“You guys are the scientists and legal experts. How can you let this keep happening?”
That was the question asked by Keith Harward, who spent more than 32 years in prison for a rape he did not commit, due to inaccurate bite-mark testimony.
His audience, the 40 members of the National Commission on Forensic Science, had no reply. That morning earlier this month, Attorney General Jeff Sessions had announced his decision not to renew the group’s charter—effectively eliminating the group and leaving prosecutors, police, defense attorneys, judges, and juries without unified national guidance on how to improve the use of scientific information in criminal justice.
Improving forensic science should be an oasis of nonpartisan agreement in today’s hyperpolitical world.
Ensuring the accuracy of the criminal justice system is not a prosecution, police or defense issue. It’s a justice issue, and scientific techniques can be very helpful in supporting all parts of the criminal justice system in its most important goal: finding the truth.
Despite the best efforts of our crime lab professionals, however, forensic errors are widespread, with substantial consequences.
A Boston crime lab recently reversed 23,000 drug convictions because a single analyst simply made up results without conducting drug tests. [Ed. Note: Prosecutors in Massachussetts, as a result, this week agreed to drop the cases.] Houston, Portland, and Las Vegas are wrestling with hundreds of flawed convictions based on unreliable field drug tests. Crime labs in Detroit, Austin, San Francisco, Washington DC, and elsewhere have been shut down or restructured due to repeated violations of scientific best practices.
Experts from the FBI crime lab, long the gold standard in the field, gave inaccurate testimony on the reliability of microscopic hair comparisons in thousands of cases starting in the 1980s. Other errors abound, like the junk science testimony on bite marks that wrongfully convicted Keith Harward, or the arson testimony that wrongfully convicted Han Tak Lee.
In fact, forensic errors played a role in 480 (24%) of the 2,013 confirmed exonerations in the US to date.
The National Commission on Forensic Science (NCFS) was formed by the Department of Justice in 2013 to advise the Attorney General on how to improve forensic science. Its members include federal, state and local forensic science service providers, research scientists and academics, law enforcement officials, prosecutors, defense attorneys, judges, and other stakeholders from across the country.
They were tasked with developing recommendations to “enhance the practice and improve the reliability of forensic science,” and its members were engaged across a very broad range of topics designed to improve the application of science in our courts.
The complex challenges involved require precisely the sort of interdisciplinary assessment provided by the NCFS, and the Commission made remarkable progress in its short lifespan. Lab accreditation standards have improved and expanded, and the NCFS promoted a national code of professional responsibility for forensic scientists, supported and described systems of continuous quality management for labs, and promoted improved analytical structures and improved competency and proficiency testing.
These initiatives will improve the quality of our crime labs so that they operate at the highest possible levels of scientific excellence. But much more remains to be done.
That includes establishing standards for accurate testimony about error rates and levels of certainty in fingerprints, ballistics, handwriting, and other comparative disciplines; setting criteria for assessments of digital forensics, cognitive biases; and improved standards for expert trial testimony.
These were among the important topics still on the NCFS agenda.
Addressing these issues has been challenging, and involved healthy amounts of conflict and debate. The members of the NCFS have not always been in agreement, but they have learned to respect each other as honest brokers dedicated to improving the criminal justice system. That respect provides a foundation for progress and improvement.
New presidential administrations are not bound to the decisions of their predecessors, but ending the NCFS, and the troubling decision to abandon DOJ’s Forensic Science Discipline Reviews, can only slow the implementation of improvements. No other group has the skills and the mutual trust necessary to tackle combined issues of law and science openly and honestly.
Any new approach will take months or years to gel, if it ever does. In the meantime, errors will continue at their current unacceptable rate.
Allowing the NCFS to expire does nothing to help Keith Harward, convicted due to debunked expert testimony in a field that has been summarily disproved by reputable scientists. It does nothing to help victims of crime like the woman whose rape was pinned on Harward. And it does nothing to help the next rape victim, the next wrongfully accused man, or the next lawyers, judges, or juries presented unwittingly with inaccurate or poorly conducted forensic comparisons.
The National Commission on Forensic Science has been an instrument of truth and excellence bringing together the best minds of our country for the greater good.
It should be renewed and allowed to continue its work.
Without the NCFS, or something like it to move forensic science forward, errors will continue to happen. We owe it to Keith Harward and the thousands of people like him to do better.
John F. Hollway is Associate Dean, University of Pennsylvania Law School and Executive Director of the Quattrone Center for the Fair Administration of Justice. He also served as a member of the subcommittees on Interim Solutions and on Human Factors at the National Commission on Forensic Science. He welcomes readers’ comments.