Forensic Reform Legislation

[Ann Horsman]

From Sen Leahy's Office

Lengthy, what do you think?
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Preliminary Outline of Draft Forensic Reform Legislation – 5/5/10

Accreditation
 All laboratories that receive federal funds or are funded by an organization that receives
federal funding or performs services for the federal government must be accredited.
 The Forensic Science Commission (FSC) will set rigorous standards for accreditation,
including educational, proficiency testing, and competency standards for laboratory
practitioners, and will reassess these standards periodically. The process for setting and
re-assessing these standards must be open and transparent. The FSC will determine what
constitutes a laboratory for purposes of accreditation.
 Generally, the FSC will delegate the determining of standards for accreditation to a
qualified professional organization. In those instances where this role is delegated, the
FSC must perform regular and thorough oversight and reassess the decision to delegate
periodically. The designated professional organization must be open and transparent in
its process.
 The FSC, or the designated professional organization, will also determine testing,
maintenance, and auditing requirements for accredited labs. The FSC will determine a
fair fee structure for accreditation, in consultation with the professional organization as
appropriate.
 The FSC shall administer the accreditation requirement, or at its discretion oversee the
administering of accreditation by a qualified professional organization, shall determine an
appropriate enforcement scheme, and shall oversee enforcement. The FSC or the
designated professional organization shall develop and maintain a public list of those
laboratories accredited, those denied accreditation, and those whose accreditation has
been suspended, limited, or revoked.
Certification
 The Forensic Science Commission will determine which disciplines and which
practitioners require certification and will periodically reassess this determination.
 In all laboratories and other entities that receive federal funds, are funded by an
organization that receives federal funding, or perform services for the federal
government, and in all laboratories wishing to be accredited or re-accredited, all
individuals who perform forensic analysis in the disciplines requiring certification must
be certified.
 The Subcommittees in each discipline will determine the standards for certification, in
coordination with the FSC and those professional organizations to which the FSC
delegates responsibility for setting accreditation standards. The FSC and Subcommittees
shall reassess these certification standards periodically. The standards and the process for
determining them must be open and transparent. The substantive Subcommittees will
also determine the parameters of practitioners in their disciplines who must be certified.
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 Where a Subcommittee determines that one or more qualified professional certifying
organizations exist for a particular discipline, the Subcommittees will generally delegate
the determining of standards for certification to those organizations. Should a
Subcommittee decide to do so, it must perform regular and thorough oversight and
reassess the decision to delegate periodically. The designated professional organization
must be open and transparent in its process.
 The certification requirement will be implemented over time, giving current practitioners
several years, as determined by the Subcommittee in each discipline, to become certified
and giving laboratories several years to come into compliance. The FSC shall determine
a deadline by which the certification requirements in all covered disciplines must be
implemented.
 The FSC will determine a process for current practitioners to test in to certification, or
become certified in a gradual multi-part process, with waiver of some or all degree and
training requirements. The FSC will determine a process for new practitioners which
requires education and training as part of the certification process. The FSC and
Subcommittees will determine a fair fee structure for certification, in consultation with
qualified professional organizations as appropriate.
 The FSC shall administer certification, or at its discretion oversee the administering of
certification by qualified professional organizations in particular disciplines, shall
determine an appropriate enforcement scheme, and shall oversee enforcement.
 NIJ shall administer a grant program and provide technical assistance to assist
laboratories and other entities through the transition of continuing work while certifying
personnel and seeking accreditation and to help them pay fees for the accreditation and
certification process, as well as to assist qualified professional organizations in
administering the certification and accreditation processes. Congress shall authorize $
____ to NIJ for this grant program and technical assistance.
 The FSC shall consider whether and in what form a new federal rule of evidence or
procedure would be appropriate requiring that all those who testify in federal court as
forensic experts be certified. The FSC must consider how any such rule would be
implemented in a way that guarantees access by defense counsel to certified experts. The
FSC shall also consider whether any other changes to the federal rules would be
appropriate.
Research
 The Forensic Science Commission shall develop a comprehensive strategy for increasing
and improving peer-reviewed scientific research related to the forensic science
disciplines, including research addressing issues of accuracy, reliability, and validity in
the various disciplines.
 The Forensic Science Commission, in consultation with the substantive Subcommittees,
shall develop a set of priorities for research funding. This list of priorities will be
reviewed and re-assessed periodically by the Forensic Science Commission.
 Each of the Subcommittees established by the Forensic Science Commission shall
examine the research needs in its applicable forensic science discipline or disciplines, and
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shall conduct a comprehensive survey of existing research pertaining to each discipline.
As part of this survey, each Subcommittee shall identify key areas in which additional
research is needed.
 The Forensic Science Commission and the Director of the Commission shall coordinate
with the National Institute of Standards and Technology (NIST) to administer a program
to award grants for peer-reviewed research in areas consistent with both the research
priorities developed by the Forensic Science Commission and the research needs
identified by the Subcommittees.
 NIST shall solicit proposals and competitively award grants for such peer-reviewed
research, and shall, to the extent necessary and appropriate, consult and coordinate with
the National Science Foundation (NSF) to ensure the integrity of the process for
reviewing and funding these proposals.
 The Forensic Science Commission shall coordinate with the National Institute of Justice
(NIJ) to solicit proposals and competitively award grants for peer-reviewed research
related to the applicability of forensic science to civil and criminal legal systems, in
accordance with priorities developed by the Forensic Science Commission. This program
shall also encourage research aimed toward increasing the efficiency and effectiveness of
forensic testing procedures, including the use of new technologies, and increasing the
capacity of forensic testing that may be effectively processed by forensic labs. NIJ shall
consult and coordinate with NSF to ensure the integrity of the process for reviewing and
funding these proposals.
 NIST and NIJ shall each submit a report to the FSC annually detailing the application
process, grants awarded, and as appropriate status and results of previously awarded
grants. The FSC shall evaluate these reports and if appropriate redirect these grant
programs in accordance with the FSC’s priorities.
 Congress shall authorize $ ______ annually for the research grants administered by
NIST, and $_______ annually for the research grants administered by NIJ.
Standards/Best Practices
 The Forensic Science Commission shall, in consultation with the Subcommittees and
NIST, establish standard protocols, methods, practices, quality assurance standards, and
reporting terminology for each applicable forensic science discipline in order to ensure
the quality and integrity of the data generated.
 The Subcommittees shall develop standard protocols, methods, practices, quality
assurance standards, and reporting terminology for each applicable discipline, and
transmit these to the Forensic Science Commission for approval. The Subcommittees
shall periodically review these standards and recommend any necessary revisions.
 The Subcommittee in each discipline may alternatively at its discretion delegate to a
qualified professional organization the task of determining standards, protocols, methods,
practices, and reporting terminology. Should a Subcommittee decide to do so, it must
perform regular and thorough oversight and reassess the decision to delegate periodically.
The designated professional organization must be open and transparent in its process.
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 The FSC shall promulgate and disseminate these standards, and shall develop and
oversee a system for enforcing these standards.
 NIJ shall develop and disseminate a manual explaining the standards and best practices,
and their use and applicability in the context of the justice system.
Oversight and Coordination
 The President shall appoint members to a Forensic Science Commission (FSC) after
reviewing recommendations from the National Academy of Sciences and the American
Academy of Forensic Sciences. The members of the FSC shall include scientists from a
variety of disciplines including the forensic sciences, judges, representatives of the
federal and state and local prosecution and law enforcement communities, representatives
of the criminal defense community and post-conviction advocates, and other relevant
stakeholder communities. A majority of FSC members must have comprehensive
scientific backgrounds.
 The FSC shall operate out of the office of the Deputy Attorney General. The FSC shall
be staffed by an Office of Forensic Science (OFS), which shall include a Director
appointed by the Deputy Attorney General, a Deputy Director appointed by the Director
of the National Institute of Standards and Technology and detailed to the OFS, and
whatever other staff the FSC deems necessary. The FSC shall also consult regularly with
the Directors of the National Science Foundation and the National Institute of Justice and
senior officials from other relevant federal agencies.
 The OFS shall have the authority to implement recommendations of the FSC.
Implementation of scientific recommendations made by the FSC shall be coordinated by
the Deputy Director, in consultation with NIST. The FSC and OFS shall have
interagency authority.
 The FSC shall determine a list of major forensic disciplines for which there shall be
appointed substantive Subcommittees to examine research needs, promulgate standards
and best practices, develop certification standards, and other appropriate duties. The FSC
shall periodically revisit and update this list. In addition, the FSC shall consider what
role, if any, should be played in this process by existing Scientific Working Groups.
 The FSC shall consider every field in which courts hear forensic testimony and shall
come up with recommendations in any fields for which it determines no Subcommittee is
necessary. Should the FSC determine that a Subcommittee is not necessary because a
field has no scientific basis, the FSC must issue a public statement setting out and
explaining this decision. Should the FSC determine that a field can appropriately be
covered by a Subcommittee in a related field or is already sufficiently regulated by some
other existing entity, it must clearly and publicly set out and explain this conclusion.
 Subcommittees shall be made up of scientists from a variety of scientific disciplines
including the forensic sciences, all of whom have knowledge relevant to the individual
discipline, though they need not be specialists in that particular discipline.
 The members of each Subcommittee shall be appointed by the FSC’s Deputy Director in
consultation with the members of the FSC.
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 NIST shall provide support to the Subcommittees and shall perform periodic oversight to
ensure that the Subcommittees are performing their duties appropriately. Any problems
found by NIST shall be reported back to the FSC.
 In addition to the duties set out above with respect to accreditation, certification, research,
and standards, the FSC shall, in coordination and consultation with qualified professional
organizations, perform or oversee the following functions:
o Determine steps to encourage research collaboration between universities, state
and local forensic laboratories, and private laboratories and corporations with
appropriate disclosure and safeguards, in order to ensure cost-effective and highly
reliable research;
o Determine requirements for education and degree programs in the forensic fields,
and encourage the development of more and higher quality academic programs in
the forensic fields;
o Determine steps to encourage all jurisdiction to require the comprehensive use of
medical examiners and to encourage more well-qualified individuals to become
medical examiners;
o Examine ways that the forensic sciences can be marshaled toward emergency
preparedness, in coordination with the Department of Homeland Security;
o Coordinate as appropriate with the National Science Foundation, the Department
of Defense, the National Institute of Health, and any other relevant federal
agencies, particularly in regard to making efficient and appropriate use of existing
research expertise and funding;
o Determine steps to encourage the education and training of law students,
attorneys, and judges in forensic science and fundamental scientific principles,
including the competent use and evaluation of forensic science evidence;
o Determine effective ways to encourage inter-operability of databases and
technologies in all forensic disciplines; and
o Develop a Code of Ethics for the forensic sciences, and determine an appropriate
system for encouraging its use and enforcement.
 Congress shall authorize $_____ annually for the operation and staffing for the FSC and
Subcommittees, $_____ annually for the operation and staffing of OFS, and $_____
annually for NIST for oversight and other duties connected with the Subcommittees.

[Gerald Clough]

From Sen Leahy's Office

Lengthy, what do you think?
~~~~~~~~~~~~~~~~~~

Preliminary Outline of Draft Forensic Reform Legislation – 5/5/10

Accreditation
 All laboratories that receive federal funds or are funded by an organization that receives
federal funding or performs services for the federal government must be accredited.

That first paragraph is the big one. For example, in Texas, fingerprint analysis is exempted from the lab certification requirement, so if I am performing as an examiner in a small agency that does none of it's own analysis except latent print examination, I am not subject to the state law.

While I suspect few such small agencies receive federal assistance in support of their latent labs, a great many take advantage of other grant programs that are either directly federal or are state assignments of federal money. I would read the above as making them subject to the proposed federal law. Without debating any benefits, it's worth thinking about the wider effects. It is quite possible that "organization that receives federal funding" would be construed as any agency of a city or county that received federal funding for any purpose. That would pretty well catch them all.

Certainly, there is an appropriate certification available from a professional organization of the sort described, the IAI. And while the proposal states that an FSC subcommittee will determine which disciplines will require certification, I suspect those decisions will largely be made on the basis of which disciplines have certification programs in place and that if they are in place, that discipline will require certification. Viewing strictly the issue of an assured minimum demonstration of competency (more than just completion of training), there is little to object to. But from the view of practical provision of analysis, there may be significant problems.

Texas has about 34 official certified examiners, not counting federal agencies (5 CLPE's). New Mexico has five. Nebraska has three. New Jersey has one. The numbers may be slightly off, since the roster is dated October 2009. I know for a certainty that there are many Texas agencies doing their own latent print analysis but that have no one certified. There are also a great many jurisdictions where non-certified examiners perform to confirm "pen packets" and prior convictions during the punishment phases of trial, and in a great many cases, all actual investigative latent analysis is sent out, usually to the state lab.

All of this prompts some thoughts, mostly with regard to Texas but likely applicable, at least in part, to many states:

If all fingerprint comparison tasks were to be imposed on the one state lab, the work could not likely be accommodated with any very acceptable turn-around. The local agency labs now operating with sufficient numbers of CLPE's would not feel the impact. The dynamic load would fall on the state lab. While Texas is in better shape than some states, we are still working on significant budget cuts (strictly balanced budgets under the Texas Constitution).

The proposal includes funding of transition efforts. The amount is blank, which may accurately reflect the actual available funds. This could take two forms. One is assistance to the labs that take up the load. If that is not to be permanent, the other is expanded training to the end of certification. That is quite an expensive undertaking. While considerable training is now provided through the state academy (I think still supported by the Texas Police Association), additional advanced training would likely be required to generate a significant number of CLPE's. It is not strictly a training issue. Small agencies have greater difficulties taking staff off line for training and may well face a circular problem of newly certified personnel leaving to fill jobs, possibly newly funded, at larger agencies that are taking the purported interim load. Expensive as training is, it is very little compared to hiring more examiners. Many local agency examiners perform multiple duties. It does not automatically follow that the same funds that would train local staff would fully fund their replacements in the state lab or make it possible for staff with other duties, often detectives, to be out. There's a significant paradigm shift that is not economically equivalent.

While the proposal does not present definitions, it is difficult to imagine any legislation making a distinction between comparison of one record to another for criminal history purposes and investigative latent examination. The most common approach to such things is to make it depend on "testimony," which includes the conclusion being cited in such things as arrest affidavits. While this would presumably not prevent (and could not really prevent, anyway) "casual" examination to prioritize what evidence would be referred to a state lab, it doesn't much reduce the load on the lab. If I am correct in presuming comparison for criminal records purposes constitutes a "lab," the load on the state lab would functionally increase dramatically. Most of Texas is far enough from Austin that any court appearance takes a state examiner out of lab action for at least a full day, more if they don't fly. (And no one is flying much these days.) Of course, the proposal does vest in the FSC the determination of what scope of practice constitutes a "lab." But it seems difficult to make a meaningful distinction between record to record comparison and latent to record examination, unless one makes some assumptions about the nature of the two that are outside the nature of comparing one impression to another.


These things should perhaps not be seen as so much an argument against the legislative concept or a belief that it would create very significant problems. Rather, it might also be seen as offering some opportunities to create some new ways of addressing forensic needs. Just for a example off the top of my head. It might be the motivation needed for multiple local governments to participate in jointly funded labs conducting the more common of the analysis tasks that are primarily observational, along with more or less technical processing, which describes latent analysis. This does not rule out privatization, which allows agencies to use or not use and to use according to their level of activity, if they are not content to wait for the state lab. (Which many would have to, there being no likely money to pay private services.) It is quite possible, too, that states would establish their own certification programs. The FSC would be hard pressed to refuse to consider a state program in favor of a private organization.

This is, of course, a VERY early proposal. That's evidenced by the failure to reference any specific federal funds that would trigger the requirements. Congress conditions funds for specific purposes, such as highway-related requirements imposed as a condition to highway funding. (It's not always very specific, but there's always at least a theoretical connection between the conditions and the purpose of the funds.) I'm pretty sure this will never go through in any form that attaches it to all federal funds. It may well morph from a "you must do this if you're getting funds" to "if you want these specific funds, you will do this," which is the more usual way. One (probably better) approach is to follow past examples, such as emergency medical training and qualifications. In that field, the federal effort began with funding studies and developing model training and offering the states the double carrot of highway and other funds and a finished training product. But for exactly that reason, I'm not expecting rapid action here. Federal money is going to be scarce for a while. No carrot, no program. The most I really expect is the establish the Commission to do planning and program development. I do not see Congress sticking the states with another problem to answer for next time they're home.

And while it's probably entirely constitutional to tie accreditation to any and all federal funds, it involves practical operation of state judicial systems and will have to negotiate the sometimes tricky path between encouraging advances and imposing on how states qualify their experts, getting into the touchy area of state sovereignty. A lot to be done. It's a start. The intent is worthwhile.