Saturday, April 16, 2016

The Department of Justice's Plan for a Forensic Science Discipline Review

On March 21, the Department of Justice announced to the National Commission on Forensic Science that it will be
expanding its review of forensic testimony by the FBI Laboratory beyond hair matching to widely used techniques such as fingerprint examinations and bullet-tracing. Officials also said that if the initial review finds systemic problems in a forensic discipline, expert testimony could be reviewed from laboratories beyond the FBI that do analysis for DOJ. 1/
The head of the Department's Office of Legal Policy welcomed input from the Commission on the following topics:
  • How to prioritize disciplines
  • Scope of time period
  • Sampling particular types of cases
  • Consideration of inaccuracies
  • Levels of review
  • Legal and/or forensic reviewers
  • External review processes
  • Ensuring community feedback on methodology
  • Duty/process to inform parties 2/
On April 8, the Department quietly posted a Notice of Public Comment Period on the Presentation of the Forensic Science Discipline Review Framework in the Federal Register. The public comment period ends on May 9.

According to an earlier statement of Deputy Attorney General Sally Yates, the review is intended to "advance the practice of forensic science by ensuring DOJ forensic examiners have testified as appropriate in legal proceedings." Obviously, the criteria for identifying what is and is not "appropriate" will be critical. For example, which of the following examples of testimony about glass fragments (or paraphrases of the testimony) would be deemed inappropriate?
  • "In my opinion the refractory indices of the two glasses are consistent and they could have common origin." Varner v. State, 420 So.2d 841 (Ala. Ct. Crim. App. 1982). 
  • "Test comparisons of the glass removed from the bullet and that found in the pane on the back door, through which the unaccounted-for bullet had passed, revealed that all of their physical properties matched, with no measurable discrepancies. Based upon F.B.I. statistical information, it was determined that only 3.8 out of 100 samples could have the same physical properties, based upon the refractive index test alone, which was performed." Johnson v. State, 521 So.2d 1006 (Ala. Ct. Crim. App. 1986).
  • "Bradley was able to opine, to a reasonable degree of scientific certainty, that the glass standard and the third fragment had a 'good probability of common origin.'" People v. Smith, 968 N.E.2d 1271 (Ill. App. Ct. 2012).
  • "Blair Schultz, an Illinois State Police forensic chemist, compared a piece of standard laminated glass from defendant's windshield to a piece of glass from Pranaitis' clothing. He found them to have the same refractive index, which means that the two pieces of glass could have originated from the same source. The likelihood of this match was one in five, meaning that one out of every five pieces of laminated glass would have the same refractive index." People v. Digirolamo, 688 N.E.2d 116 (Ill. 1997).
  • "[O]ne of the glass fragments found in appellant's car was of common origin with glass from the victim's broken garage window. The prosecutor asked her if she were to break one hundred windows at random in Allen County, what would be the percentage of matching specimens she would expect. Over appellant's objection, she answered that if one hundred windows were broken, six of the windows would have the properties she mentioned." Hicks v. State, 544 N.E.2d 500, 504 (Ind. 1989).
Hopefully, the Department will learn from the FBI/DOJ Microscopic Hair Comparison Analysis Review 3/ and
(1) make public the detailed criteria is employs,
(2) use a system with measured reliability for applying these criteria, and
(3) make the transcripts or other materials under review readily available to the public.
  1. Spencer S. Hsu, Justice Department Frames Expanded Review of FBI Forensic Testimony, Wash. Post, Mar. 21, 2016. 
  2. Office of Legal Policy, U.S. Department of Justice, Presentation of the Forensic Science Discipline Framework to the National Commission on Forensic Science, Mar. 21, 2016
  3. See Ultracrepidarianism in Forensic Science: The Hair Evidence Debacle, Washington & Lee Law Review (online), Vol. 72, No. 2, pp. 227-254, September 2015
Related Posting
"Stress Tests" by the Department of Justice and the FBI's "Approved Scientific Standards for Testimony and Reports", Feb. 25, 2016

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