The April 2017 decision by Attorney General Sessions to not renew the National Commission on Forensic Science (NCFS) was announced as part of what he claimed would be efforts to “advance forensic science and help combat the rise in violent crime.” Whatever the Department of Justice has in mind for combatting a putative rise in violent crime, its decision will not “advance” forensics or ensure that such testimony derives from “science.”
A little background is necessary. In 2009, the National Academy of Sciences – since the presidency of Abraham Lincoln the preeminent body tasked with providing independent, objective advice to the nation on matters related to science and technology – issued its report STRENGTHENING FORENSIC SCIENCE – A PATH FORWARD. While emphasizing that forensic discipline testimony – DNA, fingerprints, firearms matching, etc. – was of critical importance in solving crimes and exonerating the wrongfully accused, the NAS made clear that much of the processes and conclusions lacked scientific foundation.
Whatever the Department of Justice has in mind for combatting a putative rise in violent crime, its decision will not “advance” forensics or ensure that such testimony derives from “science.”
How was this so? DNA was first studied in the laboratory and then used in investigating crimes while many forensic techniques started in the police station without rigorous science. And practitioners made unfounded, unscientific statements in court, claiming that disciplines had a “zero error rate” and could tell that a screwdriver or tire made a mark that no other tool or tire in the world could have left.
The NAS Report called for establishment of an independent National Institute for Forensic Sciences but Congressional gridlock prevented this. Responding to this inertia, the National Institute of Justice and the National Institute of Standards and Technology collaborated in 2013 to form the NCFS .
Comprised of scientists, statisticians, academics, judges, prosecutors, defense counsel, a victim advocate and members of state and local crime labs and law enforcement agencies, the Commission was to serve in two ways – as an advisory panel to the Attorney General and as a national forum for addressing forensic policy and practice. What was recommended and then adopted on the federal level would serve as a model for state and local jurisdictions.
The Commission worked. Between its inception and demise, the NCFS adopted 43 work products, “views” documents expressing a position to guide forensic science improvements and “recommendations” which urged the Department of Justice to adopt specific practices. These covered issues as diverse as a proposed national code of ethics for forensic science providers; a call for development of a forensic science educational curriculum; standards for forensic lab reports; disclosure protocols for forensic evidence in criminal prosecutions; accreditation requirements; proficiency testing for examiners; and concerns about removing potentially biasing information from forensic examinations.
It worked in other ways. Every meeting was open to the public; and every proposed document was subjected to public comment, making the resulting reports better informed and responsive to national, state and local needs and realities. Most importantly, it brought scientists – chemists, physicists, specialists in vision and medicine – to focus on ensuring the validity and reliability of forensic practice and in testimony.
Why, then, is the Attorney General’s action detrimental to forensics? Placing forensic policy back inside a law enforcement agency ends independence and trust, and takes the discussion out of the public eye. It removes hard science from the discussion, permitting forensic disciplines to lapse back into or persist in methodologies or reporting of results that are intuited or experience-based but presented as scientific conclusions.
That the Attorney General’s concern is not to “advance” forensic science is clear: that same day, the Department of Justice suspended work on setting uniform standards for forensic testimony and on a review of testimony in old cases that would have assessed when examiners went too far in opinions and conclusions.
Allowing the NCFS to sunset stands as part of a broader repudiation of science found across the Trump administration. For those who measure the value of forensic evidence not by the number of convictions obtained but by its accuracy and improvement, the Sessions decision turns the urging of the NAS to “strengthen” forensic science on its head.