PUBLISHER'S NOTE: This abstract, in itself, is a remarkable document that is worth reading alone for its account of the attack on reform of forensic science launched by the anti-science Trump regime with its decision not to renew the National Commission on Forensic Science. It is also valuable for highlighting the troublesome reality that some forensic methods have never been invalidated - with particular emphasis on the continued acceptance of bite-mark identification by the courts merely because they were accepted by the courts.
Harold Levy: Publisher; The Charles Smith Blog.
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PASSAGE OF THE DAY: "After terminating the NCFS, in April 2017, the DOJ proposed opening a new office for forensic science within the department and named a prosecutor to lead this effort. This new proposal is highly problematic. Specifically, it goes against the recommendations of the 2009 PCAST report, which strongly suggested that the DOJ not be involved in evaluating the use of forensic science. Although the NCFS was not entirely independent, it did include some independent stakeholders: scientists outside the realm of forensic science. Putting a prosecutor in charge of forensic science perpetuates an irreconcilable conflict-of-interest and reinforces the dominance of the prosecutorial perspective. Prosecution entities, by the nature of our adversarial legal system, have little incentive to embrace scientific advances that could risk undermining past convictions and current prosecutions. Conversely, defense entities have incentives to constantly question and raise doubts regarding scientific results that do not support their desired outcome. The role of prosecutors and defense attorneys is to win cases through competing arguments (i.e., the adversarial system). Neither “side” can or should be expected to evaluate scientific integrity on its own merits. The need for an independent and dedicated champion of forensic science has never been clearer."
SECOND PASSAGE OF THE DAY: "Remarkably, the DOJ took this step despite recent reports from the National Academy of Science (NAS) and the President’s Council of Advisors on Science and Technology (PCAST) that highlighted many problems, including the fact that some forensic methods have never been validated. Some of these methods are clearly invalid. The most egregious case is bite mark identification, which has been discredited by both scientific studies and false convictions based on the method. However, bite marks continue to be accepted in United States courts as a matter of precedent: that is, not because they are valid but because they were accepted in the past. As science—and forensic science more specifically—continues to advance, it becomes increasingly absurd to ask or expect lawyers, judges, and juries to take sole responsibility for critically evaluating the quality and validity of scientific evidence and testimony.
ABSTRACT: "A call for more science in forensic science," by Suzanne Bell, Sunita Sah, Thomas D. Albright, S. James Gates Jr., M. Bonner Denton and Arturo Casadevall, published by the PNAS (Proceedings of the National Academy of Sciences of the United States of America) on April 12, 2018. (Proceedings of the National Academy of Sciences of the United States of America is the official scientific journal of the National Academy of Sciences, published since 1915.)
GIST: Forensic
science is critical to the administration of justice. The discipline of
forensic science is remarkably complex and includes methodologies
ranging from DNA analysis to chemical composition to pattern
recognition. Many forensic practices developed under the auspices of law
enforcement and were vetted primarily by the legal system rather than
being subjected to scientific scrutiny and empirical testing. Beginning
in the 1990s, exonerations based on DNA-related methods revealed
problems with some forensic disciplines, leading to calls for major
reforms. This process generated a National Academy of Science report in
2009 that was highly critical of many forensic practices and eventually
led to the establishment of the National Commission for Forensic Science
(NCFS) in 2013. The NCFS was a deliberative body that catalyzed
communication between nonforensic scientists, forensic scientists, and
other stakeholders in the legal community. In 2017, despite continuing
problems with forensic science, the Department of Justice terminated the
NCFS. Just when forensic science needs the most support, it is getting
the least. We urge the larger scientific community to come to the aid of
our forensic colleagues by advocating for urgently needed research,
testing, and financial support. Forensic
science is at a crossroads. It is torn between the practices of
science, which require empirical demonstration of the validity and
accuracy of methods, and the practices of law, which accept methods
based on historical precedent even if they have never been subjected to
meaningful empirical validation. The field is in dire need of deep and
meaningful attention from the broader scientific community. Without such
guidance, forensic science and law enforcement risk withholding justice
from both defendants and crime victims. The scientific community must
step forward to promote, defend, and advocate for science in forensic
science. The issue is of particular importance in light
of the decision by the Department of Justice (DOJ) in April 2017 to
terminate the National Commission on Forensic Science (NCFS), a group
(on which we served) that was charged with advising the federal
government on improving the parlous state of the forensic science.
Remarkably, the DOJ took this step despite recent reports from the
National Academy of Science (NAS) and the President’s Council of
Advisors on Science and Technology (PCAST) that highlighted many
problems, including the fact that some forensic methods have never been
validated. Some of these methods are clearly invalid. The most egregious
case is bite mark identification, which has been discredited by both
scientific studies and false convictions based on the method. However,
bite marks continue to be accepted in United States courts as a matter
of precedent: that is, not because they are valid but because they were
accepted in the past. As science—and forensic science more
specifically—continues to advance, it becomes increasingly absurd to ask
or expect lawyers, judges, and juries to take sole responsibility for
critically evaluating the quality and validity of scientific evidence
and testimony. The structure of the field of forensic
science inhibits vital reforms. Almost all publicly funded laboratories,
whether federal, state, or local, are associated with law enforcement.
At the very least, this creates an inherent conflict-of-interest and
leads to legitimate concerns of objectivity and bias. The linkage of
forensic laboratories with prosecutorial entities dates back as far as
13th century China, was pervasive in Europe in the mid-late 19th
century, and spread from there to the United States. Some
forensic methods have been rooted in science. Medicolegal death
investigation emerged from medical science, because death investigation
was connected to the protection of public health. Techniques of
analytical chemistry were applied to the certain types of evidence, such
as seized drug analysis, toxicological analysis, and aspects of
instrumental analysis applied to trace evidence. More recently,
molecular biology gave rise to DNA typing to forensic applications. The
evolution of other forensic disciplines, particularly those related to
pattern evidence, followed a different course, having been developed
primarily within law enforcement environments or at the behest of law
enforcement. Disciplines, such as fingerprints, firearms, and tool
marks, blood-stain pattern analysis, tread-impression analysis, and bite
mark analysis matured largely outside of the traditional scientific
community during a time when admissibility standards for scientific
evidence had yet to be formulated. Thus, admissibility of such evidence
rightly or wrongly created judicial precedent in decisions that often
did not—or could not—involve the level of research that would today be
needed to establish scientific validity. The adaptation
of DNA typing methods to forensic casework, a pivotal event in forensic
science, catalyzed a reassessment of the scientific validity of other
methods used in forensics. In the 1980s, Alec Jeffreys of the University
of Leicester discovered that segments of repetitive DNA were
tremendously variable among individuals and coined the term “DNA
fingerprinting” (15).
The rapid embrace of DNA typing, beginning in the late 1980s and
continuing through the turn of the century, had far-reaching
implications in the judicial system. The probabilistic nature of DNA
evidence and its acceptance by the courts also played a role in shaping
modern views on scientific validity. Before DNA typing, analysis of
blood evidence relied on ABO blood group and secretor status, which
could afford population frequencies on the order of n-in-100.
DNA typing allowed a person to be linked to a sample with frequencies of
less than one across the population of the world (i.e., less than one
in eight billion). The use of rigorously estimated probabilities as a
tool to weigh the relative importance of the data marked a critical
turning point in forensic science. During the same time,
fingerprint analysis was also used to identify individuals as the
source of impressions, but without either population data (on the
similarity among fingerprints) or empirical studies (on the performance
of examiners) providing estimates of the probability for false-positive
matches. In retrospect, it is clear that DNA evidence and its success
changed our views and expectations of forensic science. In
the 1990s, three critical Supreme Court rulings in civil cases provided
guidance regarding the admissibility of evidence in federal cases. In Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 US 579 (1993), the judge was assigned a gatekeeping role to ensure
that expert scientific testimony was found to be reliable before it
could be admitted as evidence. In General Electric Co. v. Joiner,
522 US 136 (1997), the Court made clear that scientific testimony must
be relevant to the case at hand to be admissible. Finally, the decision
in Kumho Tire Co. v. Carmichael, 526 US 137 (1999) broadened
the scope of expert testimony to include all types of technical
evidence, while holding fast to the reliability and relevancy
requirements. These three cases, often referred to as the Daubert
trilogy, generated a two-pronged test for the admissibility of evidence
ruling, namely that scientific evidence used in court must be both
reliable and relevant. The Daubert trilogy
represents a critical milestone in the intersection of science and the
law by demanding that admissibility decisions rely on contemporaneous
scientific standards. Although the admissibility of DNA evidence
slightly preceded the Daubert trilogy, it provides a good model
for how modern scientific advances should be integrated into the
justice system: namely, scientific validation should precede
admissibility. Additionally, DNA typing has had a
significant impact on forensic science through exonerations of false
convictions. As noted in a recent summary report (16),
for convictions in the 1974–2016 period, DNA evidence has overturned
more than 100 false convictions. Causes of false convictions are
mistaken witness identification, perjury or false accusations, false
confessions, official misconduct, inadequate legal defense, and false or
misleading forensic evidence. In those cases where forensic science was
cited as a primary cause of the false conviction, the most common
methods used were forensic biology (serology), hair examinations, and
bite marks. This does not mean that all previously
admitted types of evidence are necessarily invalid, but it does require,
at the very least, that validity be now established by appropriate
scientific standards before they can continue to be used. This
requirement poses a dilemma to prosecutors—and to some extent to law
enforcement—who face an inherent risk and disincentive in arguing for
scientific validation studies that could call into question past
convictions based on methods that no longer pass muster. Even when
scientific studies clearly debunk a methodology, some prosecutors appeal
to past legal precedent to persuade courts to admit evidence, as seen
in the case of bite mark evidence. The scientific community must step up
to counter this pressure. The NAS has been at the forefront of these efforts since the early 2000s (17).
In November 2005, the Science, State, Justice, Commerce, and Related
Agencies Appropriations Act of 2006 called upon the National Research
Council (NRC) to conduct a study of forensic science. The exhaustive
study resulted in the 2009 publication of Strengthening Forensic Science in the United States: A Path Forward (18),
which concluded that “with the exception of nuclear DNA analysis…no
forensic method has been rigorously shown to have the capacity to
consistently, and with a high degree of certainty, demonstrate a
connection between evidence and a specific individual or source.” The
2009 report (18)
recommended the creation of a “new, strong, and independent entity that
could take on the tasks that would be assigned to it in a manner that
is as objective and free of bias as possible—one with no ties to the
past and with the authority and resources to implement a fresh agenda
designed to address the problems found by the committee and discussed in
this report.” Notably, the NRC report was unambiguous that this entity
be outside of the jurisdiction or control of the DOJ. Rather
than establishing such an independent entity, the government created
the NCFS, which was established by the DOJ in partnership with the
National Institute of Standards and Technology (NIST). The NCFS
functioned from 2013 to 2017, during which time it held 13 meetings. It
was a diverse body composed of representatives of several stakeholder
communities, including forensic scientists, law enforcement, judges,
attorneys, and independent scientists not associated with forensic
science. The 49 commissioners served over two terms, heard presentations
from 140 invited presenters, and approved 43 documents and summary
reports. Given its heterogeneous composition and expertise, the NCFS
took time to function efficiently. Only one document was approved before
its fifth meeting, compared with eight at the September 2016 meeting
alone. This timeline shows evidence of the learning curve commissioners
were on as they began a deliberative process to achieve consensus on
reports and summary documents. As examples, the NCFS
recommended the creation of postdoctoral training programs in forensic
science to encourage the emergence of an inquisitive and investigative
scientific culture, which the National Institute of Justice (part of the
DOJ) quickly embraced. One practical recommendation was the abandonment
of language the Commission found to be meaningless and misleading, such
as claims by experts that their conclusions were correct to a
“reasonable scientific certainty.” Of significance was the commission’s
recommendation that forensic techniques be subjected to independent
validation before being introduced into common use and that the NIST
should be responsible for such oversight. Beyond its recommendations,
the NCFS provided a first-ever national-level venue for communication
and understanding among the many disciplines represented. During NCFS
discussions, it became clear that the scientific and legal communities
often had different interpretations of what constituted “error” in
forensic analysis, with the former recognizing error as an intrinsic
aspect of any measurement process and the latter often viewing error as
synonymous with a mistake: that is, the inappropriate application of a
procedure or technology. Although NCFS recommendations do not have the
force of law, the fact that they emerged from a commission composed of
such different stakeholders gave them moral force. Unfortunately, all of
the hard work needed to forge such a heterogeneous group into a body
that had learned to reach consensus was lost when the DOJ declined to
renew the NCFS in early 2017. In late 2016, a PCAST report (19, 20)
highlighted why bodies like the NCFS are needed. PCAST based its
conclusions on a review of more than 2,000 papers in the forensic
science literature, as well as interviews with forensic scientists and
stakeholders in the legal community. The report identified two gaps
requiring attention: (i) a need for clarity about the
scientific standards required to establish the validity and reliability
of forensic methods, as well as to measure their accuracy; and (ii)
a need to scientifically establish the validity and reliability of
particular forensic methods that had never been properly validated.
Providing an independent confirmation of many of the findings of the
prior 2009 NRC report, the PCAST report concluded that empirical testing
is not merely one among various alternative ways to establish
scientific validity; rather, it is the only scientific basis for doing
so. Furthermore, the PCAST report established that, in the 7 y since the
2009 NRC report, little progress had been made to address the
criticisms raised in that report. The sole exception was
latent-fingerprint analysis, which had been subjected to validity
testing. A key issue is how to extend this one example to other forensic
methods. After terminating the NCFS, in April 2017, the
DOJ proposed opening a new office for forensic science within the
department and named a prosecutor to lead this effort. This new proposal
is highly problematic. Specifically, it goes against the
recommendations of the 2009 PCAST report, which strongly suggested that
the DOJ not be involved in evaluating the use of forensic science.
Although the NCFS was not entirely independent, it did include some
independent stakeholders: scientists outside the realm of forensic
science. Putting a prosecutor in charge of forensic science perpetuates
an irreconcilable conflict-of-interest and reinforces the dominance of
the prosecutorial perspective. Prosecution entities, by the nature of
our adversarial legal system, have little incentive to embrace
scientific advances that could risk undermining past convictions and
current prosecutions. Conversely, defense entities have incentives to
constantly question and raise doubts regarding scientific results that
do not support their desired outcome. The role of prosecutors and
defense attorneys is to win cases through competing arguments (i.e., the
adversarial system). Neither “side” can or should be expected to
evaluate scientific integrity on its own merits. The need for an
independent and dedicated champion of forensic science has never been
clearer. The limitations of some forensic science
methods have been exposed, often by forensic scientists themselves. The
larger scientific community must now come to the aid of our forensic
colleagues in advocating both for: (i) the research and financial support that is so clearly needed to advance the field and (ii)
the requirement for empirical testing that is so clearly needed to
advance the cause of justice. Vocal and continual advocacy for
scientific independence is needed, along with policy recommendations and
a concerted effort to ensure that this issue stays in the public
conscience. Independent review efforts should be launched and supported.
Forensic scientists have long complained that their work is not always
valued by their scientific colleagues because of its applied nature; it
is time for the scientific community to move beyond that conceit.
Research and academic scientists should become educated about forensic
science and take active steps to welcome the discipline into the larger
scientific community. A broad effort can help illuminate the causes of
failures, help predict when failure is likely to occur, and aid in the
development of strategies to mitigate or circumvent those conditions.
Because it represents the wide gamut of scientific disciplines that are
essential to forensic science, the NAS remains in a prime position to
continue the dialogue between the academic and forensic science
communities. If we are unwilling to confront the issue of accuracy in
our justice system, what cause is worthy?"
The entire abstract (with footnotes) can be read at:
http://www.pnas.org/content/early/2018/04/11/1712161115Read the full article at:
http://www.pnas.org/content/pnas/early/2018/04/11/1712161115.full.pdf?t=1&cn=ZmxleGlibGVfcmVjcw%3D%3D&refsrc=email&iid=0cf23a70b7394008aea12271b01b4b54&fl=4&uid=30805956&nid=244+272699400
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/c
