Two Misconceptions About the End of the National Commission on Forensic Science

Several days ago, the Justice Department (DOJ) announced the end of the National Commission on Forensic Science (NCFS). Initially established to advise the Department of Justice for a two-year period, the NCFS had had its charter extended once before, in April 2015. Attorney General Sessions declined to renew it a second time.

Several explanations for this decision could be offered: (1) the current administration is unreceptive to scientific knowledge and advice — alternate facts and alternate science are more appealing; (2) DOJ does not want outside advice on producing and presenting scientific evidence; (3) DOJ is tired of spending millions of dollars for advice from this particular group of lawyers, judges, administrators, forensic scientists, and others. (4) DOJ believes that NCFS has outlived its usefulness and there are better ways to obtain advice. And of course, some combination of these things might have been at work. I have no inside information, but I thought it might be helpful to collect some of what is publicly known if only to correct misconceptions about the Commission and its role vis-a-vis the Justice Department. I'll begin by noting two such misconceptions.

Misconception 1

NCFS Was Evaluating the Validity of Forensic Science Tests and Methods

One misconception is that the Commission was conducting independent evaluations of accepted methods in forensic science. Thus, the Associated Press reported that “National Association of Criminal Defense Lawyers ... President Barry Pollack said the commission was important because it allowed ‘unbiased expert evaluation of which techniques are scientifically valid and which are not.’” 1/ But not one of the 44 documents identified as “work products” on the NCFS website examines the validity of any technique.

The two documents that directly address “technical merit” are views and then recommendations 2/ about the need to study validity and reliability of techniques. No surprise there. More importantly, the documents underscore the importance of bringing what we might call "outsider" scientific expertise to bear in these efforts, and one of them contains pointed advice to other organizations. Specifically, a recommendation calls on NIST and its creation, the Organization of Scientific Area Committees for Forensic Science (OSAC), to reform the procedure OSAC uses to review and endorse standards for test methods. It states:

The Organization of Scientific Area Committees for Forensic Science (OSAC) leadership, the Forensic Science Standards Board (FSSB), should commit to placing consensus documentary standards on the OSAC Registry of Approved Standards for only those forensic science test methods and practices where technical merit has been established by NIST, or in the interim, established by an independent scientific body. An example of an interim independent scientific body could be an OSAC-created Technical Merit Resource Committee composed of measurement scientists and statisticians appointed by NIST and tasked with the evaluation of technical merit. 3/

This recommendation, by the way, has had limited impact. Yes, NIST has announced that it will do further research in a few areas such as DNA-mixture analysis. No, OSAC has not established a Resource Committee to check the technical merit of the documents that filter up from its subject-area committees and subcommittees.  4/

Rather than performing literature reviews (or promulgating scientific standards for forensic laboratories to follow), NCFS focused on broader issues of policy, needs, and legal reforms for generating or evaluating scientific evidence. This role for the Commission relates to a second misconception.

Misconception 2

NCFS Was a Worthless “Think Tank”

According to the Washington Post,

[T]he National District Attorneys Association, which represents prosecutors, applauded the end of the commission and called for it to be replaced by an Office of Forensic Science inside the Justice Department. Disagreements between crime lab practitioners and defense community representatives on the commission had reduced it to “a think tank,” yielding few accomplishments and wasted tax dollars, the association said. 5/

A press release from the NDAA does “applaud” the DOJ’s decision not to nonrenew the Commission, but not because the NCFS was a “think tank.” The group representing “2,500 elected and appointed District Attorneys across the United States, as well as 40,000 Assistant District Attorneys” complained that

The Commission lacked adequate representation from the state and local practitioner community, was dominated by the defense community, and failed to produce work products of significance for the forensic science community. Very few of the recommendations from the Commission were adopted and signed by the previous Attorney General during its existence. Those that were signed, such as universal accreditation, had already begun to develop organically within the forensic science community as accepted best practices, thus replicating ongoing work and wasting taxpayer dollars. 6/

I have not checked the percentage of recommendations “signed” by the Attorney General, but the Commission’s views documents never were intended to be signed by anyone, and the notion that only recommendations for specific action by the Attorney General benefit “the forensic science community” is shortsighted. Among the Commission’s documents of lasting value are the following:

• Recommendation on Transparency of Quality Management System
• Recommendation on Model Legislation for Medicolegal Death Investigation Systems
• Views Document on Recognizing the Autonomy and Neutrality of Forensic Pathologists
• Recommendations on Use of the Term “Reasonable Scientific Certainty”
• Recommendation on Pretrial Discovery
• Recommendations on Use of the Term “Reasonable Scientific Certainty”
• Views Document on Judicial Vouching
• Views Document on Ensuring that Forensic Analysis is Based Upon Task-Relevant Information
• Views Document on Facilitating Research on Laboratory Performance
• Views Document on Identifying and Evaluating Literature that Supports the Basic Principles of a Forensic Science Method or Forensic Science Discipline

It is instructive to compare the NDAA's dismissal of the "universal accreditation" recommendation  with the assessment of it by Associate Deputy Attorney General Andrew Goldsmith, who stated in his remarks at the final NCFS meeting that

[T]here is no single commission recommendation more important for the practice of forensic science than the recommendation regarding universal accreditation. I have been told the Department's decision to publicly announce the policy on accreditation and to mandate our prosecutors to rely on accredited labs when practicable has made a difference in laboratories and in moving to accreditation. These recommendations and the Department's review and implementation are a demonstration of the measurable impact of the work of this Commission ... .

Naturally, many of the ideas or actions that the Commission endorsed were not original. The idea of accreditation was prominent in the 2009 National Research Council (NRC) report on forensic science as well as NRC reports on DNA evidence in 1992 and 1996. NCFS was not a think tank, but a mixed bag of administrators, prosecutors, defenders, judges, law professors, police officials, laboratory scientists, medical examiners and coroners, research scientists, and other individuals. It could be criticized as wasteful — 13 meetings of 41 members (including the ex officio ones) plus an unlisted number of nonmembers appointed to subcommittees at a cost of millions of dollars for taxpayers (not to mention the opportunity costs to the volunteers). Consequently, it certainly is fair to ask how much additional benefit would have come from another two years of Commission life. 7/ But the Justice Department does not plan to halt all study of in-house forensic science reform. It has announced that some of it will continue via a newly created -- and surely not costless -- task force run by the incoming Deputy Attorney General. Given that plan, is the restructuring really an effort to save taxpayer money because of a perception that NCFS had reached the point of diminishing returns? Or is it a move to control the agenda and to modify the list of people who provide input? More on that later.

NOTES

1. Sadie Gurman, Sessions' Justice Dep't Will End Forensic Science Commission, AP News, Apr. 11, 2017, https://www.apnews.com/c076ef99c48948e3856902cfca9e7b14/Sessions'-Justice-Dep't-will-end-forensic-science-commission
2. NCFS often prepared two “work products” per topic for its recommendations — a preliminary “views” document followed by a final, more concrete  “recommendations” document. Consequently, the total number of its "work products" is a poor quantitative measure of its accomplishments.
3. Recommendation to the Attorney General: Technical Merit Evaluation of Forensic Science Methods and Practices, Dec. 9, 2016, at 3, https://www.justice.gov/ncfs/page/file/905541/download
4. A more cheerful description of the response from NIST and OSAC can be found in a letter from the six research scientists (not forensic scientists) on the Commission pleading for a renewal of the charter.
5. Spencer Hsu, Sessions Orders Justice Dept. To End Forensic Science Commission, Suspend Review Policy, Wash. Post, Apr. 10, 2017, https://www.washingtonpost.com/local/public-safety/sessions-orders-justice-dept-to-end-forensic-science-commission-suspend-review-policy/2017/04/10/2dada0ca-1c96-11e7-9887-1a5314b56a08_story.html?utm_term=.c24306818156
6. NDAA, Press Release, National District Attorneys Association Applauds Expiration of National Commission on Forensic Science, Apr. 10, 2017, http://www.ndaa.org/pdf/NDAA%20Statement%20on%20Expiration%20of%20National%20Commission%20on%20Forensic%20Science.pdf
7. Erin Murphy, Op-ed, Sessions Is Wrong to Take Science Out of Forensic Science, N.Y. Times, Apr. 11, 2017, https://www.nytimes.com/2017/04/11/opinion/sessions-is-wrong-to-take-science-out-of-forensic-science.html (asserting that NCFS "was even poised to issue a raft of best practices for the wild west of digital forensics, which has exploded without supervision over the years.")