when
it's done.
Mr. Weber. Congressman Posey read an interesting statement
from his sheriff. What did you think about that sheriff's
statement?
Ms. Garcia. I understand that perspective. There are many
members of law enforcement in our State who would share that.
For someone who is out in a rural area with not much support,
what's going on in Washington is very, very far away from the
reality of what they have to contend with day in and day out.
So we've made a special effort to work with law enforcement in
more rural jurisdictions to make sure that whatever policy
initiatives we envision from Austin, which also feels far away
for some jurisdictions----
Mr. Weber. I spent 4 years there.
Ms. Garcia. Yes. That that--that those are doable,
achievable for smaller agencies. And they will tell us when we
are off course, and we will do our best to make course
corrections.
Mr. Weber. Is there--and this is a question--and I have
about 40 seconds left. Is there one particular entity that sets
the standard for--call it whatever you want, forensic--my son's
in the FBI. I think he deals with forensic data from financial
crimes and stuff, so I know forensic is kind of a broad term I
guess. But in forensic data, there's DNA and all those kinds of
things, who sets the standards so that forensic people are
qualified? Who does that? Ms. Ballou? You're awful quiet.
Ms. Ballou. It depends on what area of forensic science
you're looking at. As you already mentioned, FBI sets the
standards for DNA submission of profiles. So everyone looks to
them for; what do I have to meet to get that in? But for what
each individual has to meet to, say, be certified in the
profession or for their agency to be accredited, I would say
that everybody's kind of on their own on that one, on deciding
what the agency expects to see in their employees and in their
divisions and departments.
Mr. Weber. But Ms. Garcia is putting that together so that
she could have that to offer to judges.
Ms. Garcia. I did want to make a comment. In Texas you
must----
Mr. Weber. You look like you did.
Ms. Garcia. Yes. So in Texas we're the only State that
requires a license to practice, so you must fulfill certain
criteria that the legislature has set----
Mr. Weber. And there's 87 different entities that Texas
recognizes and 40-something are outside of Texas and 40-
something in Texas?
Ms. Garcia. Yes, sir.
Mr. Weber. OK. I'm way over my time. Thank you for your
indulgence. Thank you, Madam Chair.
Chairwoman Johnson. Thank you. Ms. Horn.
Ms. Horn. Thank you, Madam Chair, and thank you to our
panel of witnesses.
And I would be remiss not to say it's good to have a
constituent and resident of Oklahoma's 5th District.
So, Ms. Behenna, I'd like to start my questioning with you.
I think in your testimony, especially looking at the
intersection of forensic science and criminal trials and how we
do our best to ensure that the science is good and that we're
finding that balance in the courtroom, it's been touched on in
a couple of the other previous questions that we need to train
judges, we need to train attorneys. And your transition from
prosecutor to head of the Innocence Project is an interesting
one. So my question is in what kind of training and way can you
overcome the hurdle or the predisposition of accepting the
information just as it's given to you or helping prosecutors
and judges to understand their role in this process?
Ms. Behenna. The greatest resource that I have right now
is, quite honestly, the State Bureau of Investigation, the
OSBI. We work very closely with the State Bureau of
Investigation. If I have a question about a DNA report that
came from a smaller county in Oklahoma, I can call the OSBI. I
feel that they feel that they are independent scientists, and
they're there to help anybody, whether it's a prosecutor,
defense lawyer, or somebody at the Innocence Project.
So there is not, again, a system in Oklahoma. I hope to
resolve that sometime soon, not as soon as obviously as Texas
has gotten on the ball with this. But hopefully that there is a
resource like the OSBI that defense lawyers can contact and
prosecutors can contact and questions things that they're told
by their analysts and their experts.
Ms. Horn. Thank you. And to follow up on that for a moment,
you mentioned a system and the progress from the Innocence
Project. Have you noticed an impact of organizations like the
Innocence Project or other organizations like the work that's
being done in Texas informing trials and prosecutors,
especially in places like Oklahoma where we have a significant
problem with incarceration in clearly and sadly some high-
profile cases of misuse of forensic evidence?
Ms. Behenna. When I left the U.S. Attorney's Office and
explained to people that I was going to go do defense work and
be the Executive Director of the Oklahoma Innocence Project, I
think my friends on the prosecution side, both Federal and
State, thought I had lost my mind. But I constantly engage in
conversations with them to help them understand all of us have
one goal, and that is to see that justice is done. That's a
statement that I learned as a very young prosecutor at the
Department of Justice. My role was to do justice. If that meant
somebody was acquitted, so be it. Justice was served.
And so we're beginning this conversation in Oklahoma about
justice is the most important idea. Because of this personal
experience that I have, maybe I have a little more credibility
when I tell people we need to make sure we do it right. They
seem to listen. So it is my hope that in the future, at least
in Oklahoma and around the country, people will understand that
it's the importance of justice. That's what we're all working
toward.
Ms. Horn. Thank you. And, Ms. Garcia, I wanted to ask a
little bit more about effective procedures and how that can
translate. Clearly, Texas has put in a lot of work to other
States that may not be as far along and what the most effective
procedures have been to identify mistakes, fraud, and bias on
the front end if States or other places aren't able to fully
implement the same type of system that Texas has.
Ms. Garcia. So Texas took the language in the Paul
Coverdell law very literally, and they created an agency that
investigates allegations of professional negligence and
misconduct. That process and doing that transparently is how we
started--and doing it fairly is the single best tool we have.
Most States do not do that. They assign the task either to the
A.G. or to an Inspector General or something like that. But we
have a Commission with dedicated scientists who do that. And so
the issues get vetted in a much more thorough way. That's where
I would start in any State.
Ms. Horn. Thank you. I yield back.
Chairwoman Johnson. Thank you very much. Before we go to
the next questioner, let me express my appreciation to you, Ms.
Behenna, for being here. I know you're going to have to leave
soon to make your connections. You've been a very import
witness, and we appreciate you being here.
Dr. Babin.
Mr. Babin. Yes, ma'am. Thank you, Madam Chair. I appreciate
it. And I want to tell all the expert witnesses thank you for
your testimony today. It's fascinating.
The use of forensic science has changed the way that we are
able to study crimes and prosecute wrongdoers by providing more
factual clarity in the evidence that we collect. The accuracy
that has been brought to the courtroom since the introduction
of forensic science is really pretty astounding.
And I notice in your opening statements in 2016 where the
Texas Forensic Science Commission issued a decision
recommending a moratorium on the use of bite mark evidence in
future criminal prosecutions in Texas, I remember that. I
practiced dentistry for 36 years in a rural area in east Texas,
and I remember close to 20 years ago our Sheriff's Office
brought a container of skeletal remains by my dental office and
asked me if I would help in trying to establish an
identification. And I did my report, and I told the chief
deputy, I said, ``well, I've done everything I can do. You
know, I have to have some comparisons.'' And I thought it would
be 6 months, and just a few days later he brought me several
records, dental records from other dental offices, and we made
a positive identification.
And sadly, they were never able to solve that case, but the
family did receive some closure about what happened to their
young son. He was a U.S. Marine who had been home on leave. So,
anyway, I thank you very much. It's certainly an important
aspect of our criminal justice system.
And you had mentioned, several of you, about how long it
takes to be trained and certified to be a forensic scientist. I
know how long it takes to become a dentist, although we do have
specialties in forensics and dentistry, and it does take a
little while longer. But did I hear one of you say it took
about 2 years to get trained up to do this? You said that, Mr.
Gamette?
Mr. Gamette. Yes, sir. It can take somewhere between 6
months to 2 years is generally a training period that we would
quote.
Mr. Babin. OK. And so the training--do you have just
academia, universities and colleges, or is this kind of like a
vocation or what type of 2-year training does that entail?
Mr. Gamette. We hire scientists to work in our
laboratories, so generally they will have a 4-year degree or
more advanced degree----
Mr. Babin. OK.
Mr. Gamette [continuing]. Master's degree----
Mr. Babin. Right.
Mr. Gamette [continuing]. Ph.D. in the science that they're
working in.
Mr. Babin. OK. Thank you. And I have the privilege of
representing a Houston district that stretches all the way to
Louisiana by the way, and I want to just take a minute to
commend the Houston Forensic Science Center (HFSC). HFSC was an
early adopter of high standards approved by the Organization of
Scientific Area Committees of Forensic Sciences, of which many
of you know is administered by NIST and strengthen this
Nation's use of forensic sciences.
And, Ms. Garcia, you're a Texan. Do you have any
recommendations or ideas on how NIST could build off of their
ongoing relationship with States to better their systems and
make improvements?
Ms. Garcia. Yes, sir. Actually we've invited NIST to our
last two meetings, and we are trying to follow in HFSC's
footsteps--as you mentioned, they adopted the standards early--
by working with all of our labs so that we take the same
position Statewide. And I think what NIST is going to need to
do is go State to State and work with the responsible
laboratories to make that happen everywhere.
One thing I just wanted to note quickly is with respect to
human identification using dental records, we have no issues
with that.
Mr. Babin. Oh, yes, I understand.
Ms. Garcia. OK. Just to make it clear.
Mr. Babin. But, you know, I graduated from dental school a
while back, and I remember when bite marks were supposed to be
positive proof, and that all went out the door at least in the
State of Texas in 2016, so I understand.
And, Ms. Ballou, would you care to comment on that as well,
with NIST and ongoing relationships with States?
Ms. Ballou. One of the activities NIST has taken under
their wing was to request the NIST scientists to actually visit
and take part in crime laboratories. And we've done so with the
Maryland State Police and the Montgomery County Crime Lab.
Those are both fairly close to the NIST Gaithersburg campus.
And we've also visited several agencies in New Jersey and I
believe Pennsylvania as well. And it has turned out to be a
real eye-opener to our scientists.
When I first arrived at NIST coming from a crime laboratory
I was asked to help the research move faster to be applied into
the actual workings of the crime laboratory. And when I was
shown some of the results of the research I said, well, why are
you using those items to test? And they said, well, these are
the pure items we always test to determine whether the
technology works. I said, well, let me put some spit on it,
dirt on it, and some other things, and that would represent
what we truly receive from the crime scene. And so it's been a
real educational process, and NIST has really expanded the
activities that it had taken forth on this.
Mr. Babin. Thank you very much. It's fascinating. I could
ask all of you questions for about an hour, but I'm running out
of time, so I'll yield back. Thank you, Madam Chair.
Chairwoman Johnson. Thank you very much. Dr. McNerney.
Mr. McNerney. Well, thank you, Chairlady. And I want to
thank the witnesses. I mean, this is very informative
testimony, and I hope we can sort of change that into Federal
law in a positive way and Federal funding, too, so, again, I
thank you.
There is an intersection in the discussion with the idea of
bias and explainability with artificial intelligence. Ms.
Garcia, with the advances in computational forensic science
such as probabilistic genotype for DNA analysis and algorithmic
firearm analysis, with this replacing human analysis and
interpretation of evidence, can we maintain a defendant's
constitutional right to cross-examine and challenge evidence
against them when the evidence was produced by computers?
Ms. Garcia. Thank you for the question. I think there's a
misunderstanding about probabilistic genotyping in particular
that there is no human element there. There actually is. We've
been looking at that very closely in Texas. We are an early
adopter of probabilistic genotyping. I do think that analysts
need to understand what the software is doing. They need to be
able to answer questions on cross-examination about what the
software is doing. It should not be used as a black box to plug
information in and just get out a result. We've actually--we
are just now working on a couple of cases where we saw problems
in the way the analysis was done, and we're using those as
learning tools to help the labs understand that it is not a
black box. And there are still human judgment calls that are
made. No analyst should testify if he or she does not
understand what that software is doing.
Mr. McNerney. Thank you.
Ms. Garcia. I hope that answers your question.
Mr. McNerney. So that should be a defendant's toolbox is,
hey, this stuff comes from a black box, and we don't have any
way to cross-examine?
Ms. Garcia. I would say that at least in Texas the type of
software that the labs are adopting there is plenty of room for
defendants to ask questions about what's going on underneath
that. It's not actually as much of a black box as I think
people think it is.
Mr. McNerney. Thank you. Ms. Kafadar, how should forensic
standards evolve to address not only advances in the science
but implementation of forensic methods and software?
Dr. Kafadar. Implementation of forensic----
Mr. McNerney. Of forensic methods----
Dr. Kafadar [continuing]. Methods, yes.
Mr. McNerney [continuing]. And software.
Dr. Kafadar. So I actually was glad that you asked that
question to Ms. Garcia about probabilistic genotyping, and I
agree with her answer that there are software programs that
could be used to give objective--less subjective output. I
think the challenge is in making those algorithms transparent.
Right now, I think a number of the algorithms used in Automated
Fingerprint Identification Systems remain proprietary.
And then also I think one of the real things that we want
to do with those--that output is try to put some
characterization as far as how likely is the output. Is it
something that could apply to 20 percent of the population or
only, you know, one in a million? So it would go a long ways
toward making a more objective assessment of what was the
output of the software.
Mr. McNerney. Well, do you have concerns about the
ascendancy of artificial intelligence in forensic science?
Dr. Kafadar. In general, I think there's a lot of
statistical foundations that needs to be--it needs to be
applied to artificial intelligence algorithms. I think there
have been a number of articles about that, and I would agree
that there--there are a couple of aspects that arise with
artificial intelligence algorithms versus the statistical
foundations, and I think that stat foundations can enhance
artificial intelligence algorithms because right now they're
very dependent on the particular data on which they are
developed.
Mr. McNerney. Yes. Thank you. Ms. Ballou, in next-
generation sequencing algorithms known as probabilistic genome
software used to interpret complex DNA mixtures, this
technology is widely used in forensic labs across the country.
However, it's not nearly as mature as people may think it is.
What do you think the current state of maturity is of next-
generation sequencing?
Ms. Ballou. And from NIST's point of view that is still
under research. We are taking a look at it. It's a new area
that we're investigating, and to find exactly where we are on
that particular type of project we'll get back to with further
information.
Mr. McNerney. Well, it's--I mean, it sounds a lot of--in
the past a lot of opinion has been passed on as science and has
put a lot of innocent people in harm's way one way or another.
So this is important, and I appreciate the hearing. Thank you.
Chairwoman Johnson. Thank you very much. Dr. Baird.
Mr. Baird. Thank you, Madam Chair. And thank you,
witnesses, for being here today. I appreciate your sharing your
information.
Ms. Ballou, I'm going to start with you. My home State of
Indiana has made a significant investment in technology-based
programs, substance use programs, mental health treatment
services for those that are incarcerated. So is NIST able to
measure the impacts of State investments like this and
incorporate those into your overall program? And I think you've
answered some of those, but I'm going to give you another
chance because I'd like to see how you feel about that.
Ms. Ballou. That's an interesting question, and I do not
believe I have additional information to provide for you at
this time.
Mr. Baird. So let's try another one then, OK?
Ms. Ballou. OK.
Mr. Baird. In my community in west central Indiana, and
across the country, as we all know, fentanyl and other
synthetic drugs are causing a shocking increase in the number
of deaths. Could you elaborate on NIST's work on the standards
and for detecting these illicit drugs?
Ms. Ballou. NIST is working on improving the current
technology that is used to screen for the presence of certain
drugs. Right now, we're trying to make it so that there's the
smallest amount of contact between the first responder and the
suspicious material. We're still working to improve the
process, and we hope to get that out to the community so that
they can apply it as soon as possible.
Mr. Baird. Very good. Mr. Gamette, what challenges do you
face in your laboratories with analyzing illicit drugs, and
what would you like to see us help you to get your work
accomplished?
Mr. Gamette. The challenges we see are instrumentation,
which is very expensive in these disciplines, mainly toxicology
and drug chemistry. It's also very expensive to train analysts
in this discipline. It's expensive. NIST is providing some help
on getting standard reference materials for us. That's been
very helpful. So some of that research work to go into
identifying panels for doing the validation study of these
instruments when they come into the laboratory, that's also
very helpful because it takes us a long time. What we haven't
mentioned in this hearing is validation has to be done of every
scientific discipline and every scientific instrument before we
can use it in the laboratory. So all those things take
resources to be able to do.
And with the medical examiners, they're also dealing with
this opioid crisis and need resources, and they also have
severe workforce issues that we need to start dealing with.
Mr. Baird. Thank you very much. I appreciate and I
recognize the need for standards here and being able to use
those as reference materials as you make comparisons, so I
think that's extremely critical. And that was more of a comment
than a question.
So, Ms. Garcia, can you elaborate on how the Texas
Commission is working on the NIST Standards Coordination
Office? You've probably answered part of that. And do you have
any recommendations for how NIST could better coordinate with
other States or with the States?
Ms. Garcia. Thank you for the question. So when I refer to
the Standards Coordination Office, what I'm talking about is
actually not the OSAC. It's a separate part of NIST that
interacts--helps regulators, both Federal and State, to work
with accrediting bodies. So all of our laboratories are
accredited, but what we've seen over the last 10 years is that
accreditation has great benefit but it also misses some things.
And some of those are major things.
So what we are trying to do is work with that body so that
they can help us set up a list of--in addition to the ISO
program, these are the things that we'd like to see in Texas
laboratories. And then we'll work with the accrediting bodies
so that they can assess the labs against that extra list. And
it could include everything from human factors considerations,
all sorts of things. So that's what I meant with that comment.
Mr. Baird. Thank you. And one last, I've got about 36
seconds I guess, so Ms. Ballou, can you elaborate on how you
prioritize the work in your forensic science and----
Ms. Ballou. We prioritize our work really by listening to
the experts, the forensic scientists themselves to learn where
are the issues that they're facing. We also pay attention to
what are the latest court issues that are taking place, what
concerns actually happened in the courtroom, is there somewhere
that we can apply measurement science to address those issues?
Mr. Baird. Three seconds. You did very well, thank you. I
yield back.
Chairwoman Johnson. Thank you very much. Ms. Wexton.
Ms. Wexton. Thank you, Madam Chair, for yielding, and thank
you to the panelists for appearing today.
Before I became an elected official, I served--I'm a
recovering lawyer. I served as a prosecutor. I was a criminal
defense attorney, and I was even a judge for a while, so I have
seen firsthand how incredibly persuasive forensic evidence is.
In fact, a lot of times during voir dire certainly in serious
felony cases I would inquire of the venire, ``How many of you
would convict without some sort of forensic evidence, whether
it be fingerprints or DNA or a certificate of analysis?'' And
it was surprising to me, but on just about every panel there
would be some people who would say I would not convict without
that information. So it works both ways. So, you know, I have
seen at all different cases how we have used forensic evidence.
Now, in 2005--my home State is Virginia, and in 2005, we
changed the DWI (driving while intoxicated) statute in
Virginia. We're all accustomed to the .08, you know, liters
percent per--you know, by weight, by volume, or per 2/10 liters
of breath. But Virginia changed our statute to have presumptive
levels of cocaine, methamphetamine, MDMA, and PCP in blood for
presumptive impairment.
Now, that was interesting to me, so when I saw--it was
before I served in the State legislature. I went to look up the
legislative history, and I saw that there really wasn't any.
And when I spoke with Members who were, you know, present when
this was passed, I asked them, you know, what kind of
scientific evidence was presented about the impairment levels
with these various, you know, milligrams of substance in the
bloodstream, and there was--nobody had any recollection of
anything.
So that got me thinking about--now, I haven't seen any
cases, by the way, being prosecuted under this particular
section, but that got me thinking, as we have--you know, there
are more and more States that have legalized marijuana, it is
still presumptively illegal to operate a motor vehicle under
the influence of marijuana in those States where it's legal.
So I guess my question is kind of a two-part question.
First of all, who makes the determination--you know, how is
that determined what that presumptive level of a substance
would be to bring up to the level of impairment? And second,
are there any--is there anything going on in the area of
marijuana intoxication that NIST is involved with or any of the
other State labs are involved with?
Ms. Ballou. Actually, NIH (National Institutes of Health)
had done considerable studies. We're working with Dr. Marilyn
Huestis, who was lead on that, and she was looking at, what are
the effects of marijuana? How does it impair different people?
We were hoping to take that information and then start working
with other entities that have similar experience on determining
a detection process.
So NIST had worked with FIU, Florida International
University, who had expertise in determining some of this
relative information and trying to devise some type of
detection instrument that would be similar to the breathalyzer
that you could take in the field and have somebody breathe
into. The difficulty is that the exhalation of the metabolites
from the marijuana differ from person to person. So we're still
at the stage of trying to figure this out and also working with
legislators as to what should that level be for impairment.
Ms. Wexton. And could the level of impairment for one
individual be different from another individual?
Ms. Ballou. Yes, it could.
Ms. Wexton. OK. But it's like alcohol in that regard?
Ms. Ballou. Yes.
Ms. Wexton. Ok. How about other substances like the cocaine
or MDMA or PCP?
Ms. Ballou. At this time we're not working on those
particular substances as that would have to be a blood draw,
correct?
Ms. Wexton. Yes.
Ms. Ballou. And therefore, further work within the
laboratory would take place on that. And at this time I don't
recall if NIST is involved in those particular testing
procedures.
Ms. Wexton. OK. Ms. Garcia, do you have anything to add
about those processes?
Ms. Garcia. I would just say that I don't think we have
limits or detection levels in Texas on those substances. I
think any presence of that in the blood is going to be grounds
for potential offense. In Texas marijuana is not legal but we--
the legislature just passed something similar to the Federal
farm bill. So right now, we're working very closely with the
D.A.'s on distinguishing hemp from marijuana.
But in terms of marijuana in the blood and impairment, I
know from talking with our toxicologists it's a particularly
tricky issue in terms of how you set the line for impairment
for operating a motor vehicle.
Ms. Wexton. Very good.
Ms. Garcia. So we need help from NIST.
Ms. Wexton. Thank you very much. I see my time has expired.
Chairwoman Johnson. Thank you. Mr. Tonko?
Mr. Tonko. Thank you, Chairwoman, and thank you for holding
this hearing on the state of forensic science in America. And
thank you to our witnesses for joining us today and your
expertise shared. Chairwoman Johnson, thank you for your
leadership on this issue.
I fully support efforts to establish scientific standards
and protocols across forensic science disciplines. DNA evidence
has quickly become one of the cornerstones of justice in
America. As our knowledge and technique in using this evidence
improves, we need to make certain that our progress relies on
credible, rigorous science.
New York's 20th congressional District, which I represent,
has established itself as a home to national leaders in
forensic science. The Forensic Investigation Center in Albany
holds New York's DNA database, a vital resource to all who
fight in the name of justice. That DNA data bank has helped
with more than 3,000 convictions and has exonerated some 27
innocent New Yorkers.
Professor Igor Lednev at the University of Albany is
working to develop new novel methods for forensic and medical
diagnosis. With the help of more than a decade of continuous
funding from the National Institute of Justice, he was able to
develop the first universal method for characterizing
biological stains at the scene of a crime, revealing the time a
crime was committed and vital personal details such as age,
race, and sex. This novel technology can help investigators
analyze a possible crime scene much more quickly, avoid more
false positives, and help reduce forensic backlogs that plague
every criminal laboratory in America and ultimately speed up
lengthy legal proceedings for violent crimes.
Dr. Ray Wickenheiser, Director of the NYSP Crime Laboratory
System, together with Dr. Lednev, have proposed creating a
first-of-its-kind incubator for the development and validation
of such novel technologies in forensic science. This will be
the first incubator in the United States based on a State
police crime laboratory that brings together researchers and
inventors from academia--in this case the University at
Albany--with engineers from private industry.
These efforts show how and where forensic science currently
excels, but they should also help us address the areas of
forensic science where our standards have failed to prevent
grave injustices that can result from its misuse. For example,
it has been common practice for experts to overstate the
reliability and certainty of forensic science methods presented
as fact. Juries and judges are sometimes misled into thinking
expert testimony is supported by credible science even when the
methods used were scientifically unreliable. This practice
serves no one and leads to wrongful convictions and injustice
for all. The Federal Government has a duty to press forward
with the best science to ensure that our justice system employs
those methods and eliminates the use of junk science.
So my question is to you, Ms. Ballou. Throughout your
career and your work at NIST and your work with the American
Association of Forensic Science, you have firsthand
understanding of the role of both public and private sectors in
ongoing forensic science reform work. Is there a role for these
types of public-private partnerships in this field? And what
commitments and investments could both sectors make to
improving forensic science research and practice?
Ms. Ballou. I'd say our first activity from NIST and the
public-private was the establishment of the OSAC as we were
able to pull in some of the private entities to provide their
expertise for NIST understanding. We hope to expand upon that
to have considerably more information shared between the
different variety of groups.
Mr. Tonko. And how can the Federal Government assist in
these types of partnerships like that of the New York incubator
for the development and validation of novel technologies in
forensic science?
Ms. Ballou. I think you've heard today a lot of examples of
different ways of establishing commissions or other institutes
that look at the establishments of new technology throughout
these States, the local or the Federal areas to expand that. So
activity is already taking place. We just need more of them.
Mr. Tonko. Thank you. And, Mr. Gamette, have there been
changes in university curricula and general approaches to
education of forensic examiners over the last decade to ensure
that they have stronger scientific and statistical
understanding?
Mr. Gamette. Yes, there have been. Several of those changes
have been made through FEPAC, which is a forensic education
organization that is run by the American Academy of Forensic
Sciences. And I think more progress needs to be made in this
area, but I think the scientists and the colleges are starting
to recognize that to get jobs in a major crime laboratory
they're going to have to educate the science--the scientists to
those jobs that they're going to go into.
I will also mention just briefly on what Ms. Ballou was
talking about, there is a lot of work that's going on by
several different groups, the Midwest Forensic Resource Center,
the CSAFE (Center for Statistics and Applications in Forensic
Science) that exists at NIST, in partnering the practitioners
directly with the researchers, funding the research, but then
making sure that they have the application of the practitioner
there so that it does go into practice once the research is
completed.
Mr. Tonko. Thank you very much. And with that, Madam Chair,
I yield back.
Chairwoman Johnson. Thank you very much. Mr. Perlmutter.
Mr. Perlmutter. Thanks, Madam Chair. I'm usually the last
one because I always come in last. But I appreciate your
testimony.
Mr. Posey's letter from his sheriff made me think about the
whole reason for today's hearing. And I appreciated that his
sheriff wanted to see more criminal enforcement and all that
sort of stuff, but we start with beyond a reasonable doubt. And
where does that come from? So I actually looked it up.
So you start with Abraham and Sodom and Gomorrah. The Lord
didn't destroy Sodom and Gomorrah till Lot's family had escaped
because he was going to favor the innocent over the guilty.
Then Muhammad says if there are any doubts in the case, then
use them, for it is better for the judge to err toward
leniency. Maimonides said let a thousand guilty go free, lest
one innocent suffer. William Blackstone at the beginning of
English jurisprudence said 10. I don't know why he reduced it
from 1,000 to 10, but Benjamin Franklin--and I would refer to
Benjamin Franklin and quite frankly John Adams before I refer
to the sheriff from whatever county that is in Florida.
Benjamin Franklin took it to 100. He said it is better 100
guilty persons should escape than one innocent person should
suffer. And John Adams said, it is of more importance to the
community that innocence should be protected than it is that
the guilty should be punished.
And so that's the reason for today's hearing. That's the
reason we need to have our laboratories led by NIST really be
as excellent as possible so that we don't convict innocent
people. We lean toward allowing the guilty to go free.
So Ms. Ballou, I was at the National Water Quality Lab on
Friday in Colorado, so at the Federal center in Colorado where
they were talking about trying to detect environmental issues
down to one part per trillion. And so from a statistics
standpoint, from a scientist standpoint, how do you guys
determine if something is beyond a reasonable doubt? Or is that
we're just going to leave it up to the jury?
Ms. Ballou. So--it would help if I hit the button--I
received that question when I was testifying once. Do you
believe your testimony confirm beyond a reasonable doubt? And
at that time I wasn't quite sure what that meant, beyond a
reasonable doubt.
And from the National Commission on Forensic Science, our
attorney general at the time determined that none of the
prosecutors should be using that phrase; beyond a reasonable
scientific certainty because it is uncertain exactly what it
means. And therefore, at NIST we look more toward, what is the
scientific basis of a methodology or procedure? That would be
our determination. In looking at the procedures that we put in
place, are they scientifically solid? Is there a foundation
established? And from that point on, then determine to what
degree can we give a response to the jurors, to the officers of
the courts as to our findings.
Mr. Perlmutter. Anybody else? Good answer, by the way.
Ms. Garcia. I would say that the importance of teaching our
scientists what the limitations are of what they're saying is
so critical in response to your question. If someone gets up
and says so-and-so left that bite mark to a reasonable degree
of scientific certainty and there is no data or science
supporting that statement, that's how you get the trier of
fact, the jury, to make the wrong conclusion on your question.
So we have got to understand what our methods are, are they
valid, and NIST has got to help us with that. And what are
their limitations, and how can we articulate those in a way
that does not lead to an injustice?
Mr. Perlmutter. Thank you.
Mr. Gamette. I was going to say quality assurance is really
important in this discussion because we don't just press for
productivity; we press for quality. And that's what we want to
do in the laboratory every day. We don't want somebody going to
jail that shouldn't be there.
Now, important in that discussion, as it was just being
discussed, uniform language in reporting, uniform language in
testimony, what can the scientists say? And these standards are
being established at OSAC. And it's the practitioners that are
working with the researchers, with the statisticians. They all
work together to be able to get this right and get it right in
the courtroom.
Mr. Perlmutter. Thank you. Anything?
Dr. Kafadar. I'll just say that the average person still
has trouble understanding uncertainty, and so statisticians are
trying to figure out ways that we can communicate not just the
confidence in our results but the limits of the uncertainty.
Mr. Perlmutter. OK. Thank you. I yield back.
Chairwoman Johnson. That concludes all of our questioners.
And let me thank all the witnesses for being here and for your
excellent testimony.
The record will remain open for at least 2 weeks for
additional statements from Members or any additional material
you'd like to submit.
At this time I will say thank you to the witnesses. And you
are dismissed, and the meeting is adjourned.
[Whereupon, at 12:37 p.m., the Committee was adjourned.]
Appendix I
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Answers to Post-Hearing Questions
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Appendix II
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Additional Material for the Record
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