ISPLA Update-Improving Forensic Science
- Improving Forensic Science in the Criminal Justice System
The Senate Judiciary Committee on July 18, 2012 held a Full Committee
hearing. ISPLA has reported on HR 6106, the Forensic Science & Standards
Act of 2012. Senator Jay Rockefeller (D-WV) introduced an identical bill.
Investigative professionals in the criminal defense area as well as our
members who are experts in the forensic sciences might wish to review the
testimony of the following witnesses.
Ranking member Senator Chuck Grassley (R-IA) in a prepared statement renewed
his request for basic information from the FBI about the scientific
integrity of its crime lab and from the Department of Justice about its
review of past prosecutions, and he raised questions about how to improve
forensic science in the criminal justice system during a hearing this
morning of the Senate Judiciary Committee.
Grassley's most recent request for information from the Department of
Justice was made Monday in a letter to Attorney General Eric Holder. The
Department of Justice and FBI last week announced a broad review of criminal
cases where defendants may have been wrongly convicted because of flawed
forensic work in the FBI crime lab following investigative reporting by The
Washington Post that indicated that "sloppy" and "unreliable" work may have
led to the incarceration of hundreds of innocent people, and that a 2004
review by the Department of Justice didn't go far enough in identifying
potential cases of wrongful convictions.
Grassley also had made a request for information from FBI Director Robert
Mueller in May, with Senator Patrick Leahy, but the FBI has not responded.
"I'm glad the Department has decided to conduct a more expansive review, but
I also want to make sure the wider review avoids mistakes made by a previous
task force," Grassley said. "We still don't have a full accounting of the
findings of the previous task force, so my oversight remains focused on
accountability and making sure the forensic science system in this country
is as good as it can be."
In 1997, Grassley took on the cause of Dr. Frederic Whitehurst, an FBI crime
lab scientist who risked his career to come forward with allegations about
wrongdoing in the FBI crime lab, which called into question the scientific
integrity of the lab and the thousands of prosecutions that relied on
evidence it processed. For his effort, Whitehurst was retaliated against by
the FBI. Ultimately, however, Whitehurst's disclosures resulted in an
independent investigation that recommended lab changes, including
accreditation by an outside body.
"Thanks to the actions of Dr. Whitehurst, cases where faulty procedures,
flawed analysis, and improper testimony were given were reviewed," Grassley
WITNESS LIST: Below are the identities of the witnesses and links to their
On behalf of the International Association of Chiefs of Police
Senior Police Bureau Commander, Forensic Services Bureau
Miami-Dade Police Department, Miami, FL
Chief, Bureau of Forensic Science
California Department of Justice, Sacramento, CA
The Innocence Project, New York, NY
National District Attorneys Association, Alexandria, VA
Below is a full copy of a prepared statement from the Ranking member of the
committee, Senator Charles Grassley (R-IA) seeking accountability and an
improved forensic science program. Investigative and Security professional
associations are welcome to disseminate this message to their listservs and
ISPLA Director of Government Affairs
Prepared Statement of U.S. Senator Chuck Grassley
Ranking Member of the Senate Committee on the Judiciary
Hearing on "Improving Forensic Science in the Criminal Justice System"
Wednesday, July 18, 2012
Mr. Chairman, thank you for holding this hearing. I join you in wanting to
make sure that the forensic science system in this country is as good as it
can be. This is an important subject for the Judiciary Committee to
address, since forensic science is the application of science in the
courtroom, designed to identify the guilty and exclude the innocent. It's
not about academic or pure scientific research. And I'm pleased that we are
able to have a consensus panel of witnesses today.
Years ago, I supported a whistleblower who exposed serious problems at the
FBI Crime Lab, Dr. Frederic Whitehurst. And he's here in the room with us
Dr. Whitehurst risked his career to come forward with allegations about
wrongdoing in the FBI crime lab. In the words of the Federal District Court
for the District of Columbia, "Dr. Whitehurst has made a number of very
serious allegations that call into question the scientific integrity of the
FBI crime lab and the thousands of prosecutions that rely on evidence it has
processed." For his effort, he was retaliated against by the FBI and
spent years litigating with the FBI via the Freedom of Information Act to
obtain documents outlining the retaliation he faced by the FBI.
The disclosures Dr. Whitehurst made resulted in a DOJ Inspector-General
investigation that recommended 40 changes to improve procedures at the Lab,
including accreditation by an outside body. Thanks to the actions of Dr.
Whitehurst, cases where faulty procedures, flawed analysis, and improper
testimony were given were reviewed. Ultimately, Dr. Whitehurst's case
resulted in the Justice Department creating a regulatory process for
whistleblowers to adjudicate their claims. That process is unfortunately
broken and needs our legislative attention.
Additionally, more work needs to be done on the FBI crime lab and DoJ's
review of past cases. Recently, The Washington Post found that a 2004 DoJ
review of flawed hair and fiber analysis at the FBI Lab didn't go far enough
in identifying potential cases of wrongful convictions. And even in cases
that were identified, DoJ did not ensure that defense counsels were
informed. Mr. Chairman, you and I jointly wrote a letter to the FBI on this
matter. But almost 60 days later we have not received a response.
The FBI publicly announced last week that it was expanding its review, but
our request for basic information still hasn't been answered. On Monday, I
sent another letter with further questions. I expect answers to this
serious matter to ensure that the problems Dr. Whitehurst uncovered are not
continuing to this day.
So, I appreciate the importance of this hearing and the goal of improving
the use of forensic science in the criminal justice system. Wrongful
convictions are very rare, but they do happen. And, flawed use of forensic
science accounts for some of them.
I want to be clear that I don't think forensic science as a whole is the
problem. Forensic science has come a long way over the years. Most
important was the development of DNA testing technology. Nowadays, we don't
even need outdated forensic disciplines like hair comparison or blood
matching, which account for most of the wrongful convictions due to flawed
use of forensic science. Furthermore, those cases are usually the result of
bad practice of forensic science, not bad science itself.
Unfortunately, there are those who claim that certain forensic sciences as a
whole are invalid. These critics usually point to one famous case or
another to indict an entire discipline. For example, after more than 100
years of critical contributions to public safety, fingerprints are now
called into question because of the Brandon Mayfield incident. The
Washington Post yesterday said that there is some "uncertainty" with
fingerprints as a whole. This latest attack is similar to the attacks which
questioned whether DNA analysis was valid when prosecutors first tried to
introduce it in the early 1990s.
However, there is plenty of proof on the record that fingerprints are
reliable. One study completed after the Mayfield incident found a 99.9
percent reliability by FBI examiners. And this study was published in the
peer-reviewed Proceedings of the National Academies of Sciences. That's
why, as the DoJ Inspector General has pointed out, every federal court of
appeals that has addressed the issue has held that fingerprints are
admissible as evidence.
The criminal justice system is adversarial for a reason - to help uncover
the truth through questioning of evidence. It is a robust system with
Constitutional and other legal protections for defendants.
Unlike the adversarial system, some have recommended that we turn over
forensic study to unelected and, often, unaccountable bureaucrats.
From my work in the Senate with federal government whistleblowers, I can
tell you that I would trust the adversarial court system before I trusted
federal bureaucrats. What happens in a courtroom is public and claims are
subject to cross-examination. Decisions about forensic science shouldn't be
made behind closed doors by unelected bureaucrats.
We've all seen how a supposedly neutral scientific regulatory agency, the
FDA, handles honest disagreements - by spying on the dissenters. I would
hate for decisions on forensic science to fall prey to the bureaucracy as
There are three main issues, therefore, that I want to examine in this
First, how do we improve forensic science without throwing out the baby with
the bathwater? I don't want our efforts to improve the system to call into
question the hard work that has already been done - and is being done every
day - in labs across the country.
Second, what kind of improvement will be most efficient and effective?
Should the federal government - which has some of its own problems - be
regulating the states? Or should it get its own house in order first?
Third, how will any changes relate to existing policies and procedures?
There is already a lot work going on to improve forensics. The
DoJ-supported Scientific Working Groups for each discipline are crafting new
standards for their members. DoJ and other entities are funding more
research. Labs are being accredited to strict national and international
standards. And prosecutors, defense counsel, and judges are learning more
about how to evaluate forensic evidence. Congress should be careful not to
pre-empt that work.
I look forward to hearing from our witnesses today about these matters and I
again thank Dr. Whitehurst for being here today. Thank you.
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