A national effort to shore up the credibility and narrow the claims of forensic science will re-launch under new management less than six months after Attorney General Jeff Sessions pulled the plug, the Department of Justice announced Monday.
The full scope of the changes made to the effort is yet unclear. But the agency will stand up a new Forensic Science Working Group (FSWG), led by career prosecutor Ted Hunt, to pick up work that paused in April when Sessions declined to renew the four-year-old National Commission on Forensic Science (NCFS).
The new body’s “first order of business will be to resume work on the Uniform Language for Testimony and Reports,” Deputy Attorney General Rod Rosenstein said in a speech Monday. Those linguistic standards will govern how prosecutors, judges, and expert witnesses characterize forensic evidence to juries.
The decommissioned NCFS was created in part to establish such courtroom standards, after waves of exonerations and a high-profile review of errors in hair and fiber testimony from federal criminal cases brought a shower of skepticism about the kinds of hard evidence Americans routinely see presented as absolute in fictional crime stories.
But while the new FSWG is taking up the signature programmatic work of its defunct predecessor as its “first order of business,” it’s unclear whether the new body will bring the same open-minded spirit to bear on troubling questions about how courtroom forensic testimony has failed to keep pace with actual forensic science.
“In the forensic sciences community, we’re in the same position as you: This sounds nice, but what exactly are the details?” American Academy of Forensic Science board president Betty Layne DesPortes said in an interview. “One thing we are waiting to see is how much this new DOJ effort will include collaboration with the broader scientific community.”
The new body is a welcome development, she said, especially given how disappointed the group was with Sessions’ decision to discontinue the previous effort this past April. But to revive this work properly, DesPortes said, the new group will have to keep the door open to the kind of doubt that is essential to science but anathema to prosecutions.
“One reason we supported [the defunct NCFS] so strongly, in addition to having a bunch of members on the commission, is it was a collaborative effort for forensic scientists and the broader scientific community,” she said. “One thing pointed out repeatedly is we need more research into the foundational bases for the forensic science disciplines,” a type of research DesPortes said is only meaningful if its designed and run by researchers from outside of the world of professional forensics experts working in overburdened criminal labs.
The NCFS charter expired in April, when Sessions declined to seek its renewal. In the four years that NCFS operated, it found several damning reasons to be skeptical of the claims forensic science claims in the courtroom. A DOJ review found that FBI experts had overstated the reach of hair and fiber forensics to juries in hundreds of cases over a matter of decades, including in more than two dozen death penalty cases.
The criminal justice system’s credulous treatment of so-called bite-mark forensics, long a cause for professional alarm among scientists, was finally officially questioned by a White House report last fall deeming bite marks, tread marks, particular subsets of DNA-sample evidence, and even bullet forensics to be unscientific. And reporters uncovered the continuing misuse of outdated arson investigation techniques that have already sent at least one innocent man to his death.
The language guidelines Rosenstein promised Monday should go a long way to rescue legitimate forensic science from the misuses exposed in both individual exonerations and the kinds of sweeping reviews of courtroom testimony that came to light in recent years. But deeper scientific questions will remain even after expert witnesses come to be informally governed by, for example, new prohibitions on presenting their work as infallible.
Sessions criticized skepticism about forensic evidence in the years before he became the country’s top cop. When the Senate Judiciary Committee held hearings in 2009 on the scientific community’s concerns about forensic testimony, the then-senator used his time to downplay the scientists’ concerns. His decision to discontinue the NCFS was widely interpreted as a stop sign for such skeptical reevaluation of the methods underlying physical evidence presented in courts. Monday’s announcement of a new working group might mean someone changed the attorney general’s mind on the subject — or it could be an extension of the former prosecutor’s long campaign to tamp down doubts about forensics.
The old commission included law enforcement actors but was led by scientists. The new body will be led by a career prosecutor.
Hunt has also spent his career working on forensic science validity questions from the law enforcement perspective. He has allies out in the broader science community whose skeptical assistance is so crucial to improving the evidence we use to solve crimes accurately. “Speaking for myself, I have worked with Ted Hunt on a variety of projects over the years including the NCFS and have confidence that he is very capable to do this new job,” John Butler, a leading forensics scientist at the Commerce Department’s National Institute of Standards and Technology (NIST), said in an email.
If the new group is to produce policies that actually improve how science is used in court, DesPortes said, then everyone has to avoid slipping into a zero-sum mindset where the needs of criminal casework and the realities of scientific limitations are in competition. “Forensic science does not have an advocacy side. It is a tool for prosecutors and for the defense,” she said. Ted Hunt “should be taking off his prosecutor’s hat” accordingly, she said.
The old commission also operated in public view. Its meetings were open and the materials generated in its work were public records. Sessions’ new working group has been structured to make such transparency optional rather than mandatory, according to DOJ spokesperson Lauren Ehrsam. Where the NCFS was convened by a 1972 law requiring such commissions to operate publicly, Ehrsam said, “The working group is an internal Department working group.”
But while the new internal group is free to deliberate outside the public eye, its initial task of standardizing courtroom language is so predicated upon its predecessor outfit’s work that DesPortes is not particularly concerned for now. “Since we expect DOJ to build on the standards issued by [the Department of Commerce group], a lot of the process will be transparent,” she said.
The language standards are only one piece of a bigger ongoing project. The details of how Sessions’ team will tackle that work — and to what degree the balance of conversations might shift from the scientist-heavy NCFS to the internal law-enforcement working group — remains unknown. The new group “is not a replacement for fulsome coordination and collaboration with external stakeholders,” Ehrsam said. “Such coordination will continue to occur outside the Working Group.”
The broader fate of many forensic techniques whose reputation with the public has outpaced their scientific rigor will therefore be left to some uncertain, informal process of consultation — and not necessarily one the public can easily keep tabs on.
“We look forward to open meetings where we know who is contributing to the discussion about forensic science,” DesPortes said.