If the cluster of forensic sciences involved in day-to-day crime solving, only nuclear DNA analysis has undergone truly rigorous scientific validation.
But much forensic evidence that juries are routinely led to believe is rock-solid lacks reliable scientific methodology or proven accuracy. Studies show possible error rates of 1 to 4 percent in fingerprint analysis and of 10 percent or more in paint, fiber and body fluid analysis alone. Recently, Miller-McCune.com investigated the unique problems plaguing the fire investigation industry and found that forensic investigations and the rush to declare a fire as an act of arson often sadly lags behind current science.
Now, a major report from the National Academy of Sciences judges even long-accepted evidence technologies like shoeprint, weapon toolmark and blood splatter analysis to be seriously flawed. Calling for sweeping reform, the report asks Congress to create a national institute for forensic science that would set rigorous research agendas, conduct peer-reviewed studies on unvalidated technologies, and create and enforce standards for crime labs and forensic science practitioners.
Innocence Project co-founder Peter Neufeld pronounced it a “major breakthrough.”
The urgent call for a new independent agency and infrastructure to fix the hopelessly fragmented system goes further than Phoenix attorney Larry Hammond of the Arizona Justice Project dared hope. While he is sure that the Department of Justice and National Institute of Justice don’t welcome the NAS “messing with them,” “… the truth is that Justice has failed in this mission.”
Fire investigation received scant specific attention in the report, but James Doyle, director of the Arson Screening Project, isn’t surprised. He’s sure the report’s tight focus was carefully orchestrated.
“I think they were particularly categorical on the issue of independence and taking this function outside the Department of Justice,” he said. “And I think that they realize that that portends a titanic battle, and they don’t want that battle confused.”
The focus is appropriate, Doyle continued, because a new agency can bring critical change while without it, “nothing will happen.”
The report calls for mandatory certification for all forensic scientists, lab technicians, medical examiners and pathologists, and mandatory accreditation for all crime labs. It also calls for crime labs to cut ties with, and no longer be beholden to, law enforcement agencies. Like many, it wants crime labs independent and autonomous.
Studies show that knowing the details of a crime or of a suspect's history, or just discussing a case with police or prosecutors beforehand, can lead to contextual bias in an analyst's work. One U.K. study revealed that fingerprint analysts' errors doubled when they had case information.
“It’s very hard for a scientist to do the kind of work that the academy expects people to do if they are an arm of the police department,” Hammond said.
That’s not universally accepted.
Renowned fire investigator John Lentini believes that because forensic scientists’ most critical function is helping police identify and catch criminals, “the idea that you divorce all of the crime laboratories from law enforcement is beyond stupid.”
He favors removing bias not by moving labs physically or jurisdictionally, but by implementing procedures that support objective work. Blind testing and sequential unmasking techniques, for instance (the kind of methods the NAS suggests researching), are designed to minimize the experimenter’s effect on outcome. A lead scientist can also initially withhold case information from technicians and scientists to keep their analysis pure.
“You don’t tell the crime-lab scientist doing the DNA, for example, what the suspect’s DNA profile looks like until they’ve extracted the DNA from the evidence profile for the victim,” said Lentini. This kind of methodology also helps eliminate unwitting or unconscious bias towards linking evidence to a suspect.
When the lead fire investigator arrived at 2006’s devastating Halloween fire at Reno, Nev.’s, Mizpah Hotel, he refused to hear what eyewitnesses had reported, Lentini offered as an example. “He wanted to just look at the physical evidence and try to figure out on his own by looking at (it) where the fire started.” Only later did he ask about witnesses’ reports. “And he was told, ‘The witnesses say it started right where you said it started.’ Now, that’s a whole lot more credible than going to where the witnesses say (the fire) started.”
The NAS report says of fire investigations that “…much more research is needed on the natural variability of burn patterns and damage characteristics and how they are affected by the presence of various accelerants.” And it goes on to suggest “experiments should be designed to put arson investigations on a more solid scientific footing.”
Hammond applauds its call to study fire debris with and without accelerants. “It opens up lots of questions about flawed fire testimony,” he said, “because you can ask in almost every one of these cases: Did anybody bother to do any testing? Or were we relying on people who don’t have degrees in this field (or) any specialized education or training — that whole thing of firemen become fire investigators become fire experts?”
Since Lentini isn’t convinced that the suggested new experiments ever will take place — a single test fire can cost $10,000 — his main hope is that any new government agency overseeing forensics “takes ownership of fire investigation and puts mandatory certification requirements on the practitioners, and that would be a huge step forward.”
And because fire investigation is somewhat out on its own, Lentini plans to make sure it doesn’t slip through the cracks.
“Oh, absolutely it could,” he said, “and I intend to be persistent.” He will press his cause to the Senate Judiciary Committee and plans to make Sen. Patrick Leahy (D-Vt.), the committee’s chair, aware “that there really is a problem out there and it needs to be addressed. If the national legislation addresses it, maybe the fire investigation community will, whether they like it or not, understand that they are forensic scientists.”
The NAS report does a lot, but what it doesn’t do is offer any judgment or recommendations about past convictions or pending cases. It doesn’t touch on the pressing need to find a way to get flawed cases back into court. “I think it’s very clear that they have really tried to avoid entangling themselves in that set of problems,” admitted James Doyle, who directs the The Center For Modern Forensic Practice at the John Jay College of Criminal Justice. “They know that they’re out there.”
Hammond is one of many disappointed by the omission. “It raises a huge issue, and it’s one that must be addressed,” he said forcefully. “In their defense, I would also observe that they must have known that would be a powder keg.”
For the sake of all who toil in forensic sciences, Lentini hopes that this report will at least make the Senate and the House understand that with chronic underfunding and understaffing, and the resulting unacceptable backlog of cases, the forensic disciplines really do need help.
“You get what you pay for,” he said. “And I think this report is an opportunity for the community to step up and say, ‘You get what you pay for.’”
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