NEW ORLEANS, LOUISIANA — “If you see something bad happening, you need to say something.”
This warning from fire debris analyst John Lentini kicked off the American Academy of Forensic Scientists’ annual meeting in New Orleans in mid-February. He wasn’t talking about terrorism, but of an existential crisis plaguing science in the service of law enforcement.
Forensic science disciplines used to convict countless people over the past century have been exposed as junk in recent years. Crime lab after crime lab has been shuttered after staffers were caught contaminating or fabricating results.
Reading about a new crime lab scandal every week, Lentini told the audience, “I’m just embarrassed.”
The problem is not isolated to a few bad apples cutting corners in small town labs. Tens of thousands of convictions have been thrown into doubt all over the country as crime lab abuses come to light. The FBI’s lab formally admitted that for decades, almost all of their examiners’ testimony identifying suspects based on hair analysis was wrongly skewed in favor of prosecutors.
But a far bigger challenge is that the science itself is suspect. In recent years, scientists have determined many common forensic science practices— such as fingerprinting, bitemarks, and firearm analysis—have no objective scientific basis whatsoever.
Yet many at the conference noted that courtrooms all over the country are still making decisions based on testimony by forensic scientists in white coats who swear they have objective, foolproof evidence of a person’s guilt.
President Donald Trump has demonstrated open contempt for science in other arenas, but it’s not yet clear how he will handle the future of forensic science. The Forensic Foundations Group, a crime lab consulting company and professional association, seems optimistic that Trump will turn down the heat on forensics.
“Time will tell what kind of president Donald Trump will be. Yet it’s highly doubtful that he will hand the keys of forensic science to legal activists as President Obama did,” Forensic Foundations founder John Collins Jr. wrote after Trump’s inauguration. “Nor will President Trump likely support the bureaucratic wheel-spinning that has counterproductively burdened the forensic sciences for nearly a decade. Despite millions of dollars spent on commissions, committees, standards structures, and a host of other initiatives, forensic science and its workforce have never been more maligned and disparaged than they are now.”
The Obama administration was bookended by two bombshells for the forensic science committee. In 2009, the National Academy of Science released a report that concluded many common forensic practices were being used in court “without any meaningful scientific validation.” The report confirmed that identifications based on pattern-matching—tooth marks on a body to a specific person’s teeth, or tread patterns to a particular shoe—were, at a minimum, prone to error and human bias.
In the final months of Obama’s presidency, the President’s Council of Advisors on Science and Technology (PCAST), a group of scientists, judges, and legal experts, released an exhaustive report that most forensic fields were lacking in scientific rigor, and many have no foundational validity, meaning a practice has not been empirically tested and there is no way to calculate an error rate.
“I know this is something a lot of people are quite upset about,” former AAFS president and law professor Carol Henderson said of the PCAST report at the conference’s opening plenary. But, she said, “if we don’t talk about the issue then it’s not going to get resolved.”
Trump’s Attorney General, Jeff Sessions, is a longtime fan of forensic science. As a senator, he helmed efforts to give more federal funding to forensic laboratories. But in recent years, he’s seemed reluctant to face the reality of the problems inherent to most disciplines.
This is something a lot of people are quite upset about.
Sessions made his skepticism known in a Senate Judiciary Committee hearing on the 2009 NAS report’s findings.
“Maybe we can…have some sort of better scientific basis for fingerprints and other analysis,” Sessions conceded. “But I don’t think we should suggest that those proven scientific principles that we’ve been using for decades are somehow uncertain and leaving prosecutors having to fend off challenges on the most basic issues in a trial.”
Later, he pushed further, asking one witness, “Do you believe that the report, perhaps trying to get our attention, used some pretty strong language suggesting the unreliability of what I have always understood to be proven scientific techniques?”
Sessions’ primary concern seemed to be that forensic analysis was not happening as quickly as prosecutors might prefer. “Could those delays actually result in a criminal being able to run loose in the community and commit more crimes?” he asked a prosecutor during the hearing.
Though Session’s predecessor, Loretta Lynch, declined to make any changes recommended by the PCAST report, the administration made several significant policy changes over Obama’s tenure that could be at risk under the new guard. For example, the DOJ has required federal prosecutors to use only accredited crime labs by 2020, and in September directed federal crime labs to eliminate the term “reasonable scientific certainty” from all reports and court testimony.
The phrase “reasonable scientific certainty” can carry enormous weight with juries accustomed to trusting in scientific objectivity. But it has no real scientific basis.
“It’s a phrase that’s meaningless really. It’s a legal crutch that’s being used by lawyers, usually,” said John Butler, vice-chair of the National Commission on Forensic Science.
The commission, established in 2013, is behind the bulk of the policy changes adopted by the DOJ. The group of scientists, prosecutors, defense attorneys, and law enforcement officers is led by the Deputy Attorney General and holds quarterly meetings to come up with recommendations to improve federal law enforcement’s use of forensic science. Their next meeting, in April, could be the last if the DOJ decides not to renew their charter.
“To me, the most valuable thing from the commission itself is having that conversation. We have four judges that are part of it, we have defense attorneys, prosecutors,” Butler said.
Forensic Foundation’s Collins has called for Trump to disband the commission.
“First, the National Commission on Forensic Science should be reformed or terminated without delay. The confusion it produces outweighs its value, with certain members of the commission seemingly intent on fomenting journalistic and judicial scorn rather than building public confidence,” he wrote.
Sessions has been quiet about his intentions for junk science since becoming Attorney General. But he’s made clear he wants to back off scrutiny of local law enforcement’s methods, arguing that rigorous federal oversight is undermining respect for police and “making their jobs more difficult.”
During the 2009 hearing, Sessions seemed wary of “micromanaging” forensic practices.
“Law enforcement overwhelmingly is a state and local responsibility. The federal government has a lot of problems, but one of them should not be to try to micromanage every burglary, robbery, or rape case in America,” he said.
However, Sessions suggested that the federal government could fund research and training for forensic scientists without overstepping these bounds.
“The first thing the federal government could do in a positive way is to spend the money to do the kind of research that can benefit every state and local law enforcement agency in America, to provide training, to do those kinds of things,” he said. “None of those result in a major bureaucracy, hopefully, nor a takeover of local responsibility.”
This could be a good sign for ongoing efforts. More research will be among the most important needs going forward, Butler said. Research is already underway in several federal agencies, led by the Commerce Department’s National Institute of Standards and Technology (NIST). NIST is working on the foundational validity question to try to come up with standards and error rates for some of these fields.
The crime labs themselves also need to establish a “culture of research,” Butler said. Most crime labs are populated by people with backgrounds in law enforcement, rather than science. Finding ways to inject more scientific rigor in their work might require more than just more funding. It requires a sea change from the way things have always been done.
“It’s not an easy thing to have change. There’s challenges there but a lot of them just take time,” Butler said. “You just have to celebrate the little victories sometimes and continue moving forward.”
UPDATE (4/12): On Monday, Attorney General Jeff Sessions announced he was disbanding the forensic science commission and suspending an Obama-era initiative to standardize rules for forensic testimony.
Aviva Shen, a former ThinkProgress editor, is now a freelance writer in New Orleans focused on criminal justice.