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Improving the Practice and Use of Forensic Science - A Policy Review, The Justice Project, 2008

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THE JUSTICE PROJECT

Improving the Practice and
Use of Forensic Science
A Policy Review
The erroneous testimony of a forensic
analyst helped convict Brandon Moon for
a rape he did not commit. The botched
handling of post-conviction DNA testing
kept Moon in prison for seventeen years
before he was ultimately exonerated.
Improved oversight and regulation .
of forensic science can prevent .
such an injustice.

Introduction............................................... 1
Problems & Solutions............................ 2
The Legal Landscape............................ 8
Profiles of Injustice.............................. 10
Snapshots of Success......................... 14
Questions & Answers......................... 15
Voices of Support................................ 16
A Model Policy...................................... 17
Literature. ................................................ 24

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“If forensic evidence is not objectively
tested, analyzed, and interpreted
by adequately trained scientists, the
search for truth will potentially be
compromised, if not defeated.”
— B etty L ayne D es P ortes , D efense L awyer
C hairwoman of J urisprudence S ection
A merican A cademy of F orensic S ciences

and
of the

THE JUSTICE PROJECT

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INTROdUCTION

F

orensic science—the use of science to answer legal matched fingerprints tied to the 2004 Madrid train
questions—includes well-known techniques such
bombings. The FBI crime laboratory declared with
as fingerprint analysis, DNA analysis, and ballistics
one-hundred percent certainty that Mayfield’s finger(the analysis of firearms). In recent years, the use of
prints matched fingerprints tied to the crime, but they
forensic science in criminal investigations and trials
were mistaken. After spending time in jail, Mayfield
has steadily gained in popularity as an effective and
was found to be innocent and was released. The FBI
powerful tool for seeking truth and justice. The use
was mistaken in its analysis. The mistakes made by
of forensic science can effectively help convict those
experienced analysts show that tools such as fingerprint
guilty of crimes and can equally help exonerate the
analysis, assumed by many to be objective barometers
innocent. Popular crime
of truth, involve subjective
shows like CSI:CrimeScene
interpretations. Although
The justice Project Recommendations
Investigation can give the
scientists have developed
•.States.should.create.an.independent,.
impression that forensic scia good understanding of
transparent.oversight.commission.to.
ence is flawless. However,
the sources of inadvertent
develop.and.enforce.quality.standards.
forensic science is not flawbias and have incorporatfor.forensic.science.laboratories.
less, and its use in the crimied effective safeguards in
nal justice system is in great
other areas of science, most
•.States.should.require.all.forensic.
need of reform. To ensure
forensic science laboratoscience.laboratories.to.develop.internal.
a more fair and accurate
ries—including the FBI
structures.and.policies.to.prevent.bias.in.
criminal justice system, it
laboratory—do not provide
testing.and.analysis.
is critical to improve the
adequate safeguards to pre•.States.should.ensure.that.all.forensic.
reliability, objectivity, and
vent bias and error in testlaboratories.are.independent.from.law.
independence of forensic
ing and analysis.
enforcement.and.prosecutorial.agencies..
analysis—the expert examiIn recent decades, the
•.States.should.require.that.all.forensic.
nation or testing of physiuse of forensic science in
laboratory.analysts.receive.proper.
cal evidence to determine its
criminal investigations
training.and.certification.
connection to a crime—and
and trials has skyrocketed.
forensic expert testimony
No other forensic science
•.States.should.allocate.sufficient.
in criminal investigations
technique has received as
funding.to.adequately.implement.these.
and trials.
much attention as DNA
recommendations.
The common percepanalysis. To date, DNA has
tion of forensic analysis as
exonerated more than twoa precise, objective science often obscures the fact
hundred people in the United States. These exonerthat many areas of forensic analysis involve disations are a reminder that our system is flawed, and
cretionary interpretations by individual analysts.
they have shed light on serious problems with the
Because the need for interpretation introduces a sigcriminal justice system, including forensic science.
nificant subjective element to some kinds of forensic
While many assume that forensic science is a nearanalysis, normal tendencies of human psychology
perfect tool for discovering the truth in criminal
can influence the interpretation of data in a way that
cases, a recent study found that false or misleading
threatens the fairness and accuracy of the analysis
forensic expert testimony is a leading contributing
and testimony used in criminal trials. As such, forenfactor in wrongful convictions.1 In fact, forensic evisic science laboratories that lack internal procedures
dence was presented by the state in 113 of the first
and standards to prevent bias create the greatest
two-hundred cases in which the defendant was later
danger to achieving justice.
exonerated by DNA testing.2
In the case of Brandon Mayfield, experienced FBI
There are many cases where individual analysts’
fingerprint analysts found that Mayfield’s fingerprints
erroneous or misleading analysis and testimony
1
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have led to wrongful convictions. Some cases exemplify the most egregious errors and show intentional
misconduct. These cases demonstrate the strong
need for oversight of all forensic laboratories. One
of the most notorious examples is Fred Zain, a former crime lab analyst in West Virginia and Texas,
who fabricated test results in over one hundred cases
during the late 1970s and throughout the 1980s.3
Many of the people convicted because of his work
went on to serve lengthy prison sentences, including five who were later exonerated through DNA
testing. In Texas, investigators discovered forensic
pathologist Ralph Erdmann faking autopsies, but
not before his testimony was used in twenty or more
death penalty convictions.4 The misleading testimony of former Illinois analyst Pamela Fish has been
implicated in the wrongful convictions of at least
seven men.5 While these examples of deliberately
false testimony are troubling, the bigger concern
is inadvertent error. Fortunately, the same reforms
that prevent misconduct also reduce the risk of
unintentional mistakes.
To increase the reliability, objectivity, and independence of forensic analysis and forensic expert testimony in criminal trials, and to increase fairness and
accuracy in the criminal justice system, The Justice

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Project recommends that states create an oversight
commission to set and enforce quality standards for
forensic labs, develop internal structures and policies
in forensic labs to prevent bias in testing and analysis,
make forensic labs institutionally independent from
law enforcement and prosecutorial agencies, improve
training and certification standards for forensic analysts, and increase funding to implement these essential changes. Without these reforms, the integrity of
the criminal justice system is threatened.
The Justice Project has developed this policy
review to facilitate communication among the legal
community, local law enforcement agencies, policymakers, practitioners, the public, and others by
explaining the problems with forensic science, and
by recommending positive reforms that can dramatically improve its practice. While forensic laboratories have yielded critical evidence in countless cases,
preventable error has subverted justice, convicted the
innocent, and jeopardized public safety. By implementing the reforms recommended in this policy
review, states can dramatically improve the practice and use of forensic science. As such, states can
improve the quality of evidence in criminal trials and
increase fairness and accuracy within the criminal
justice system.

PROBLEMS & SOLUTIONS

W

hile errors in forensic analysis and forensic
expert testimony are a leading contributing
factor in wrongful convictions, a series of reform
measures could dramatically reduce such errors. States
can ensure a more fair and accurate criminal justice
system by implementing a number of key reforms that
would help improve the reliability and objectivity of
forensic analysis and testimony in criminal investigations and trials. These reforms, described in greater
detail below, should focus on the following: creating
an independent, transparent oversight commission to
set and enforce quality standards; developing structures and policies within laboratories to prevent bias
in testing and analysis; ensuring institutional independence by making forensics laboratories independent of
law enforcement and prosecutorial offices; improving

training and certification standards for all forensics
laboratory analysts; and providing adequate funding to
ensure a more reliable and objective system. Without
these reforms, the risk of erroneous forensic analysis
and unreliable forensic testimony are likely to continue to contribute to wrongful convictions.
States should create an independent,
transparent oversight commission to develop
and enforce quality standards for forensic
science laboratories.
While DNA testing has led to the exoneration
of many wrongfully convicted individuals, it has also
shed light on the deficiencies of forensic science
in the criminal justice system. From negligence to
misconduct, one study has shown that faulty forensic


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evidence or testimony was a contributing factor in
nearly sixty percent of wrongful convictions.6 Some
of these wrongful convictions were a result of incorrect or improperly conducted tests. While many of
these mistakes are likely unintentional, many of them
could have been prevented with proper quality standards and policies. In some disturbing cases, crime
lab analysts have intentionally fabricated or misrepresented test results to aid prosecutions.7 Intentional
or unintentional, erroneous or misleading forensic
analysis or testimony severely undermines the fairness and accuracy of criminal trials.
Often operating with little or no oversight, forensic crime labs frequently lack safeguards necessary to
prevent the introduction of erroneous forensic analysis
into the courtroom, and most states lack any statutory
standards for forensic laboratories. To prevent error,
each state should create an independent oversight commission to regulate its forensic science laboratories.
The creation of a state oversight commission would
provide a venue for investigating cases of misconduct,
negligence, or poor management of testing practices.
The commission should implement quality assurance
standards, and monitor laboratory performance.
These commissions should include a cross-sec-

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tion of people from inside and outside the forensic
establishment and other stakeholders in the criminal
justice system, including prosecutors and defense
attorneys with expertise in forensic evidence. The
commission should set and enforce standards for
laboratory accreditation. Statewide standards and
rigorous oversight of forensic testing ensure that labs
operate in a way that is consistent with the highest
scientific standards.
The commission should create or adopt operational, training, administrative, and scientific standards and regulations for forensic laboratories and
other entities performing or offering forensic analysis in the state. The standards should be designed to
increase and maintain the objectivity, reliability, and
efficiency of forensic testing and analysis. As such,
the standards should include:
•	Minimum qualifications for forensic lab
employees, including analysts;
•	Certification and continuing education
requirements for all forensic techniques;
•	Training programs;
•	Quality control protocols;
•	Routine internal and external proficiency
testing;

Comparative Bullet-Lead Analysis: A Failed Forensic Test

T

he FBI has performed the technique of
matching the chemical makeup of bullets
found at crime scenes to other bullets—often
called comparative bullet-lead analysis—on bullets from thousands of criminal cases. Scientists
based the technique on the assumption that no
two batches of bullets would have precisely the
same chemical makeup, and that each batch of
bullets would have a consistent chemical makeup within that batch. Unfortunately, neither one
of these assumptions is true.8 Testimony from
forensic analysts about comparative bullet-lead
analysis has played a role in hundreds of trials
nationwide, leading to the incarceration of a
large number of individuals.9 A landmark 2004
study performed by the National Academy of
Sciences severely undermined the assumptions
forensics experts had made for years about the
accuracy of comparative bullet-lead analysis.

The study concluded that the test was far less
precise than analysts had often stated during
their testimony, and that some testimony about
the method was “misleading under federal rules
of evidence.”10
Despite concerns raised about the technique as early as 1991, defense lawyers and
judges rarely, if ever, challenged comparative
bullet-lead analysis testimony.11 The lack of
comparative bullet-lead analysis challenges in
court is a good example of the problem of
relying on judges and attorneys, rather than
experts in the sciences, to evaluate the validity
of scientific testimony.12 Following coverage by
the Washington Post and 60 Minutes, the FBI
agreed to implement a monitoring system to
ensure “the accuracy of its experts’ testimonies
in court,” and has stopped using comparative
bullet-lead analysis.13


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•
•

Internal disciplinary procedures;
Despite the terrible injustices caused by negliInternal structures and protocols to regulate
gent practices, the discipline of lab analysts is rare.
the flow of information between a forensic
Even in the most extreme cases, such as that of West
examiner and the person requesting forensic
Virginia serologist Fred Zain, discipline is often weak
services to minimize inadvertent bias in the
or non-existent.16 Even when a technician is removed
processing or interpretation of evidence and
from the lab, the consequences of poor performance
testimony;
are often minor. On one occasion, the erroneous
• Protocols for providing equitable access to
testimony and serological work of Cleveland crimelaw enforcement, prosecutors, and defense
lab technician Joseph Serowik led to the wrongful
counsel, and a process for recording such
conviction and thirteen-year incarceration of an
contact with the forensic lab;
innocent man. After the City of Cleveland fired
• Protocols for documenting forensic tests,
Serowik, a Cuyahoga County Common Pleas Judge
examinations and analyses, and for archiving
nominated him to head the forensics program of
reports, bench notes, and other important
nearby Youngstown State University.17 Developing
documentation, and for appropriate disclosure
and implementing procedures to hold forensic anaof such information; and
lysts accountable for misconduct is
• A licensing program for all
an essential reform. Strong internal
Despite the terrible
forensic laboratories offerlab disciplinary procedures provide
injustices
caused
by
ing lab tests, exams or analyan important check on employee
sis in the state.
negligence—a significant cause of
negligent practices,
In addition to developing the
wrongful convictions.18
the discipline of lab
aforementioned forensic laboratory
At the federal level, Congress
analysts
is
rare.
standards, the commission should
acknowledged the need for forenensure public access to the accreditasics reform by passing the Justice
tion program, including any and all documentation
for All Act of 2004. The act directly addresses the
with the end result of increasing transparency and
need for forensic oversight, instructing the U.S.
confidence in forensic evidence.
Attorney General to create and appoint members
The commission should provide an independent
to a federal forensic science commission, requiring
review of management practices and lab policies, while
federal laboratories to undergo frequent audits, and
also taking steps to ensure that testing and analysis
expanding the requirements for the Paul Coverdell
are performed accurately. The Justice Project recomForensic Science Improvement federal grant promends that such a commission would conduct effecgram.19 While the standards for forensics laboratotive accreditation and/or licensure audits, including a
ries presented in The Justice for All Act of 2004 do
review of testing and testimony in a random sample of
not apply to state or local crime labs, it provides a
completed cases. In addition, department heads and
good model for states to follow by requiring the creanalysts should be interviewed to uncover problems
ation of standards and ensuring oversight of forensic
with competency, proficiency, or training. An audit
laboratories.
should also include blind proficiency testing—testStates should design standards and regulations
ing in which the analyst is unaware of being evaluto increase and maintain the objectivity, reliability,
ated—for all lab analysts. This technique maximizes
efficiency, and accuracy of forensic laboratories and
the reliability of the test as a performance barometer
ensure that forensic analysis is performed in accorand effectively captures a snapshot of the analyst’s
dance with the highest scientific standards. To that
performance. Non-blind proficiency tests have been
end, a number of states attempt to meet this goal
shown to artificially inflate the accuracy of analysts’
by requiring accreditation by the American Society
work, hiding actual problems.14 Other scientific fields
of Crime Lab Directors Laboratory Accreditation
regularly employ blind proficiency testing, which can
Board (ASCLD/LAB).20 While this program has
identify problems with an analyst’s routine testing promuch to recommend in terms of standards and
cedures in a way that announced testing cannot.15
regulations, it falls short by lacking certain impor4
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tant requirements including: independence from law
enforcement and prosecutorial agencies, mandatory
blind proficiency testing, and procedures to prevent
inadvertent bias.21 Although requiring ASCLD/LAB
accreditation is a vast improvement over a complete
lack of standards, states should do more to ensure the
accuracy of forensic science.22

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tions of the crime, and other unnecessary information can evoke strong emotions, creating greater
risks of inadvertent bias. An expert with the FBI
Materials Analysis Unit stressed that “you work so
many of these cases that you try not to get involved,
but it’s very difficult when a crime involves a baby or
a small child, somebody that’s defenseless, and you
find yourself, I think, working harder to try to establish something in a case.”27
Utilizing procedures to minimize bias is not a
new idea. In fact, clinical and academic science labo-

States should require all forensic laboratories
to develop internal structures and policies to
prevent bias in testing and analysis
The information a forensic analyst receives prior
to performing any forensic testing or analysis can
have a subtle, but significant, effect on the objectivity of the analysis. When an analyst is assigned
a sample to test, it is common that they receive a
wide array of information about the sample and its
context. Information such as details of the crime,
names of suspects, where the police collected the
sample, and the expected result can have a huge
impact on the objectivity of the analyst. Information
about the crime, suspects, and where data was collected may not be necessary to accurately conduct
testing. At times, some of this data is necessary to
perform analysis, but analysts and those they receive
data from should take caution. Expectations and
desires can influence perception, and this extraneous information can skew the outcome of the testing
by subtly biasing the analyst.23 In one recent study,
experienced examiners misidentified almost seventeen percent of fingerprints when given unnecessary
contextual information.24
Forensic analysts are especially susceptible to
biases if other analysts, police, or prosecutors inform
them of other results from the same case before completing their own tests and making their own conclusions. Becoming aware of other test results or other
case evidence from the same case can push analysts
to expect a particular outcome, making it more likely
that their conclusion will fulfill this expectation.25
These dangers are especially real given the subjective
element of most forensic analysis and the high stakes
of the test outcomes.26
Another factor increasing the danger of bias is
the nature of crimes that leave forensic evidence
behind. Many crimes with the greatest amount of
forensic evidence available to test involve sensational
acts such as murder, assault, or rape. Photos, descrip-

The Need for oversight
he story of the Houston Police Department’s
(HPD) crime laboratory is a striking example of how poorly a forensics lab can operate
without proper oversight. A recent independent investigation found that analysts at the
HPD crime lab repeatedly tested DNA samples incorrectly and, in some cases, made up
results without actually testing evidence.28 A
special investigator was hired to examine the
HPD crime lab’s work in thousands of cases
and determined that the lab did not perform
or performed incomplete serology work in
over four-hundred cases.29 In addition to the
retesting of many cases, including four death
penalty cases, the investigation has proven
the innocence of three men who were wrongfully convicted with erroneous testing and
analyst testimony.30 There will likely be more
exonerations because so few of the retests
recommended by the investigation have taken
place. Texas has recently taken important
steps towards improving its forensics laboratories, but for those wrongfully convicted
because of the practices of the HPD crime lab,
no amount of reform can replace the time they
lost in prison. Unfortunately, without independent investigations, there is no way to know
how many other labs have problems similar to
those experienced at the HPD crime lab. One
thing is clear, however: only proper oversight
and accountability can ensure that forensic
science helps, rather than hurts, the criminal
justice system.

T


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ratories regularly control for these biases. However,
forensic labs generally do not.31 Because bias caused
by extraneous information operates at a subconscious
level, it cannot simply be “trained away.” In addition, bias caused by extraneous information is not a
question of ethics or misconduct. Often, the bias is
inadvertent. While training and professionalism are
important, inadvertent biases are caused by subtle
psychological tendencies that we all share, not by
inexperience or a lack of professionalism.
Laboratories can minimize biases by implementing appropriate internal structures and policies. One
way to limit the amount of background information
an analyst receives prior to testing is to create a position designed to manage the flow of information
between law enforcement investigators and analysts,
such as an evidence control officer. A person in such
a position could filter out irrelevant information and
provide an analyst with only the information needed
to test the evidence. Evidence control officers should

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have advanced degrees in science, enabling them to
determine what information is necessary for accurate
testing and to formulate the least subjective questions for analysts.34
This position, or another similar structure to prevent extraneous information from reaching analysts
prior to testing, is necessary to protect against inadvertent bias. Minimizing inadvertent bias will improve
the accuracy of forensic testing and analysis, increasing the reliability of the criminal justice system.
States should ensure that all forensic
laboratories are independent from law
enforcement and prosecutorial agencies.
In most states, police agencies or other public
safety agencies have jurisdiction over the operation
of public forensic laboratories.35 Due to the nature of
their location within law enforcement or prosecutorial agencies, forensic science laboratory employees
often have close, collegial relationships with law
enforcement and prosecutors conducting investigations of crimes. In addition, many forensic analysts
come from law enforcement backgrounds. As a
result, analysts sometimes see their role as part of
the crime-fighting team as opposed to being a fully
objective agent of science.36 In some circumstances,
the nature of forensic analysis will be unaffected
by such factors. However, in other types of analysis—those types of forensic analysis with a significant
subjective element—the risks of inadvertent bias cannot be ignored.37
States must address the issue of inadvertent bias
on the part of analysts. Forensic science lab analysts
must be fully objective agents of science. Analysts
must operate without bias or favor. In its report, the
Illinois Commission on Capital Punishment recommended that labs should operate as an “independent
third force in the criminal justice system.”38 The
operation of forensic laboratories as part of law
enforcement or prosecutorial agencies is at odds
with this needed objectivity. Making forensic science laboratories structurally independent from law
enforcement and prosecutorial agencies is a reform
that is needed to effectively guarantee an environment of impartiality and objectivity.
The real harm of inadvertent bias is that: “Juries
tend to regard forensic evidence more highly than
they regard witnesses because it is purportedly more

The Effects of Biasing Information
ne study confirms what many experts had
suspected about the power of biasing
contextual information in forensic analysis.32 In
this study, experienced analysts were asked to
evaluate a series of fingerprints to determine if
they matched.33 Though the analysts believed
the prints were for an actual, open case, they
were actually reexamining prints they had correctly evaluated in the past, this time accompanied by artificial contextual information,
such as that the suspect had confessed. The
results were striking. In cases where analysts
were given contextual information about the
fingerprints, they were wrong in almost seventeen percent of the cases. These errors were
particularly notable because the same analysts
had previously evaluated the prints correctly.
This study highlights the need to ensure that
contextual information does not undermine
the objectivity of analysts by making forensics
labs independent from law enforcement and
prosecutorial agencies and by regulating the
flow of information between investigators and
forensic analysts.

O


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objective. But forensic scientists work so closely with
certification is less effective in ensuring competence
the police and district attorneys that their objectivity
than required certification.45
cannot be taken for granted.”39
One potential problem is that many analysts
A handful of states are leading the way on
come from criminal justice, rather than scientific,
making labs independent from law enforcement
backgrounds. Crime-fighting bias can lead to inacand prosecutorial agencies. Maryland, for examcurate results.46 Less scientific training also decreases
ple, gives the Department of Health and Mental
the likelihood that forensic analysts will critically
Hygiene jurisdiction over the regulation of forenanalyze information received from police, prossics laboratories.40 The State Crime Laboratory in
ecutors, and their colleagues.47 Even with scientific
Arkansas operates independent of law enforcement
training, however, a bachelor’s degree in some cases
or the Attorney General and the executive direcis not enough to ensure competence. One study
tor is accountable directly to
found that, “hands-on training is
the governor.41 Virginia also has
needed to develop and maintain
Analysts should be
an independent Department of
expertise, update knowledge and
42
Forensic Science. Other states
skills, and keep up with advanccertified before they
should follow the lead of these
es and changes in technology.”48
are allowed to perform
states. Forensic laboratory indeImproved training must involve
forensic analysis or
pendence is an essential part of
additional field work and blind
testify
in
criminal
trials.
addressing bias, as it effectively
proficiency testing.
protects the neutrality of forensic
In addition to creating a protesting and testimony, thereby
gram for certification and trainenhancing the fairness and accuracy of the criminal
ing, laboratories should adopt and teach an ethical
justice system.
code. The creation of a strong ethical code provides
analysts with a guide to understanding the serious
States should require that all forensic science
nature of their responsibilities by helping them navilaboratory analysts receive proper training
gate the sometimes challenging ethical waters of a
and certification.
forensics laboratory.
The output of any forensic science laboratory is
only as strong as the analysts performing the work.
States should allocate sufficient funding to
Thus, any attempt to reform forensic science must
adequately implement these recommendations
ensure that laboratories provide proper training and
Lack of funding is a common problem in public
certification for its analysts. Currently, training proforensic laboratories. In many states, funding for
grams vary wildly around the country. While forenforensic laboratories has remained constant, despite
sic science is an important part of the criminal justice
a dramatic increase in workload. As a result, labosystem, the practice itself is scientific in nature. Care
ratories that do not receive adequate funding to
is needed to ensure that forensic analysts have a
implement much needed reforms are often incredgreater interest in performing objective science than
ibly short-staffed, have underpaid lab employees, and
in fighting crime.43 In addition to improving analyticarry large backlogs of evidence to be tested, resulting
cal skills, effective training improves respect for, and
in delayed trials.49 One study reports that increasing
belief in, forensics as an objective science.
the number of personnel in the field is the number
Analysts should be certified before they are
one need of the forensic science community.50 A lack
allowed to perform forensic analysis or testify in
of funding also endangers quality control and often
44
criminal trials. The commission recommended
encourages rushed or non-existent oversight.
above should adopt and enforce a certification and
States must increase funding to implement the
continuing education program for all forensic anaaforementioned recommended reforms. Laboratories
lysts, examiners, and technicians in all forensic fields.
can use new funding to increase capacity, an issue
Certification should be mandatory, not voluntary.
of critical importance for the countless jurisdictions
Research in other fields has proven that voluntary
across the country with backlogs of evidence waiting
7
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to be tested. Due to low salaries, it is often difficult for
forensic laboratories to hire and retain highly qualified
analysts. As a result, increasing analyst salaries to make
them more competitive is another pressing funding
need. Salaries should reflect the importance of forensic analysts to the accuracy of our criminal justice
system. Ninety-six percent of positions in forensic science laboratories are held by persons with a bachelor’s
degree or less.51 Salaries must be competitive with
other job opportunities to attract the best and the
brightest applicants.52 The state-created oversight
commission recommended above will also require
funding. While it may be possible to have members

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of the commission serve without compensation, the
costs associated with any investigative oversight body
will require funding. Without sufficient funding, such
a commission cannot be effective.
A failure to properly fund forensic science can
lead to tragic results. Congress recognized the
importance of adequate funding for forensic science in 2000 by passing the Paul Coverdell National
Forensic Science Improvement Act.53 Now, states
can follow the federal government’s lead to deal with
backlogs of forensic material, increase the pay of
qualified analysts, improve training, and create and
enforce meaningful lab standards and oversight.

THE LEGAL LANDSCAPE

A

ttorneys and judges have not been successful in
their attempts to prevent the introduction of
bad forensic evidence in the courtroom.54 Courts
often admit forensic evidence with little scrutiny of
its reliability. This failure is not necessarily caused by
any bias or prejudice on the part of the court or the
attorneys in the case. Rather, judges and attorneys
often simply do not have the scientific background to
make educated decisions about the reliability of evidence.55 This is especially significant given the weight
that jurors are likely to put on forensic evidence.
One study found that “[a]bout one quarter [of jurors
who] were presented with scientific evidence believed
that had such evidence been absent, they would have
changed their verdicts—from guilty to not guilty.”56
The traditional standard for admissibility of expert
testimony, as stipulated by the Supreme Court, is that
the techniques used to gather and test the forensic
evidence must be “generally accepted” by those in the
field.57 The number of wrongful convictions caused
by erroneous forensic testimony have shown this
standard to be an insufficient safeguard. Ultimately,
judicial safeguards alone are simply unable to effectively protect against faulty forensic evidence. As a
result, statutory reform is vital to ensure the reliability of forensic evidence in criminal cases. The
following section is a brief overview of the federal
courts’ attempts to act as gatekeepers against unreliable types of forensic evidence.

Daubert and the Expansion of
Federal Rule of Evidence 702
The first 20th century ruling on the admissibility of expert testimony came in the 1923 case of Frye
v. United States. In Frye, the Court held that, “expert
opinion based on a scientific technique is inadmissible unless the technique is ‘generally accepted’ as
reliable in the relevant scientific community.”58 The
Federal Rules of Evidence Rule 702, instituted in
1975, superseded Frye at the federal level, but many
states that had adopted the Frye standard in the wake
of the Court’s decision continued to apply the Frye
test in determining admissibility standards for the
introduction of expert testimony in state courts.
In 1993, the United States Supreme Court
issued the landmark ruling of Daubert v. Dow
Pharmaceuticals, ruling that “general acceptance” is
not sufficient as a precondition for the admissibility of scientific evidence under the Federal Rules of
Evidence. Rather, the Court explained, the Rules
assign the trial judge with the task of ensuring that
expert testimony “rests on reliable foundation and
is relevant to the task at hand.”59 The Federal Rules
of Evidence, in turn, were modified to clarify the
Supreme Court’s decision in Daubert:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a


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cases.”66 Courts’ unwillingness to play gatekeeper in
criminal cases means that Daubert has not prevented
the introduction of unreliable forensic evidence in
criminal cases.
State laws on admissibility also vary widely. Some
states continue to follow the Frye standard for admitting expert testimony while other states have opted
to employ the Daubert standard in their courts. Four
states, Wisconsin, Virginia, Georgia, and Utah, have
created their own, non-Frye, non-Daubert rules.67
When compared with the Frye standard, Daubert
Traditional types of forensic evidence are easily
made admissibility easier for relatively new, welladmitted into court under either standard and most
grounded science which might
jurors consider it highly trustwornot yet have achieved wide accepthy. Thus, it is imperative to do
Case
law
and
the
tance. Conversely, for poorlywhat is possible to ensure that it is,
record of exonerations
grounded sciences which nonein fact, trustworthy.
theless had come to be widely
illustrate that judges
accepted, Daubert raised the
KuMHO: aN ExTENSION OF
are simply unable to
threshold and made admissibility
daUBERT
effectively keep faulty
harder (because such fields fall
KumhoTireCo.v.Carmichael is
forensic evidence out
short on Daubert’s more objective
another important U.S. Supreme
criteria).61 Furthermore, Daubert
Court case ruling on the issue of
of the courtroom.
places the determination of reliexpert testimony.68 Kumho makes
ability in the hands of judges with
clear that Daubert applies to all
the implication “that the trial judge, after applying
kinds of expert testimony, not only scientific testimony:
various measures, would know scientific reliability
when he or she saw it.”62
It would prove difficult, if not impossible, for
Daubert created an important precedent. The
judges to administer evidentiary rules under
Daubert standard was used to challenge the dependwhich a “gatekeeping” obligation depended
ability of expert evidence presented by plaintiffs in
upon a distinction between “scientific” knowl63
civil cases. Commentators hailed this ruling as a
edge and “technical” or “other specialized”
powerful improvement from the Frye standard, but
knowledge. There is no clear line that divides
enthusiasm muted when it became clear that courts
the one from the others…We conclude that
would aggressively apply the standard in civil cases
Daubert’s general principles apply to the expert
64
while rarely applying it in criminal cases.
matters described in Rule 702.69
Following Daubert, the quality of expert testimony in civil cases increased dramatically. Judges
Kumho has important implications for forensic
were much less enthusiastic about applying the
science. In amicus briefs for the case, forensic sciDaubert standard to criminal cases. When criminal
entists, realizing that much of their work was not
defendants challenged the reliability of forensic
based on well-researched and established foundaevidence on the grounds of the Daubert standard,
tions, asked the court not to extend Daubert beyond
judges consistently ruled in favor of the governthe realm of science. Forensic scientists hoped to
ment, maintaining broad admissibility of ‘expert’
find refuge (and continued admissibility) by refraintestimony.65 One scholar observes a “troubling gap
ing from calling what they did “science.”70 In Kumho,
in the way judges apply Daubert and Rule 702 in
the Supreme Court rejected this argument, and the
civil cases and criminal cases. Judges have excluded
stage was set for the foundations of forensic scia lot more evidence in civil cases since Daubert and
ence to be evaluated more rigorously by the courts.
there has been surprisingly little change in criminal
Regrettably, the lack of judicial gatekeeping with
fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or
education, may testify thereto in the form of
an opinion or otherwise, if (1) the testimony
is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles
and methods, and (3) the witness has applied
the principles and methods reliably to the
facts of the case.60

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respect to forensic science following Kumho makes
clear that forensic scientists had no reason to be as
worried as they were. In the context of prosecutionproffered forensic identification expertise, “[t]here is
almost no expert testimony so threadbare that it will
not be admitted…”71
Case law and the record of exonerations illustrate
that judges are simply unable to effectively keep
faulty forensic evidence out of the courtroom. And

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history has shown that defense lawyers are often
unable to judge the reliability of forensic testimony.
Consequently, lab results are almost always accepted
prima facie without regard to whether the laboratory lacks appropriate standards, independent oversight, or adequately trained and qualified analysts.
Statutory forensic science reform is vital to ensure
the reliability of forensic evidence in criminal cases
and to protect against wrongful convictions.

PROFILES OF INjUSTICE
Ron Williamson & dennis Fritz’s Story

I

naccurate and misleading forensic evidence led
received from Fritz, and four hairs that were “consisto the conviction of Ron Williamson and Dennis
tent” with the sample from Williamson. During his
Fritz for a rape and murder they did not commit.
testimony at trial, he said the hairs were “consistent
Each spent over a decade in jail—Williamson on
microscopically and could have come from the same
death row—until DNA testing exonerated them.
source.” This meant, in his opinion, that the visual
Prior to their arrests, Fritz was a high school teacher
hair comparison did not exclude Williamson and
and a single father and Williamson had been a star
Fritz as suspects.74
baseball player before an injury prevented him from
Visual hair comparison was first used in criminal
playing anymore, and psychiatric disorders began to
prosecutions in the U.S. in 1882 in Wisconsin, where
plague him.72
an expert visually compared two
The main physical evidence
hairs, then claimed they came from
The main physical
purporting to link Williamson and
the same source.75 On appeal the
evidence purporting
Fritz to the crime was a microscopic
Wisconsin Supreme Court ruled
hair comparison. Forensic analysts
that this type of evidence was of a
to link Williamson
compared the hairs of Williamson
“dangerous character.”76 Since then,
and Fritz to the crime
and Fritz with those found at the
the science of visual hair compariwas a microscopic
scene. Though the investigators colson has not advanced. The court,
lected hairs from the victim’s famgranting Williamson his writ of
hair comparison.
ily and friends and other suspects,
habeascorpus, wrote, “This court has
habeascorpus
an analyst at the Oklahoma State
found an apparent scarcity of scienBureau of Investigation (OSBI), testified that out
tific studies regarding the reliability of hair analysis
of the forty-five reference samples she received, she
testing. The few available studies reviewed by this
only mounted those belonging to Williamson and
court tend to point to the method’s unreliability.”77
Fritz onto microscopic slides. The same analyst later
The court cited a study from The Law Enforcement
felt that she could not be objective in the investigaAssistance Administration of over two hundred crime
tion because of the stress and strain of working on
labs that found the weakest area of performance was
numerous homicide cases and she gave the samples
visual hair comparison, with error rates as high as
to another staff member, Melvin Hett.73
sixty-seven percent on individual samples, and inacHett testified that he spent several hundred
curacies in four out of five of the samples analyzed in
hours examining the hair samples he received. He
the majority of police laboratories.78
claimed to have found eleven hairs from the crime
In addition to the visual hair comparison, the
scene that were “consistent” with the sample he
OSBI tested semen, saliva, and blood found at the
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scene. The forensic evidence obtained in these
investigations was integral to the convictions of
Williamson and Fritz. Testing of the semen and
saliva revealed that the perpetrator of the crime was
a “non-secretor,” a characteristic shared with fifteen
to twenty percent of the population. Non-secretors
do not secrete any blood antigens that would identify blood type into other bodily fluids; therefore
blood type cannot be determined from the semen or
saliva of these individuals. During the investigation,
a forensic analyst at OSBI tested the saliva of twenty individuals, including the victim, to determine
whether or not they were secretors. Of these twenty,
twelve individuals were non-secretors, including
both Williamson and Fritz. Despite this information,
the analyst did not seek to confirm any of the individuals’ status as non-secretors through an additional
blood test, except for Williamson and Fritz.79

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Although the blood type of the perpetrator
could not be determined from the semen or saliva,
the OSBI was able to identify the blood type found
under the victim’s fingernails as type A, the same as
the victim’s. Both Fritz and Williamson have type
O blood.80
After Williamson’s public defender had received
permission to test the DNA found at the scene and
Fritz had contacted The Innocence Project for
post-conviction assistance, tests conclusively exonerated both men. The DNA found at the scene
matched the man who had originally led police
to suspect Williamson in the first place.81 The
true perpetrator had given samples of hair at least
twice to Oklahoma authorities during the original
investigation, but the OSBI failed to compare them
with the unidentified hairs found at the victim’s
apartment.82

donald Reynolds & Billy Wardell’s Story

C

hildhood friends Donald Reynolds and Billy
only have come from thirty-eight percent of the black
Wardell spent over a decade in prison for a
male population, and that Reynolds was included in
crime they did not commit, largely due to a lack of
this segment of the population.85
oversight and transparency in the forensic lab that
Nearly a decade after their trial, DNA testing was
tested evidence in the case. In addition, an exculpafinally conducted on semen from the rape kit, proving
tory forensic report was never disclosed, and the
that neither Reynolds nor Wardell was the attacker.86
erroneous testimony of a forenAlthough prosecutors originally
sic expert was used to shore up
opposed overturning the convicNearly a decade after
questionable eyewitness identifitions, arguing that the eyewitcations. In 1997, DNA tests exonness identifications should trump
their trial, DNA testing
erated them both.
the DNA, a new assistant state’s
was finally conducted
Before their joint jury trial,
attorney took over the case and
on semen from the rape
Reynolds and Wardell requested
eventually agreed to the release of
kit, proving that neither
that DNA evidence in the case
Reynolds and Wardell.87
be tested. The judge denied the
Evidence of wrongdoing by
Reynolds nor Wardell
request on the grounds that the
the forensic experts was uncovwas the attacker.
testing was too new and its reliered after Reynolds and Wardell
ability and methodology not yet
were released. The testimony of
sufficiently established to allow it in court.83 As a
forensic lab analysts Pamela Fish, which claimed that
result, only basic blood testing was performed on the
the perpetrator and Reynolds both had a blood type
evidence.
characteristic shared by only thirty-eight percent of
At trial, the victims of the crime identified
black males, was exposed as false. Fish based her tesReynolds and Wardell as their attackers.84 In additimony on what forensic experts later characterized
tion, police serologist Pamela Fish testified at trial
as a “narrow, prejudicial view of the evidence.”88 In
that semen recovered from one of the victims could
fact, an independent expert analysis showed that, had
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Fish accounted for other possibilities, nearly eighty
percent of black males could have shared the characteristic.89 The false testimony was only discovered as
a result of investigations into the unrelated wrongful
conviction of John Willis (another victim of Fish’s
misleading testimony).90
An independent analysis of cases in which Fish
testified found that, “[i]n many of these cases, Ms.
Fish misrepresent[ed] the scientific significance of her
findings either directly or by omission … The nature
of these errors are such that a reasonable investigator,
attorney or fact finder would be misled ... And always
… she offered the opinion most damaging to the
defendant.”91 Fish’s misleading testimony has since
been identified as a factor in the wrongful convictions
of at least five others.92
In addition to the misleading testimony, important exculpatory forensic results were never provided
to defense lawyers despite their formal requests for all
scientific tests and any exculpatory evidence. Chicago
Police crime analyst Maria Pulling prepared a report
concluding that hairs found on Reynolds’ underwear
did not match either victim. It is unclear whether the
failure to disclose the report was intentional or inadvertent, but Pulling later swore of her report that “It
was significant exculpatory information—it indicated

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that the hair and fiber evidence taken from [the victim] did not match the evidence from Reynolds. This
should have been reported to the defense.”93
Dr. Howard Harris, former head of the New
York City police crime lab and former president
of the American Society of Crime Lab Directors,
prepared a report at the request of attorneys for
Reynolds and Wardell, in which he identified many
shortcomings in the Chicago Crime Lab. Prominent
among them were a lack of training and guidelines
regarding presentation of testimony, and a lack of
monitoring of testimony that could serve as a check
on misleading characterizations of results. “Failure
to train and/or monitor examiners’ courtroom testimony can lead to serious deviations from proper
testimony,” wrote Harris. “Further, the importance
of resisting advocacy type pressures from investigators or state’s attorneys is also an ethical issue of great
difficulty for examiners, particularly in police-run
crime laboratories and should be formally covered
in training.”94
Reynolds and Wardell each lost eleven years of
their lives. After receiving pardons from Governor
Jim Edgar, the Illinois Court of Claims paid each of
them $120,300.95 They also recovered $45,000 each
in a settlement of a civil suit against the city.96

Brandon Moon’s Story

E

rroneous forensic testimony by a state forensic crime lab analyst and the botched handling
of exculpatory post-conviction DNA results kept
Brandon Moon in prison for seventeen years for a
rape he did not commit.
Authorities arrested Moon after the victim tentatively picked him out from a photo array. She
later identified Moon in a live lineup. Based on the
identification, police contacted three other women
who had been victims of similar attacks in the same
area, all of whom subsequently identified Moon as
their attacker.
At trial, the prosecutor called Glen David
Adams, a serologist at the Texas Department of
Public Safety (DPS) Crime Lab in Lubbock, to the
stand to testify that physical evidence corroborated
the eyewitnesses identification. Adams testified that

he examined the semen stains from the crime scene,
and that his analysis excluded the victim’s husband
and son, but indicated Moon could have been the
source of the semen. He explained that the semen
was deposited by a non-secretor—one whose blood
type antigens are not found in other body fluids—
and that Moon was among only fifteen percent of
the population that was a non-secretor. Jurors later
said that Adams’ testimony figured prominently in
their decision to convict.97
Despite his conviction, Moon continued to
proclaim his innocence and began filing motions
to have the evidence re-tested. Eventually, he won
access to DNA testing—technology that was still
in its infancy at the time. While the results of the
tests seemed to exclude Moon as the source of
some crime scene evidence, the results were not yet
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exculpatory because the victim’s reference sample
teenage son (it was the son’s bathrobe), prosecutors
was not tested. Moon continued to petition for
could argue that the results were not exculpatory,
further testing.
because the perpetrator may not have left DNA
In 1996, Assistant El Paso District Attorney John
behind.102
Davis was preparing a response to Moon’s latest
Moon’s new lawyers with the El Paso Public
appeal and requested that the DPS crime lab review
Defender’s Office tracked down the victim’s now
the evidence. In a December 1996 internal memo,
ex-husband, but could not find her son. The ex-husDPS scientist Donna Stanley raised serious questions
band agreed to offer a DNA sample, but, believing it
about the original DPS testing and testimony by
would be useless unless they could also get a referAdams. Stanley wrote in the memo “It is imperative
ence sample from the son, the lawyers waited to colto obtain a blood sample from Brandon Moon and
lect it while they continued their search.103
98
the victim’s husband in order to resolve this case.”
The Innocence Project subsequently took the
Stanley proceeded with DNA testing that proved
case. In November 2004 the victim’s husband gave a
that the crime scene stains on a
reference sample that matched the
comforter and bathrobe came from
comforter stain but not the bathDNA testing
two different men. She sent a report
robe. Further testing proved that the
to Davis in January 1997 stating
son could not have been the source
demonstrated
reference samples from Moon and
of the stain either, leaving only the
Moon’s innocence,
the victim were too old and degradrapist.104
and
it
also
exposed
ed to test. Stanley claimed that
DNA testing demonstratgrave flaws in the
additional reference samples from
ed Moon’s innocence, and it also
Moon, the victim, and her ex-husexposed grave flaws in the original
original work and
band were needed to determine
work and trial testimony of Glen D.
trial testimony of
whether Moon could be excluded as
Adams, the state crime lab’s seroloGlen D. Adams, the
the perpetrator by the crime scene
gist. Adams testified that the victim’s
state crime lab’s
evidence. She left her DPS job four
husband was definitely excluded as
days after sending her report to
a source of the comforter stain, yet
serologist.
Davis. By this time Moon’s appeal
DNA proved that the comforter
had been denied.99
stain originated from the husband.
No one in the DPS lab or the DA’s office ever
In fact, Adams’ original testing could not have
followed up on the request for reference samples.
included or excluded any person or suspect.105
Lab officials said they could only act at the direction
An investigative reporter with the ElPasoTimes
of the DA’s office. A DPS spokesperson offered the
later documented that Adams was brand new at his
following explanation to the El Paso Times in 2005:
job when assigned the Moon case, had received a
“No additional samples were ever received, so there
D in his college serology course, was struggling
was no further work to complete; therefore no other
through a significant work backlog at the time, and
personnel were assigned to the case.”100 Assistant El
that a supervisor indicated in a review that he had
Paso DA John Davis told the paper that it “wasn’t my
an insufficient understanding of the basics of blood
role as the prosecutor to go out and manufacture or
analysis.106
produce exculpatory evidence.” In short, both the lab
In December 2004, after the multiple tests and
and the prosecutor ignored Stanley’s red flags.101
analyses were complete, Brandon Moon was finally
Based on Texas’ then-new post-conviction DNA
freed from prison with the support of prosecutors
testing statute, Moon finally won access to further
after seventeen years of wrongful incarceration. El
testing in 2002. This testing conclusively excluded
Paso District Attorney Jamie Esparza issued the
Moon as the contributor of any semen from the
following statement: “I would like to convey my
crime scene comforter or bathrobe, but the results
apologies to Mr. Moon on behalf of the state of
were still not enough to free Moon. If the stains
Texas and acknowledge that an apology at this time
could be traced to either the victim’s husband or
is inadequate…”107
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SNaPShOTS OF SUCCESS

W

hile most states lack important safeguards that
prevent against erroneous forensic analysis and
testimony, some states have taken measures to ensure
that forensic science and testimony are fair, accurate,
and reliable. States like Maryland, New York, and
Texas are case studies in forensics reform.

NEW yORK
A 1994 law in New York created an oversight
board to regulate forensic laboratories in the state.111
The board sets minimum standards for accreditation,
which include an initial inspection of the lab, routine
inspections, quality control, and annual certification.
The board can also investigate cases of negligence or
MaRyLaNd
misconduct. The board can revoke accreditation if,
On April 24, 2007, the governor of Maryland
among other things, there is misrepresentation during
signed a bill creating an independent system for the
the initial accreditation or if the lab shows a pattern
oversight of forensic laboratories in Maryland.108
of excessive errors. The commission has determined
Maryland’s law actively fosters fairness and accuthat accreditation by the American Society of Crime
racy at publicly funded forensics
Laboratory Directors Laboratory
laboratories by giving oversight
Accreditation Board (ASCLD/
Maryland’s law actively
responsibility to the Department
LAB) or the American Board of
of Health and Mental Hygiene
Forensic Toxicology is sufficient
fosters fairness and
(DHMH), rather than the
to ensure quality, but requires
accuracy at publicly
Department of Public Safety or
that inspections take place roughfunded forensics
the Attorney General.
ly every two and one half years,
laboratories by giving
The legislation directs the
rather than every five years as
DHMH to create a quality assurrequired by ASCLD/LAB.112
oversight responsibility
ance program, retain all case files
The commission must meet
to the Department
for ten years, establish qualificaat least four times a year and
of Health and Mental
tions for personnel of forensic
consists of fourteen members
laboratories, establish procedures
who receive no compensation.
Hygiene, rather than
for verifying the background and
The commissioner of the divithe Department of
education of personnel, and estabsion of criminal justice services
Public Safety or the
lish additional standards assuring
and the commissioner of the
Attorney
General.
that labs provide accurate and
department of health or his or
reliable services. The legislation
her designee are automatically
also creates a forensic proficiency
members of the committee, and
program, overseen by the Secretary of the DHMH.
the governor appoints twelve other members to
Licensing will be required for labs beginning in 2012.
serve three year terms.
The director of Department’s Office of Healthcare
The law also establishes that tampering or
Quality at DHMH commented that this delay was
attempting to tamper with any DNA sample or
needed, “to be sure that we do this right. We want to
collection container without lawful authority is a
work with the laboratories and the advocates…really
Class E felony.113 John Hicks, Director of New York
bridge the gap between the people who are seeking
State’s Office of Forensic Services, has said that the
change and the people who are providing the serreforms have been successful.114 He points specifi109
vices.”
cally to the working groups established by the Office
If any lab is found to not meet the DHMH stanof Forensic Services as being a model for other states
dards, DHMH will document the reasons and make
to follow. Analysts and other forensics lab employees
such information public. In addition, labs must make
are grouped according to job-function, and meet two
discrepancy logs, contamination records, and test
to three times a year. During these meetings, they
results available to the public within thirty days of
share experiences and find solutions to problems
completion.110
they encounter. The meetings add uniformity and
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increase shared knowledge of the analysts at New
York’s twenty-three forensics laboratories. Finally,
proper funding ensures that New York does not have
a backlog of DNA analysis for pending cases, turning
around nearly all evidence within thirty days.115

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ten million dollars to the Department of Public
Safety for its crime labs.117
Texas also passed legislation in 2005 creating
a Forensic Science Commission, which is similar
in composition to the New York Forensic Science
Commission mentioned above.118 The creation of
this commission is a major step towards implementing effective, independent oversight. As an investigative body, the commission’s main responsibilities are
to identify problems, recommend quick corrective
action, and demand effective implementation of
reforms. Members of the commission are appointed
by the governor, attorney general, and lieutenant governor. The commission was appropriated
$500,000 in the 2007 legislative session.

Texas
Since the investigation of the Houston Police
Department (HPD) crime lab, Texas has taken steps
toward forensic science reform. In response to the
2002 audit of the HPD crime lab, the Texas state
legislature passed legislation in 2003 requiring evidence to come from laboratories accredited by the
Department of Public Safety in order to be admissible at trial.116 The bill also appropriated almost

Questions & Answers
the criminal justice system. DNA-based exonerations
shine a light on the failures of our criminal justice
system, and the results for forensic science do not
inspire confidence. Erroneous and misleading forensic science is the second leading contributing factor
in wrongful convictions, contributing to nearly sixty
percent of the first two-hundred wrongful convictions overturned by DNA evidence.120

I thought forensic science was fool-proof.
Why are reforms necessary?
When properly conducted, forensic analysis can
be a useful tool, helping to increase the accuracy
of our criminal justice system. Due to the fact that
forensic science enjoys a reputation as an objective,
precise type of evidence, judges and juries often
accept forensic evidence and testimony with little
challenge. Therefore, it is critical that forensic analysis and testimony be as accurate as possible.
Unfortunately, the lack of oversight, structural independence, proper training, and adequate
funding for forensics in most states undermines
the accuracy of forensics analysis. Inaccurate or
misleading forensic analysis is a leading contributing factor in wrongful convictions.119 Fortunately,
there are solutions to this problem. Implementing
the reforms outlined in this review accomplishes
two goals: strengthening the convictions of the
guilty, and reducing the likelihood of imprisoning
the innocent.

Why do judges allow the use of erroneous
forensic evidence and testimony?
Judges often lack the scientific expertise and
background to determine the reliability of forensic evidence. In addition, attorneys often lack
the scientific background necessary to effectively
cross-examine forensic experts and expose faulty
science.
Courts have rigorously upheld rules about the
admissibility of expert testimony in civil cases, but
these rules are seldom used in criminal cases.
The courts have left it to state legislatures to
implement standards and oversight of forensic laboratories. In recent years, states such as Maryland and
Texas have demonstrated that they take this responsibility and have passed legislation to improve oversight, standards, training, and certification.

Has forensics played a role in wrongful
convictions?
Issues with forensic science are enough of a
problem to jeopardize the fairness and accuracy of
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VOICES OF SUPPORT
“[Forensic science] is justice’s best friend, but it has to
not only be used right but done right. There needs to
be a way to hold the labs accountable.”121

“This [Virginia state] laboratory that touts itself as the
best DNA laboratory in the country generated erroneous test results in a capital case twice, using two different DNA methods … I think this proves our point
that crime labs cannot police themselves.”126

Juan Hinojosa
Texas State Senator
USA Today, March 31, 2006

Peter Neufeld
Co-director of The Innocence Project
Chicago Tribune, May 8, 2005

“Full disclosure by [crime labs] is crucial to the integrity of the system.”122

“There needs to be vigorous disclosure and vigorous
scrutiny in any adversarial system … In our American
system of justice, we don’t just rely on the government to tell us everything is right.”127

Anne Daly
President of Washington Defenders Association
Seattle Post-Intelligencer Reporter, March 13, 2004

Greg O’Reilly
Chief of Cook County Public Defender’s
Forensic Unit, Illinois
Chicago Tribune, October 20, 2004

“More frequent audits by an independent body are
needed to ensure the lab is following proper protocols… One wrongful accusation in my mind is just
inexcusable. It should be above reproach.”123
Senator Val Stevens
Arlington, Virginia
Seattle Post-Intelligencer Reporter, September 14, 2004

“If I’m a defense counsel and there’s science involved
… [I] should be able to go to that examiner and
be able to say, ‘What did you do? What was your
method? What were your findings?’ And the people
who are working at the state crime lab should not
take the position that ‘we are an arm of the prosecution.’ They’re scientists. They should be an arm of
the truth.”128

“A diverse commission with a lot of liberty to go into
local jurisdictions and look at their labs looks like the
best answer.”124
Senator John Whitmire
Texas Senate Criminal Justice Chairman
The Houston Chronicle, February 28, 2005

Judge Daniel Locallo
Cook County Circuit Court, Illinois
Chicago Tribune, October 20, 2004

“It’s not unusual for people in a lab position to get
pressure from various agencies about what tests are
needed or when you get to testimony. The DA’s
office can exert pressure. If your program isn’t set
up to protect your analysts from that, it can lead to
trouble. An oversight board might make sense… To
keep the current lab structure, but have a board that
involves law enforcement types but also scientists
and others, would allow us to continue to serve our
communities.”125

“The search for truth in criminal cases has increasingly relied on the forensic science community. If
forensic evidence is not objectively tested, analyzed,
and interpreted by adequately trained scientists, the
search for truth will potentially be compromised, if
not defeated.”129
Betty Layne DesPortes
Defense Lawyer and Chairwoman of Jurisprudence
Section of the American Academy of Forensic
Sciences
ABA Journal, July 2005

Timothy Sliter
Dallas’ Southwestern Institute of Forensic Sciences
The Houston Chronicle, February 28, 2005

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A MODEL POLICY
An Act to Ensure the Objectivity and
Reliability of Forensic Evidence 130
Section I. Purpose
The purpose of this Act is to enhance the reliability, independence, and objectivity of forensic
analysis and testimony in order to ensure a fair and accurate criminal justice system that convicts
the guilty and protects the innocent from wrongful conviction.
Section II. Definitions
When used in this Act:
	

A. “Forensic laboratory” means a facility, entity, or site that offers or performs forensic
analysis.

	

B. “Forensic analysis” means medical, chemical, toxicological, firearms, or other such
expert examination or test performed on physical evidence, including DNA evidence,
for the purpose of determining the connection of the evidence to a criminal act.

	

C. “Physical evidence” means any object, thing, or substance related to a criminal act.

	

D. “Blind external proficiency testing” means a test sample that is presented to a forensic laboratory for forensic testing through a second agency, and which appears to the
analysts to involve routine evidence submitted for forensic testing.	

	

E. “Commission” refers to the Forensic Science Oversight Commission, as outlined in
section III of this Act.

Section III. Forensic Science Oversight Commission
	

A. There is hereby created the Forensic Science Oversight Commission.
The Commission shall be composed of the following eleven members:

		

1. The Chief Justice of the Supreme Court shall appoint one member who is a
judge.

		

2. The Governor shall appoint four members as follows:

			

a. One member who is a prosecutor with expertise in forensic evidence,
selected from a list of ten prosecutors provided by the State District
Attorneys Association;

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b. One member who is a criminal defense lawyer with expertise in
forensic evidence, selected from a list of ten defense lawyers provided
by the State Criminal Defense Lawyers Association;

			

c. One member who is a forensic scientist who specializes in DNA
analysis;

			

d. One member who is a forensic scientist who specializes in a forensic
discipline other than DNA analysis;

		

3. The Governor shall appoint six members selected from lists provided by the
Chancellor of the State University System (three nominees for each):

			

a. One member who is a law professor with expertise in forensic
evidence;

			

b. One member who is a faculty member of a medical school and
specializes in clinical laboratory medicine;

			

c. One member who is an academic research scientist with a PhD in
biology or some sub-discipline thereof;

			

d. One member who is an academic research scientist with a PhD in
chemistry or some sub-discipline thereof;

			

e. One research scientist with a PhD engaged in pharmaceutical sciences;

			

f. One member who is an academic social scientist with expertise in
experimental psychology.

	

B. Each member shall serve a four-year term and may be reappointed for additional
terms. The governor shall designate a member to serve as presiding officer.

	

C. The commission shall meet at least four times each year and may establish its own
rules and procedures concerning the conduct of its meeting and other affairs not
inconsistent with law.

	

D. No member of the commission on forensic science shall be disqualified from holding any public office or employment, nor shall he or she forfeit any such office or
employment, by reason of his appointment hereunder.

	

E. Members of the commission shall receive no compensation for their services but shall
be allowed their actual and necessary expenses incurred in the performance of their
functions hereunder.

	

F. Hereafter in this Act the Commission on Forensic Science will be referred to as
“the Commission.”

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G. The Chair of the Commission shall, with the approval of a majority of the
Commission’s members, hire an Executive Director of the Commission. The
Executive Director shall employ, in accordance with the provisions of the [state]
Personnel Code, administrative, professional, clerical, and other personnel as may be
required to perform the duties of the Commission. The Executive Director
may organize the staff of the Commission as he or she may deem appropriate.
The Executive director may, with the approval of the Commission, hire independent
contractors as necessary to carry out the Commission’s duties, including, but not
limited to, investigators, auditors, and quality assurance experts.

Section IV. Tracking and Investigating Allegations of Misconduct, Negligence, and Error
	

A. The Commission shall develop and promulgate a system of reporting instances or
allegations of forensic misconduct, negligence, or other serious error regarding analysis of forensic evidence in the state, and require employees of all forensic laboratories and other entities performing or offering forensic analysis in the state to report
instances or allegations of misconduct, negligence, or other serious forensic error to
the Commission. The Commission may consider complaints from any party.

	

B. The Commission shall investigate in a timely manner any allegations of forensic negligence, misconduct, or other serious forensic error that could affect the integrity of
results of forensic analysis in the state.

	

C. The commission shall prepare a written report regarding any investigation it undertakes under this section detailing the allegations and the Commission’s findings
regarding whether negligence, misconduct, or other serious forensic error occurred,
and any corrective action required of the laboratory or other entity conducting forensic analysis. All such reports shall be provided to the Governor and the Attorney
General, and made available to the public.

	

D. An investigation may include, where appropriate, retrospective reexaminations of
other forensic analyses conducted by the laboratory or other entity that may involve
the same kind of negligence, misconduct, or serious forensic error, and follow-up
evaluations of the laboratory or entity to review implementation of corrective action.

Section V. Adoption of a Forensic Science Ethical Code
	

A. The Commission shall create an ethical code for the conduct of forensic science
in [state]. The Commission shall consult with relevant experts in the creation of
this code.

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B. The code will be created pursuant to the goals of communicating the seriousness of
the work of forensics laboratories to employees of these laboratories and of making
clear the role of a forensic analyst as a neutral, objective scientist, and not as an actor
on the side of the prosecution or the police.

	

C. The code shall be distributed to each employee of each laboratory or entity conducting or offering forensic testing, examinations, or analysis in [state].

Section VI. Standards and Regulation
	

A. The Commission shall, by rule, adopt operational, training, administrative, and scientific standards and regulations for forensic laboratories and other entities performing
or offering forensic analysis in the state.

	

B. The standards and regulations shall be designed to increase and maintain the objectivity, reliability, efficiency, and accuracy of forensic laboratories, and ensure that
forensic analyses are performed in accordance with the highest scientific standards
practicable.

	

C. In determining standards and requirements pursuant to this section, the Commission
shall evaluate other existing standards and systems of accreditation for forensic
laboratories. The commission may decide to incorporate accreditation through
an approved private system to satisfy some requirements it adopts; however, the
Commission shall not be bound by existing private accreditation systems, and shall
supplement them as necessary with its own programs to meet the Commission’s standards consistent with this Act.

	

D. The standards and regulations that shall be adopted and enforced by the Commission
shall, at a minimum, require:

		

1. Minimum qualifications for forensic laboratory directors, analysts, examiners,
technicians, and other such personnel as the Commission may determine to
be necessary and appropriate;

		

2. Adoption and enforcement of certification and continuing education requirements for all forensic analysts, examiners, and technicians for each of the
forensic sub-disciplines;

		

3. Satisfactory training programs for employees at all levels, including training
on ethics and possible sources of error, and the role of forensics in causing and
exposing wrongful convictions in the past;

		

4. Comprehensive quality control and quality assurance protocols, a method
validation procedure, and a corrective action and remedial program;
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5. Routine internal and external proficiency testing of all laboratory personnel
involved in forensic analysis, which shall include blind external proficiency
testing requirements, and definition of satisfactory performance on such
testing;

		

6. Internal disciplinary procedures for violations of the Commission’s ethical
code, created pursuant to this Act;

		

7. Internal structures and protocols to regulate the flow of information between
forensic examiners and persons requesting forensic services, in order to minimize the potential effects of extraneous information and influences that may
contribute to inadvertent bias in the processing or interpretation of evidence,
or in the presentation of testimony;

		

8. Protocols for providing appropriate and equitable access to law enforcement,
prosecutors, and defense counsel not inconsistent with paragraph D7 above,
and keeping appropriate records of such contacts;

		

9. Protocols for documenting forensic tests, examinations, and analyses, and for
archiving reports, bench notes, and other important documentation, and for
appropriate disclosure of such information.

Section VII. Licensure
	

A. The Commission shall by rule establish a licensing program for laboratories or other
entities performing or offering forensic laboratory tests, examinations, or analysis in
the state.

	

B. To qualify for a license, an applicant shall provide evidence to satisfy the Commission
that the laboratory, facility, or entity and its personnel meet the standards and
requirements of this Act and all regulations adopted under this Act.

	

C. To assure compliance with the standards and requirements under this Act, and to
make licensure determinations, the Commission shall conduct:

		

1. An inspection of each forensic laboratory for which a license to operate is
sought; and

		
	

2. An inspection of each forensic laboratory for which a license has been issued.

D. To assure compliance with the standards and requirements under this Act, the commission may conduct:

		

1. A compliance investigation; and

		

2. A validation survey of an approved forensic laboratory.

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E. Laboratories or other entities licensed or seeking a license under this Act shall permit
the Forensic Science Commissioners and their designees to conduct inspections of
facilities and records at any time.

	

F. The Commission shall grant licenses to laboratories and other entities performing or
offering forensic analysis in the state that will designate the categories of tests, examinations, or analyses that may be offered or performed by the laboratory.

	

G. Effective two years from passage of this Act, an entity shall hold a license issued by
the Commission before that entity may offer or perform forensic laboratory tests,
examinations, or analysis in the state. A forensic laboratory may not operate in a
manner not designated by its license.

	

H. To qualify for a license, forensic laboratories must be fully independent of state and
local police and prosecutorial agencies. The Commission may grant limited, temporary waivers of this requirement if a unit of local government that currently provides
forensic services under the auspices of a law enforcement or prosecutorial agency
provides a plan acceptable to the Commission for transitioning the forensic services
to an agency separate from law enforcement or prosecutorial agencies.

	

I. The approval of a forensic laboratory may be revoked, suspended, or otherwise limited,
upon a determination by the Commission that the laboratory or one or more persons
in its employ:

		

1. Is guilty of misrepresentation in obtaining a forensic laboratory accreditation;

		

2. Rendered a report on laboratory work actually performed in another forensic
laboratory without disclosing the fact that the examination or procedure was
performed by such other forensic laboratory;

		

3. Showed a pattern of excessive errors in the performance of forensic laboratory
examination procedures;

		

4. Failed to file any report required to be submitted pursuant to this Act or the
rules and regulations promulgated pursuant thereto; or

		

5. Violated in a material respect any provision of this Act or the rules and regulations promulgated pursuant thereto.

	

J. No forensic laboratory approval shall be revoked, suspended, or otherwise limited
without a hearing. The Commission shall serve written notice of the alleged violation, together with written notice of the time and place of the hearing, which notice
shall be mailed by certified mail to the holder of the forensic laboratory approval at
the address of such holder at least twenty-one days prior to the date fixed for such
hearing. An approved laboratory may file a written answer to the charges with the
Commission, not less than five days prior to the hearing.
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Section VIII. Applicability
This Act shall not apply to a laboratory operated by any agency of the federal government, or to
any forensic test performed by any such federal laboratory.
Section IX. Availability to Public
	

A. Forensic laboratory deficiency statements, plans of correction, laboratory audits, and
accreditation reports are public documents.

	

B. A forensic laboratory shall make discrepancy logs, contamination records, and test
results available to the public within thirty days of a written request.

Section X. Independence of State Forensic Laboratories
	

A. There is hereby created the Department of Forensic Services, an independent agency
of state government.

	

B. The Forensic Science Oversight Commission shall by a majority vote appoint the
Director of the [State] Department of Forensic Services.

	

C. The Director shall be a scientist with a PhD in life or physical sciences, or be a
medical doctor, and have substantial experience in academic, government, industrial, research, or clinical laboratory operations. The Director shall not have been
employed previously by a law enforcement, prosecutorial, or public defender agency.

	

D. The Director shall serve at the pleasure of the Forensic Science Commission. The
Director shall hire such personnel as are necessary to carry out the operations of the
Department with the approval of the Forensic Science Commission.

	

E. The Department of Forensic Services shall operate forensic laboratories and conduct forensic analyses of evidence for law enforcement agencies in [state], and, upon
request, for defense counsel, in connection with the investigation and prosecution of
crimes in [state].

	

F. Notwithstanding any other law to the contrary, all functions related to forensic laboratory testing by other agencies of state government shall instead be performed by the
Department of Forensic Services, and the Director shall enter into a cooperative agreement with any department of state government currently providing forensic laboratory
services to transfer appropriate assets within one year of the effective date of this Act.

	

G. Nothing in this section shall be construed to limit a criminal defendant’s due process
rights to engage independent forensic experts not employed by or under contract
with the Department of Forensic Services.

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Literature
Cooley, Craig M. “Reforming the Forensic
Community to Avert the Ultimate Injustice.”
Stanford Law and Policy Review 15 (2004): 381-446.

SUGGESTED READINGS
The following materials are suggested reading for
individuals interested in enhancing the reliability of
forensic science.

DiFonzo, J. Herbie. “The Crimes of Crime Labs.”
Hofstra Law Review 34 (Fall 2005): 1-11.

Cooley, Craig M. “Reforming the Forensic
Community to Avert the Ultimate Injustice.”
Stanford Law and Policy Review 15 (2004): 381-446.

Epstein, Robert. “Fingerprints Meet Daubert:
The Myth of Fingerprint ‘Science’ is Revealed.”
Southern California Law Review 75 (March 2002):
605-657.

DiFonzo, J. Herbie. “The Crimes of Crime Labs.”
Hofstra Law Review 34 (Fall 2005): 1-11.

Garrett, Brandon L. “Judging Innocence.” Columbia
Law Review 108 (January 2008): 55-142.

Risinger, D. Michael, Michael J. Saks, William
C. Thompson, and Robert Rosenthal. “The
Daubert/Kumho Implications of Observer Effects
in Forensic Science.” California Law Review 90
(January 2002): 1-56.

Giannelli, Paul C. “The Abuse of Scientific Evidence
in Criminal Cases: The Need for Independent
Crime Laboratories.” Virginia Journal of Social
Policy and the Law 4 (Winter 1997): 539-478.

SELECTED BIBLIOGRAPHY
The following listing includes some of the key
source material used in developing the content of this
policy review. While by no means an exhaustive list of
the sources consulted, it is intended as a convenience
for those wishing to engage in further study of the
topic of forensic science.

Giannelli, Paul C. “Regulating Crime Laboratories:
The Impact of DNA Evidence.” Journal of Law
and Policy 15 (2007): 59-92.
Giannelli, Paul C. “Wrongful Convictions and
Forensic Science: The Need to Regulate Crime
Labs.” North Carolina Law Review 86 (December
2007): 163-235.

1. Journals and Law Reviews

Hansen, Mark. “The Uncertain Science of Evidence:
Some Testimony from Expert Witnesses in
Criminal Trials is Having Trouble Standing up to
Tougher Scrutiny from the Courts.” ABA Journal
91 (July 2005): 48-53.

Benedict, Nathan. “Fingerprints and the Daubert
Standard for Admission of Scientific Evidence:
Why Fingerprints Fail and a Proposed Remedy.”
Arizona Law Review 46 (Fall 2004): 519-549.

Jonakait, Randolph N. “Forensic Science: The Need
for Regulation.” Harvard Journal of Law and
Technology 4 (Spring 1991): 109-91.

Bieber, Frederick R., Craig M. Cooley, Jeffrey J.
Pokorak, and Carl M. Selavka. “Panel Three—
The Role of Scientific Evidence.” Indiana Law
Journal 80 (Winter 2005): 69-84.

Koerner, Brendan I. “Under the Microscope.”
Legal Affairs (July/August 2002): 35-38.

Cole, Simon A. “Grandfathering Evidence:
Fingerprint Admissibility Rulings from Jennings
to Llera Plaza and Back Again.” American Criminal
Law Review 41 (Summer 2004): 1189-1276.

Moenssens, Andre A. “Novel Scientific Evidence
in Criminal Cases: Some Words of Caution.”
Journal of Criminal Law and Criminology 84
(Spring 1993): 1-21.

Cole, Simon A. “The Prevalence and Potential
Causes of Wrongful Conviction by Fingerprint
Evidence.” Golden Gate University Law Review 37
(Fall 2006): 39-105.

Otero, Ana M. “Tinkering with the Machinery
of Death in Texas: A Chronicle of Unbridled
Injustice and Abuse.” George Mason University Civil
Rights Law Journal 16 (Spring 2006): 183-269.

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Risinger, D. Michael, Michael J. Saks, William
C. Thompson, and Robert Rosenthal. “The
Daubert/Kumho Implications of Observer Effects
in Forensic Science.” California Law Review 90
(January 2002): 1-56.

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The Constitution Project. Mandatory Justice: The
Death Penalty Revisited. The Constitution Project,
2001.
Illinois Commission on Capital Punishment. Report
of the Former Governor’s Commission on Capital
Punishment. Illinois Commission on Capital
Punishment, 2002. http://www.idoc.state.il.us/
ccp/index.html (accessed June 23, 2008).

Saks, Michael J. “Banishing Ipse Dixit: The Impact
of Kumho Tire on Forensic Identification
Science.” Washington and Lee Law Review 57
(2000): 879-900.

Oklahoma District Attorneys Council. Oklahoma’s
State Plan for the Improvement of Forensic Science
and Medical Examiner Services. http://www.ok.gov/
dac/documents/NFSIA State Plan.pdf (accessed
June 23, 2008).

Saks, Michael J. and Jonathan J. Koehler. “The
Coming Paradigm Shift in Forensic Identification
Science.” Science no. 309 (August 2005): 892-95.
Scheck, Barry C. “The Need for Independent
Forensic Audits Now.” Champion 28 (September/
October 2004): 4.

Texas House of Representatives, House Research
Organization. Should Texas Do More to Regulate
Crime Labs? House Research Organization, 2004.
http://www.hro.house.state.tx.us/focus/crime_
lab79-2.pdf (accessed June 23, 2008).

Thompson, William C. “Tarnish on the ‘Gold
Standard:’ Understanding Recent Problems in
Forensic DNA Testing.” Champion 30 (January/
February 2006): 10-15.

U.S. Department of Justice, National Institute of
Justice. Status and Needs of Forensic Science Service
Providers: A Report to Congress. Washington, DC:
GPO, 2006.

Thompson, William C. “Turning a Blind Eye
to Misleading Scientific Testimony: Failure of
Procedural Safeguards in a Capital Case.”
Bepress Legal Series Working Paper 1781
(2006). http://law.bepress.com/expresso/eps/1781
(accessed June 23, 2008).

U.S. Department of Justice, Office of the Inspector
General. The FBI DNA Laboratory: A Review of
Protocol and Practice Vulnerabilities. Washington,
DC: GPO, 2004.

2. Commission and Association Reports

3. Statistical Studies

American Bar Association. Achieving Justice: Freeing
the Innocent, Convicting the Guilty: Report of the
ABA Criminal Justice Section’s Ad Hoc Innocence
Committee to Ensure the Integrity of the Criminal
Process. American Bar Association, 2006.

U.S. Department of Justice. “Census of Publicly
Funded Forensic Laboratories.” Bureau of Justice
Statistics Bulletin. Washington, DC: GPO,
February 2005.

American Bar Association. Evaluating Fairness
and Accuracy in State Death Penalty Systems: The
Georgia Death Penalty Assessment Report. American
Bar Association, 2006.

U.S. Department of Justice. “50 Largest Crime
Labs, 2002.” Bureau of Justice Statistics Fact Sheet.
Washington, DC: GPO, September 2004.
U.S. Department of Justice. “Survey of DNA Crime
Laboratories, 2001.” Bureau of Justice Statistics
Bulletin. Washington, DC: GPO, January 2002.

California Commission on the Fair Administration
of Justice. Report and Recommendations Regarding
Forensic Science Evidence. California Commission
on the Fair Administration of Justice, 2007.
http://www.ccfaj.org/news.html (accessed June 23,
2008).

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Endnotes
1

28 Michael Bromwich, Final Report of the Independent
Investigator for the Houston Police Department Crime
Laboratory and Property Room (2007).
29 Id. at 114.
30 One recent case, reported on October 3, 2007, involves inmate Ronald
Taylor. An Houston Police Department analyst had testified at his original
trial that no semen was present at the crime scene. Recent tests, however,
have shown that testimony to be false. The semen at the scene matches
the DNA of a convicted felon already in jail. Mr. Taylor was exonerated in
January of 2008.
31 Risinger, Saks, Thompson, and Rosenthal, supra note 23, at 9 and 51.
32 Dror and Charlton, supra note 24.
33 Id.
34 This recommendation comes largely from Risinger, Saks, Thompson and
Rosenthal, supra note 23 at 46.
35 Giannelli, supra note 3, at 469-71. Virginia and Arkansas are notable
exceptions.
36 See Andre A. Moenssens, “Novel Scientific Evidence in Criminal Cases:
Some Words of Caution,” 84 J. Crim. L. & Criminology 1 (1993)
(discussing pro-police and pro-prosecution biases); Risinger, Saks,
Thompson, and Rosenthal, supra note 23, at 18-19 (discussing “role”
effects and inadvertent bias).
37 See generally Risinger, Saks, Thompson, and Rosenthal, supra note 23.
38 Illinois Governor’s Commission on Capital Punishment, Report
of Governor’s Commission on Capital Punishment 53 (2002).
39 Belinda Luscombe, When the Evidence Lies, Time, May 21, 2000, at 38.
40 Md. Code Ann., Health-Gen § 17-2A-02 (West, Westlaw through
all chapters of the 2008 Regular Session of the General Assembly effective through June 1, 2008). Crime laboratories in Maryland are operated
by law enforcement, but are regulated and licensed by the Secretary of the
Department of Health and Mental Hygiene. Starting in 2012, Maryland
will require all labs to have a license to perform forensic analysis. Md. Code
Ann., Health-Gen § 17-2A-04 (West, Westlaw through all chapters of
the 2008 Regular Session of the General Assembly effective through June 1,
2008).
41 Ark. Code Ann. § 12-12-304 (West, Westlaw through end of the 2008
First Ex.Sess., including changes made by the Arkansas Code Revision
Commission received through March 26, 2008).
42 Va. Code Ann. § 9.1-1100 (West, Westlaw through End of 2007 Reg.
Sess. and includes 2008 Reg. Sess. c. 1, 2, 8, 21, 49, 51, 56, 57 and 72).
43 Office of the Inspector General, U.S. Department of Justice, The
Fbi Laboratory: An Investigation into Laboratory Practices and
Alleged Misconduct in Explosives-Related and Other Cases (1997).
44 The American Bar Association endorses such standards in Achieving Justice:
Freeing the Innocent, Convicting the Guilty, 2006 A.B.A. Sec. Crim. Just. L.
Rep. 56. The recommendations in this policy review in this area are largely
adopted from the ABA.
45 Randolph N. Jonakait, Forensic Science: The Need for Regulation, 4 Harv.
J.Law & Tec 130 (Spring 1991).
46 Moenssens, supra note 36, at 6.
47 Id.
48 National Institute of Justice, U.S. Department of Justice, Status
and Needs of Forensic Science Service Providers: A Report to
Congress 19 (2006).
49 Cooley, supra note 4, at 418-21.
50 National Institute of Justice, supra note 48, at 12.
51 Michael J. Saks and Jonathan J. Koehler, The Coming Paradigm Shift in
Forensic Identification Science, Science, Aug. 5, 2005, at 892-95.
52 Bromwich, supra note 28.
53 Paul Coverdell National Forensic Sciences Improvement Act of 2000, Pub.
L. No. 106-561, 114 Stat. 2787 (amended 2002).
54 See Jane Campbell Moriarty and Michael J. Saks, Forensic Science: Grand
Goals, Tragic Flaws, and Judicial Gatekeeping, 44 No. 4 Judges Journal 16
(Fall 2005).
55 Moenssens, supra note 36, at 7.

Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 60 (2008).
Garrett, supra note 1, at 76.
3 Paul C. Giannelli, The Abuse of Scientific Evidence in Criminal Cases: The Need
for Independent Crime Laboratories, 4 Va. J. Soc. Pol’y & L. 439, 442 (1997).
4 Craig M. Cooley, Reforming the Forensic Community to Avert the Ultimate
Injustice, 15 Stan. L. & Pol’y Rev. 381, 401 (2004).
5 Id. at 402.
6 Garrett, supra note 1, at 60.
7 Matter of W.Va. State Police Crime Lab, 438 S.E.2d 501, 514-6 (1993).
8 Simon A. Cole, It’s the Testimony, Stupid, National Law Journal, Dec. 10,
2007.
9 John Solomon, FBI’s Forensic Test Full of Holes, Wash. Post, Nov. 18, 2007.
10 Id.
11 Cole, supra note 8.
12 John Solomon, Silent Injustice Question and Answer Session, Wash. Post,
Nov. 19, 2007, http://www.washingtonpost.com/wp-dyn/content/discussion/
2007/11/15/DI2007111501575.html.
13 Id.
14 Randolph N. Jonakait, Forensic Science: The Need for Regulation, 4 Harv. J.
Law & Tec 109 (Spring 1991) (includes information on proficiency tests,
and the disturbing performance of laboratories on these tests), citing L.C.
LaMotte, Jr, G.O. Guerrant, D.S. Lewis, C.T. Hall, Comparison of Laboratory
Performance with Blind and Mail-Distributed Proficiency Testing Samples, 92 Pub.
Health Rep. 554 (1977).
15 Id.
16 Fred Zain falsified test results in over one hundred cases throughout the
1980s. Despite serious questions about his work, he was allowed to continue
working, and was even hired at a new position in Texas, until he was finally
indicted in 1994. He went to trial, but was never convicted. See Giannelli,
supra note 3, at 443-9.
17 Connie Schultz, Another Slap in the Face of Justice, Plain Dealer, Sep. 2,
2004. See also The Innocence Project, DNA Proves a Notorious Analyst Engaged
in Fraud and Misconduct Leading to Two More Wrongful Convictions, Innocence
Project Says,” http://www.innocenceproject.org/Content/212.php.
18 See generally Cooley, supra note 4, 395-416 (discussing the relationship
of laboratory misconduct to wrongful convictions); Id. at 418-433 (discussing the need for improvements to forensic science). See also Risinger, Saks,
Thompson, and Rosenthal, infra note 23, for discussion on the need for
internal regulation for forensics laboratories.
19 Justice for All Act of 2004, Pub. L. No. 108-405 § 311, 118 Stat. 2260.
(2004).
20 Nebraska and Oklahoma all require ASCLD/LAB accreditation by statute.
Many other states require ASCLD/LAB accreditation in practice or by rule.
21 See American Society of Crime Laboratory Directors Laboratory
Accreditation Board, 2008 Manual (2008). While ASCLD/LAB has instituted
optional blind proficiency testing, even their optional standard is quite loose.
It demands only that a laboratory perform one test annually for at least one
half of the forensic disciplines in which the laboratory provides services.
22 Studies of regulated and unregulated clinical laboratories are instructive on
this issue. Studies have shown that regulated clinical labs perform work of a
significantly higher quality than do their unregulated counterparts. See H.R.
Rep. No. 100-899, at 13-4 (1988), reprinted in 1988 U.S.C.C.A.N. 3828,
3833-5. See also Jonakait, infra note 45, at 172-78.
23 D. Michael Risinger, Michael J. Saks, William C. Thompson, and Robert
Rosenthal, The Daubert/Kumho Implications of Observer Effects in Forensic
Science, 90 Cal. L. Rev. 1, 6 (2002).
24 See Itol E. Dror and David Charlton, Why Experts Make Errors, 56
Journal of Forensic Identification 600 (2006). This finding is especially
troubling in light of the fact that these analysts had previously identified the
fingerprints accurately in situations without biasing contextual information.
See the box on page 6 for more information.
25 Risinger, Saks, Thompson, and Rosenthal, supra note 23, at 29.
26 Id.
27 See Discovery Channel, FBI Files: The Predator, broadcast Nov. 29, 2000,
cited in id. at 36.
2

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56 Joseph Peterson, John Ryan, Pauline Houlden, and Steven Mahajlovic,
The Uses and Effects of Forensic Science in the Adjudication of Felony Cases, J.
Forensic Sci. 1730, 1748 (1987), cited in Jonakait, supra note 8, at 178.
57 Frye v. United States, 293 F. 1013 (App. D.C. 1923).
58 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 585 (1993), citing
Frye v. United States, 293 F. 1013 (App. D.C. 1923).
59 Daubert, 509 U.S. 579, 597 (1993).
60 Fed. R. Evid. 702.
61 David Faigman et al., Modern Scientific Evidence: Forensics
(West Group 2006 Student ed.).
62 Thomas Bohan, Scientific Evidence and Forensic Science Since Daubert: Maine
decides to sit out on the dance, 56 Me. L. Rev. 101, 112 (2004).
63 D. Michael Risinger, Navigating Expert Reliability: Are Criminal Standards of
Certainty Being Left on the Dock?, 64 Alb. L. Rev. 99, 100 (2000).
64 Id. at 143.
65 For Wisconsin, the admissibility test is spelled out in State v. Peters, 192
Wis. 2d 674, 534 N.W.2d 867 (Ct. App. 1995). For Virginia, the test is spelled
out in Spencer v. Com., 240 Va. 78, 393 S.E.2d 609 (1990). Georgia admissibility standards are governed by Ga. Code Ann. § 24–9–67. The admissibility
standard in Utah was originally explained in Phillips By and Through Utah State
Dept. of Social Services v. Jackson, 615 P.2d 1228 (Utah 1980).
66 Telephone Interview with Michael J. Saks, Professor of Law and
Psychology, Arizona State University (Jul. 20, 2007).
67 Bohan, supra note 62, at 115.
68 Kumho Tire Co. Ltd. v. Carmichael 526 U.S. 137 (1999).
69 Id. at 149.
70 Saks, supra note 66.
71 Moriarty and Saks, supra note 54, at 29.
72 Frontline, Ron Williamson, Frontline: Burden of Innocence, http://
www.pbs.org/wgbh/pages/frontline/shows/burden/profiles/williamson.html.
73 Williamson v. Reynolds, 904 F.Supp. 1529, 1553 (E.D. Okla. 1995).
74 Id. at 1554.
75 Knoll v. State, 12 N.W. 369 (Wis. 1882).
76 Id. at 371-72.
77 Williamson v. Reynolds, at 1556. Emphasis original.
78 Id.
79 Id. at 1560-61.
80 Id. at 1560.
81 Frontline, Dennis Fritz, Frontline: Burden of Innocence, http://www.pbs.
org/wgbh/pages/frontline/shows/burden/profiles/fritz.html.
82 Williamson v. Reynolds, at 1549.
83 People v. Wardell, 595 N.E.2d 1148, 1151-52 (Ill. App. Ct. 1992).
84 Id. at 1150-51.
85 Wardell v. City of Chicago, 75 F. Supp.2d 851, 854 n.1 (N.D. Ill. 1999).
86 Id. at 854.
87 Id.
88 Maurice Possley and Jeremy Manier, Police Crime Labs on the Hot Seat;
Evidence Favoring Defendant Omitted, Chic. Trib., Oct. 9, 1998.
89 Wardell v. City of Chicago, at 854 n.1. See also Possley & Manier, Police
Crime Lab on the Hot Seat.
90 Possley and Manier, supra note 88; Steve Mills and Maurice Possley, Report
Alleges Crime Lab Fraud; Scientist is Accused of Providing False Testimony, Chic.
Trib., Jan. 14, 2001.
91 Mills and Possley, supra note 90.
92 Id.
93 Maurice Possley and Steve Mills, Crime Lab Disorganized, Report Says;
Consultant Alleges Meager Supervision, Inadequate Training, Chic. Trib.,
Jan. 15, 2001.
94 Id.
95 Mills and Possley, supra note 90; Open Records Request from Illinois
Court of Claims, on file with the Center on Wrongful Convictions,
Northwestern University School of Law.
96 Frank Main, 2 Freed by DNA to Get $45,000 Each from City, Chicago SunTimes, Mar. 23, 2003.
97 Tammy Fonce-Olivas, Juror Says Scientist Influenced Moon Case Rape Verdict,
El Paso Times, Dec. 23, 2004.

EDUCATION
FUND

98

Tammy Fonce-Olivas, DPS Knew for 8 Years Conviction of Moon Dubious,
El Paso Times, May 7, 2005; Robert Moore, DPS Held Back 30 Pages of
Documents in Moon Case, El Paso Times, May 7, 2005.
99 Id.
100 Fonce-Olivas, supra note 98.
101 Id.
102 Tammy Fonce-Olivas, Evidence that Could Have Cleared Moon Wasn’t Sent,
El Paso Times, Feb. 27, 2005.
103 Id.
104 Id.
105 Fonce-Olivas, supra note 98; Tammy Fonce-Olivas, Moon Evidence Flaw
Spurs State Inquiry, El Paso Times, Feb. 22, 2005.
106 Tammy Fonce-Olivas, Moon Evidence Flaw Spurs State Inquiry, El Paso
Times, Feb. 22, 2005.
107 Steve McVicker, In Time for Christmas: Freedom After 16 Years; Lawyers for
a Man Wrongly Sent to Prison Say DNA Cleared Him in November 2002, The
Houston Chronicle, Dec. 21, 2004.
108 Md. Code Ann., Health-Gen § 17-2A (West, Westlaw through all
chapters of the 2008 Regular Session of the General Assembly effective
through June 1, 2008).
109 Mixed Results Mark Maryland’s Session’ End, The Daily Record, Apr. 13,
2007.
110 Md. Code Ann., Health-Gen § 17-2A-02 (West, Westlaw through
all chapters of the 2008 Regular Session of the General Assembly effective
through June 1, 2008); Md. Code. Ann., Health-Gen § 17-2A-03 (West,
Westlaw through all chapters of the 2008 Regular Session of the General
Assembly effective through June 1, 2008).
111 N.Y. Exec. Law § 995 (West, Westlaw through L.2008, chapters 1 to 91
and 93 to 96).
112 Telephone Interview with John Hicks, Director of the Office of Forensic
Services in New York State (Oct. 24, 2007).
113 N.Y. Exec. Law § 995-f (West, Westlaw through L.2008, chapters 1 to
91 and 93 to 96).
114 Rome Khanna, Texas May Find a Model in Crime Labs Elsewhere; Oversight
Panel Likely to Top List of Reforms as Legislators Learn from Other Systems, The
Houston Chronicle, Feb. 28, 2005.
115 Hicks, supra note 112.
116 Tex. Code Crim. Proc. Ann. art. 38.35(d)(1) (West, Westlaw through
the end of the 2007 Regular Session of the 80th Legislature).
117 Texas House of Representatives Research Organization, Should
Texas Do More to Regulate Crime Labs? (Dec. 20, 2004).
118 Tex. Code. Crim. Proc. Ann. art. 38.01 (West, Westlaw through the
end of the 2007 Regular Session of the 80th Legislature).
119 Garrett, supra note 1, at 76.
120 Id.
121 Richard Willing, Errors Prompt States to Watch Over Crime Labs, USA
Today, Mar. 31, 2006.
122 Ruth Teichroeb, They Sit in Prison—but Crime Lab Tests are Flawed,
Seattle Post-Intelligencer, Mar. 13, 2004.
123 Ruth Teichroeb, Call for a Review of State Crime Labs; Legislators Say They’ll
Take Up Issue in Coming Session, Seattle Post-Intelligencer, Sep. 14,
2004.
124 Khanna, supra note 114.
125 Id.
126 Steve Mills, Top Lab Repeatedly Botched DNA Tests; Audit: Errors Pass
Reviews in Virginia Death Row Case, Chic. Trib., May 8, 2005.
127 Steve Mills, Flynn McRoberts, and Maurice Possley, When Labs Falter,
Defendants Pay, Chic. Trib., Oct. 20, 2004.
128 Id.
129 Mark Hansen, The Uncertain Science of Evidence: Some Testimony From
Expert Witnesses in Criminal Trials is Having Trouble Standing Up to Tougher
Scrutiny From the Courts, 91 ABA Journal 48 (July 2005).
130 Portions of this model policy have been developed from N.Y. Exec. Law
§ 995 (West, Westlaw through L.2008, chapters 1 to 91) and from Md. Code
Ann., Health-Gen § 17-2A (West, Westlaw through all chapters of the 2008
Regular Session of the General Assembly effective through June 1, 2008).

27
w w w . T h e J u sti c e P r o j e c t. o r g

THE JUSTICE PROJECT

EDUCATION
FUND

Working to Increase Fairness and Accuracy in the Criminal Justice System

aBOUT ThE jUSTICE PROjECT
The.Justice.Project.is.comprised.of.two.
nonpartisan.organizations.dedicated.to.fighting.
injustice.and.to.creating.a.more.humane.and.
just.world..The.Justice.Project,.Inc.,.which.
lobbies.for.reform,.and.The.Justice.Project.
education.Fund,.which.increases.public.
awareness.of.needed.reforms,.work.together.
on.the.campaign.for.criminal.Justice.reform.to.
reaffirm.America’s.core.commitment.to.fairness.
and.accuracy.by.designing.and.implementing.
national.and.state-based.campaigns.to.advance.
reforms.that.address.significant.flaws.in.the.
American.criminal.justice.system,.with.particular.
focus.on.the.capital.punishment.system.

.
ThE jUSTICE PROjECT STaFF
John F. Terzano
President
Joyce A. McGee
executive.Director
Robert L. Schiffer
executive.Vice.President
Kirk Noble Bloodsworth
Program.officer
Jeff Miller
Director.of.communications
Jane Ryan
Director.of.Development
Edwin Colfax
Director.of.State.campaigns
Rosa Maldonado
Director.of.Finance.and.Administration
Daniel Aaron Weir
Director.of.National.campaigns
Michelle Strikowsky
communications.coordinator
Leah Lavin
Development.Associate
Joseph House
communications/Development.Associate
Lauren Brice
office.Manager
For.information.on.ordering.additional.
copies.of.this.policy.review,.contact.
The.Justice.Project.at.(202).638-5855.
or.info@thejusticeproject.org
1025.Vermont.Avenue,.Nw,.Third.Floor
washington,.Dc.20005
(202).638-5855.•.Fax.(202).638-6056
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©2008.The.Justice.Project.—.All.rights.reserved.

NaTIONaL agENda FOR REFORM
The Justice Project (TJP) has developed a national program of initiatives designed to address and affect the policies and procedures that perpetuate errors and contribute to
the conviction and incarceration of innocent people, especially within the death penalty system. As such, TJP advocates for 1) improvements in eyewitness identification procedures; 2) electronic recording of custodial interrogations;
3) higher standards for admitting snitch or accomplice
testimony at trial; 4) expanded discovery in criminal cases;
5) improvements in forensic testing procedures; 6) greater
access to post-conviction DNA testing; 7) proper standards
for the appointment and performance of counsel in capital
cases; and 8) safeguards against prosecutorial misconduct.
As part of its efforts to increase fairness and accuracy in
the criminal justice system, TJP is developing comprehensive
policy reviews on each of the eight reform initiatives outlined above. The policy reviews are designed to bridge the
education gap and provide the necessary information with
which policymakers, legal and law enforcement practitioners,
advocates, and other stakeholders learn about the best practices within these reform areas, the reasoning behind small
yet important changes in procedure, their practical effect,
and the costs and benefits of implementation. For more
information, please visit www.thejusticeproject.org.
aCKNOWLEdgEMENTS
The Justice Project would like express special thanks to
the following people for their contribution in developing
this policy review:
Edward T. Blake, ForensicScienceAssociates
Michael Bromwich, Fried,Frank,Harris,Shriver&JacobsonLLP
Paul C. Giannelli, CaseWesternReserveUniversity
SchoolofLaw
John Hicks, NewYorkStateDivisionofForensicServices
Roger Koppl, FairleighDickinsonUniversity
D. Michael Risinger, SetonHallLawSchool
Michael J. Saks, ArizonaStateUniversity,SandraDay
O’ConnorCollegeofLaw
William Thompson, UniversityofCalifornia-Irvine
SchoolofSocialEcology
The Justice Project’s former and current interns:
Megha Desai, Rebecca Estes, Stephanie Gladney, Liz
Gottmer, Dardi N. Harrison, Delia Herrin, Abby Hexter,
Alanna Holt, Eric James, Rosa Malley, Fiona McCarrick,
Sarah Nash, Kate Ory, David Seitzer, and Margaret Tucker.

“Law’s evolution is never done, 
and for every improvement made 
there is another reform that is overdue.”
— J ustice W illiam J. B rennan , J r .

The Justice Project is comprised of two
nonpartisan organizations dedicated to
fighting injustice and to creating a more
humane and just world. The Justice Project,
Inc., which lobbies for reform, and The
Justice Project Education Fund, which
increases public awareness of needed
reforms, work together on the Campaign for
Criminal Justice Reform to reaffirm America’s
core commitment to fairness and accuracy
by designing and implementing national and
state-based campaigns to advance reforms
that address significant flaws in the American
criminal justice system, with particular focus
on the capital punishment system.
This report is made possible primarily
through a grant from The Pew Charitable
Trusts to The Justice Project Education Fund.
The opinions expressed are those of the
author(s) and do not necessarily reflect .
the views of the Trusts. For additional
information, questions or comments, .
please contact our offices at (202) 638-5855,
or email info@thejusticeproject.org.

THE JUSTICE PROJECT

EDUCATION
FUND

1025 Vermont Avenue, NW • Third Floor • Washington, DC 20005.
(202) 638-5855 • Fax (202) 638-6056 • www.thejusticeproject.org

 

 

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