Daubert and forensic science: The pitfalls of law enforcement control of scientific research

University of Illinois Law Review

Volumn 2011, Issue 1, 2011, Pages 53-90

  Giannelli, Paul C ^a  

^a CASE WESTERN RESERVE UNIVERSITY   (United States)

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EID: 79952150921     PISSN: 02769948     EISSN: None     Source Type: Journal    
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References (447)

1. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2536 (2009). The Court also observed: "Serious deficiencies have been found in the forensic evidence used in criminal trials."
2. Id. at 2537.
3. NAT'L RESEARCH COUNCIL, NAT'L ACAD, OF SCIS., STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD (2009) [hereinafter NAS FORENSICS REPORT]. On November 22,2005, the Science, State, Justice, Commerce, and Related Agencies Appropriations Act of 2006 became law. Pub. L. No. 109-108,119 Stat. 2290 (2005).
4. The statute authorized "the National Academy of Sciences to conduct a study on forensic science, as described in the Senate report." H.R. REP. NO. 109-272, at 121 (2005)
5. (Conf. Rep.). The Senate Report states: While a great deal of analysis exists of the requirements in the discipline of DNA, there exists little to no analysis of the remaining needs of the community outside of the area of DNA. Therefore ... the Committee directs the Attorney General to provide [funds] to the National Academy of Sciences to create an independent Forensic Science Committee. This Committee shall include members of the forensics community representing operational crime laboratories, medical examiners, and coroners; legal experts; and other scientists as determined appropriate. S. REP. NO. 109-88, at 46 (2005). The Committee was appointed in the fall of 2006.
6. NAS FORENSICS REPORT, supra, at 2.
7. NAS FORENSICS REPORT, supra note 2, at 100.
8. Id. at 22 (emphasis added).
9. See People v. Jennings, 96 N.E. 1077, 1082 (Ill. 1911).
10. See generally 1 PAUL C. GIANNELLI & EDWARD J. IMWINKELRIED, JR., SCIENTIFIC EVIDENCE ch. 16 (4th ed. 2007) (discussing the scientific and legal issues associated with fingerprint identification).
11. See D. Michael Risinger et al., Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting Identification "Expertise," 137 U. PA. L. REV. 731,762 (1989). Handwriting comparison testimony was used extensively at the Lindbergh kidnapping trial in 1935.
12. Id. at 770.
13. See generally 2 GIANNELLI & IMWINKELRIED, supra note 5, ch. 21 (discussing the scientific and legal issues associated with questioned document examinations).
14. The Sacco and Vanzetti trial in 1921 was one of the earliest cases to rely on firearms identification evidence. See G. Louis JOUGHlN & EDMUND M. MORGAN, THE LEGACY OF SACCO AND VANZETTI 10, 14-16 (1948);
15. see also James E. Starrs, Once More unto the Breech: The Firearms Evidence in the Sacco and Vanzetti Case Revisited: Part II, 31 J. FORENSIC SCI. 1050 (1986).
16. See generally 1 GIANNELLI & IMWINKELRIED, supra note 5, ch. 14 (discussing the scientific and legal issues associated with firearms and tool mark identifications).
17. NAS FORENSICS REPORT, supra note 2, at 154.
18. Id. at 166.
19. Id. at 144.
20. Id. at 161.
21. Id. at 161.
22. The Report also states: "There is no science on the reproducibility of the different methods of [bite mark] analysis that lead to conclusions about the probability of a match."
23. Id. at 174.
24. Id. at 4 ("[I]mprecise or exaggerated expert testimony has sometimes contributed to the admission of erroneous or misleading evidence.").
25. Id. at 47 ("The insistence by some forensic practitioners that their disciplines employ methodologies that have perfect accuracy and produce no errors has hampered efforts to evaluate the usefulness of the forensic science disciplines.").
26. Id. at 104.
27. Id. at 143 ("Some in the latent print community [assert] that the method itself, if followed correctly... has a zero error rate. Clearly, this assertion is unrealistic....The method, and the performance of those who use it, are inextricably linked, and both involve multiple sources of error (e.g., errors in executing the process steps, as well as errors in human judgment).");
28. see also id. at 142.
29. Id. at 6.
30. Id. at 21-22 ("Forensic reports, and any courtroom testimony stemming from them, must include clear characterizations of the limitations of the analyses, including measures of uncertainty in reported results and associated estimated probabilities where possible.").
31. Id. at 19-20 (Recommendation 1). This agency would have an "administrator and an advisory board with expertise in research and education, the forensic science disciplines, physical and life sciences, forensic pathology, engineering, information technology, measurements and standards, testing and evaluation, law, national security, and public policy."
32. Id. at 19.
33. Id. at 20. Other recommendations include the accreditation of crime laboratories, funding research to determine the reliability of forensic evidence, and undertaking studies on the consequences of human observer bias.
34. Id. at 22-25.
35. Id. at 19-20.
36. Id. at 24 (Recommendation 4).
37. See generally Paul C. Giannelli, Independent Crime Laboratories: The Problem of Motivational and Cognitive Bias, 2010 UTAH L. REV. 247 (discussing the controversy surrounding the NAS recommendation for the removal of crime laboratories from the administrative control of law enforcement agencies).
38. NAS FORENSICS REPORT, supra note 2, at 17.
39. For example, there are other ways to provide defense expertise. See Paul C. Giannelli, Ake v. Oklahoma.- The Right to Expert Assistance in a Post-Daubert, Post-DNA World, 89 CORNELL L. REV. 1305, 1416-18 (2004).
40. NAS FORENSICS REPORT, supra note 2, at 18.
41. Id.
42. Id.
43. Id. at 16. The Report also stated: "Neither has the full confidence of the larger forensic science community. And because both are part of a prosecutorial department of the government, they could be subject to subtle contextual biases that should not be allowed to undercut the power of forensic science."
44. Id.
45. Id. at 18.
46. Perhaps, in drawing a blueprint for the future, the NAS Committee wanted to avoid unnecessary controversy. The Report's title emphasizes this point-"A Path Forward."
47. Sheila Jasanoff, Transparency in Public Science: Purposes, Reasons, Limits, 69 LAW & CONTEMP. PROBS. 21, 21 (2006).
48. See infra Part VI.
49. In a famous passage, the Supreme Court wrote: The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
50. Berger v. United States, 295 U.S. 78, 88 (1935).
51. These are not the only examples. Government-sponsored research into handwriting comparisons provides another illustration. Professor Michael Saks "has repeatedly requested the data from those [handwriting] studies for purposes of re-examination, and has repeatedly been denied, despite the fact that the youngest of the data sets is now well over three years old and hence well beyond the usual two-year presumptive period of exclusive use." D. Michael Risinger & Michael J. Saks, Rationality, Research and Leviathan: Law Enforcement-Sponsored Research and the Criminal Process, 2003 MICH. ST. L. REV. 1023, 1045 (citation omitted). These authors also write: "Various strategies appear to have been used to insure that any positive results will be exaggerated and any negative results will be glossed over."
52. Id. at 1042;
53. see also D. Michael Risinger et al., Brave New "Post-Daubert World"A Reply to Professor Moenssens, 29 SETON HALL L. REV. 405, 430-33 (1998) (discussing early refusals to share data from government-funded research on handwriting).
54. See infra notes 91-95 and accompanying text.
55. 509 U.S. 579 (1993).
56. The Court followed with General Electric Co. v. Joiner, 522 U.S. 136 (1997),
57. and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), to make up what is known as the Daubert trilogy. Daubert is one of the most important evidence cases ever decided.
58. See United States v. Alatorre, 222 F.3d 1098, 1100 (9th Cir. 2000) ("Daubert has become ubiquitous in federal trial courts.");
59. United States v. Barnette, 211 F.3d 803, 815 (4th Cir. 2000) ("In Daubert, the Supreme Court radically changed the standard for admissibility of scientific testimony.").
60. Michael J. Saks & Jonathan J. Koehler, Review, The Coming Paradigm Shift in Forensic Identification Science, 309 SCIENCE 892, 894-95 (2005).
61. See Michael Lynch, Review, God's Signature: DNA Profiling, the New Gold Standard in Forensic Science, 27 ENDEAVOUR 93 (2003);
62. Joseph L. Peterson & Anna S. Leggett, The Evolution of Forensic Science: Progress Amid the Pitfalls, 36 STETSON L. REV. 621,654 (2007) ("The scientific integrity and reliability of DNA testing have helped DNA replace fingerprinting and made DNA evidence the new 'gold standard' of forensic evidence.").
63. See David L. Faigman, Is Science Different for Lawyers?, 297 SCIENCE 339, 340 (2002) ("Daubert initiated a scientific revolution in the law.").
64. See generally William C. Thompson, Evaluating the Admissibility of New Genetic Identification Tests: Lessons from the "DNA War," 84 J. CRIM. L. & CRIMINOLOGY 22 (1993) (discussing the controversy surrounding DNA admissibility and lessons to be derived from the debate).
65. NAT'L RESEARCH COUNCIL, NAT'L ACAD, OF SCIS., DNA TECHNOLOGY IN FORENSIC SCIENCE 55 (1992) [hereinafter NAS DNA REPORT I]. A second report followed.
66. See NAT'L RESEARCH COUNCIL, NAT'L ACAD, OF SCIS., THE EVALUATION OF FORENSIC DNA EVIDENCE (1996) [hereinafter NAS DNA REPORT II]. The FBI requested and funded both reports. The second report also recommended proficiency testing.
67. Id. at 88 ("Recommendation 3.2: Laboratories should participate regularly in proficiency tests, and the results should be available for court proceedings.").
68. Michael J. Saks & Jonathan J. Koehler, What DNA " Fingerprinting" Can Teach the Law About the Rest of Forensic Science, 13 CARDOZO L. REV. 361, 372 (1991).
69. Professor Zabell would later note that "DNA identification has not only transformed and revolutionized forensic science, it has also created a new set of standards that have raised expectations for forensic science in general." Sandy L. Zabell, Fingerprint Evidence, 13 J.L. & POL'Y 143, 143 (2005).
70. Similarly, Professor Mnookin observed that "[o]ne consequence of DNA profiling and its admissibility into court is that it has opened the door to challenging fingerprinting." Jennifer L. Mnookin, Fingerprint Evidence in an Age of DNA Profiling, 67 BROOK. L. REV. 13, 43 (2001).
71. Eric S. Lander, Commentary, DNA Fingerprinting on Trial, 339 NATURE 501, 505 (1989). Even today, only a few states require accreditation.
72. See N.Y. EXEC LAW § 995b (McKinney 1996 & Supp. 2010) (requiring accreditation by the state Forensic Science Commission);
73. OKLA. STAT. ANN. tit. 74, § 150.37 (West Supp. 2009) (requiring accreditation by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) or the American Board of Forensic Toxicology);
74. TEX. CODE CRIM. PROC. ANN. art. 38.35 (West Supp. 2009) (requiring accreditation by the Department of Public Safety).
75. Texas also created a Forensic Science Commission. TEX. CODE CRIM. PROC. ANN. art 38.01 (West Supp. 2009).
76. See Samuel R. Gross et al., Exonerations in the United States: 1989 Through 2003,95 J. CRIM. L. & CRIMINOLOGY 523, 527-31, 542-46 (2005).
77. A study of 200 DNA exonerations found that expert testimony regarding forensic evidence (57%) was the second leading type of evidence (after eyewitness identifications, 79%) used in the wrongful conviction cases. The study indicated that forensic evidence was introduced in 113 trials with serological analysis of blood or semen the most common (79 cases), followed by expert comparison of hair evidence (43 cases), soil comparison (5 cases), DNA tests (3 cases), bite mark evidence (3 cases), fingerprint evidence (2 cases), dog scent identification (2 cases), spectrographic voice evidence (1 case), shoe prints (1 case), and fiber comparison (1 case).
78. Brandon L. Garrett, Judging Innocence, 108 COLUM. L, REV. 55, 76, 78, 81 (2008). This data does not necessarily mean that the forensic evidence was improperly used. For example, serological testing at the time of many of these convictions was simply not as discriminating as DNA profiling. Consequently, a person could be included using these serological tests but be excluded by DNA analysis. Some evidence, however, was clearly misused.
79. See Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 VA. L. REV. 1, 14-15 (2009) ("Of the 100 cases involving serology in which transcripts were located, 57 cases, or 57%, had invalid forensic science testimony. Of the 65 cases involving microscopic hair comparison in which transcripts were located, 25 cases, or 38%, had invalid forensic science testimony.");
80. Paul C. Giannelli, Wrongful Convictions and Forensic Science: The Need to Regulate Crime Labs, 86 N.C. L. REV. 163, 166-70 (2007).
81. See Paul C. Giannelli, Bite Mark Analysis, 43 CRIM. L. BULL. 930, 939-40 (2007).
82. See Paul C. Giannelli, Microscopic Hair Comparisons: A Cautionary Tale, 46 CRIM. L. BULL. 531 (2010) (discussing the DNA exoneration cases in which hair evidence was used to convict the innocent);
83. Clive A. Stafford Smith & Patrick D. Goodman, Forensic Hair Comparison Analysis: Nineteenth Century Science or Twentieth Century Snake Oil?, 27 COLUM. HUM. RTS. L. REV. 227, 231 (1996) ("If the purveyors of this dubious science cannot do a better job of validating hair analysis than they have done so far, forensic hair comparison analysis should be excluded altogether from criminal trials.").
84. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593 (1993) ("Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested.").
85. See CARL G. HEMPEL, PHILOSOPHY OF NATURAL SCIENCE 49 (1966) ("[T]he statements constituting a scientific explanation must be capable of empirical test.");
86. KARL R. POPPER, CONJECTURES AND REFUTATIONS: THE GROWTH OF SOENTIFIC KNOWLEDGE 37 (5th ed. 1989) ("[T]he criterion of the scientific status of a theory is its falsifiability, or refutability, or testability." (emphasis omitted)).
87. Daubert, 509 U.S. at 593 ("[Submission to the scrutiny of the scientific community is a component of 'good science,' in part because it increases the likelihood that substantive flaws in methodology will be detected.").
88. Id. at 594 ("Widespread acceptance can be an important factor in ruling particular evidence admissible, and 'a known technique which has been able to attract only minimal support within the community,' may properly be viewed with skepticism."
89. (quoting United States v. Downing, 753 F.2d 1224, 1238 (1985))).
90. Id.
91. 880 F. Supp. 1027 (S.D.N.Y. 1995).
92. Id. at 1038 (quoting FED. R. EVID 702). The court further stated that "while scientific principles may relate to aspects of handwriting analysis, they have little or nothing to do with the day-today tasks performed by [Forensic Document Examiners]....[T]his attenuated relationship does not transform the FDE into a scientist."
93. Id. at 1041.
94. Nevertheless, the court did not exclude handwriting comparison testimony. Instead, the court admitted the testimony as "technical" evidence. Id. at 1047.
95. This aspect of the opinion, however, was later undercut by Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999), in which the Supreme Court ruled that Daubert's reliability test applied to all expert testimony, thereby abolishing the distinction between "scientific" and "technical" expertise.
96. See, e.g., United States v. Hidalgo, 229 F. Supp. 2d 961, 967 (D. Ariz. 2002) ("Because the principle of uniqueness is without empirical support, we conclude that a document examiner will not be permitted to testify that the maker of a known document is the maker of the questioned document. Nor will a document examiner be able to testify as to identity in terms of probabilities.");
97. United States v. Lewis, 220 F. Supp. 2d 548, 554 (S.D.W. Va. 2002) ("[Expert's] bald assertion that the 'basic principle of handwriting identification has been proven time and time again through research in [his] field,' without more specific substance, is inadequate to demonstrate testability and error rate.");
98. United States v. Saelee, 162 F. Supp. 2d 1097, 1103 (D. Alaska 2001) ("There is little known about the error rates of forensic document examiners. The little testing that has been done raises serious questions about the reliability of methods currently in use. As to some tasks, there is a high rate of error and forensic document examiners may not be any better at analyzing handwriting than laypersons.").
99. See United States v. Oskowitz, 294 F. Supp. 2d 379, 384 (E.D.N.Y. 2003) ("Many other district courts have similarly permitted a handwriting expert to analyze a writing sample for the jury without permitting the expert to offer an opinion on the ultimate question of authorship.");
100. United States v. Rutherford, 104 F. Supp. 2d 1190, 1194 (D. Neb. 2000) ("[T]he Court concludes that FDE Rauscher's testimony meets the requirements of Rule 702 to the extent that he limits his testimony to identifying and explaining the similarities and dissimilarities between the known exemplars and the questioned documents. FDE Rauscher is precluded from rendering any ultimate conclusions on authorship of the questioned documents and is similarly precluded from testifying to the degree of confidence or certainty on which his opinions are based.");
101. United States v. Hines, 55 F. Supp. 2d 62, 70-71 (D. Mass. 1999) (admitting expert testimony concerning the general similarities and differences between a defendant's handwriting exemplar and a stick up note, but not the specific conclusion that the defendant was the author).
102. See, e.g., Lewis, 220 F. Supp. 2d at 554 (excluding testimony);
103. United States v. Fujii, 152 F. Supp. 2d 939, 940 (N.D. Ill. 2000) ("Handwriting analysis does not stand up well under the Daubert standards. Despite its long history of use and acceptance, validation studies supporting its reliability are few, and the few that exist have been criticized for methodological flaws.").
104. Hines, 55 F. Supp. 2d at 67 (discussing handwriting comparison);
105. see also Hidalgo, 229 F. Supp. 2d at 966 ("Courts are now confronting challenges to testimony [such as handwriting comparison], as here, whose admissibility had long been settled.").
106. (Llera Plaza I), 179 F. Supp. 2d 492 (E.D. Pa. 2002), vacated, motion granted on reconsideration, 188 F. Supp. 2d 549 (E.D. Pa. 2002).
107. See D.H. Kaye, The Nonscience of Fingerprinting: United States v. Llera-Plaza, 21 QUINNIPIACL. REV. 1073, 1073 (2003).
108. Llera Plaza I, 179 F. Supp. 2d at 518 ("But no expert witness for any party will be permitted to testify that, in the opinion of the witness, a particular latent print is-or is not-the print of a particular person.").
109. The first reported fingerprint case was decided in 1911. People v. Jennings, 96 N.E. 1077 (Ill. 1911). As Professor Mnookin has noted, however, "fingerprints were accepted as an evidentiary tool without a great deal of scrutiny or skepticism."
110. Mnookin, supra note 41, at 17. She elaborated: Even if no two people had identical sets of fingerprints, this did not establish that no two people could have a single identical print, much less an identical part of a print. These are necessarily matters of probability, but neither the court in Jennings nor subsequent judges ever required that fingerprint identification be placed on a secure statistical foundation.
111. Id. at 19.
112. United States v. Llera Plaza (Llera Plaza II), 188 F. Supp. 2d 549, 575-76 (E.D. Pa. 2002). Llera Plaza II was not a total victory for the prosecution. The rigor of proficiency testing was drawn into question.
113. See infra Part IV.A.
114. See, e.g., United States v. Mitchell, 365 F.3d 215, 246 (3d Cir. 2004);
115. United States v. Crisp, 324 F.3d 261, 268-70 (4th Cir. 2003);
116. United States v. Sullivan, 246 F. Supp. 2d 700, 704 (E.D. Ky. 2003).
117. In State v. Rose, No. K06-0545 (Md. 2007), a trial judge excluded fingerprint evidence.
118. See James E. Starrs, Will Wonders Never Cease? Fingerprinting Denied Its Day in Maryland Trial Court, SCI. SLEUTHING REV., Fall 2007, at 1 (discussing case).
119. E.g., Associated Press, Fingerprint Reliability Under Fire-As a Forensic Tool, It's Not Fo, Critics Argue in Federal Court, SUN-SENTINEL, Feb. 25, 2002, at 3A;
120. Andy Newman, Judge Who Ruled Out Matching Fingerprints Changes His Mind, N.Y. TIMES, Mar. 14, 2002, at A27;
121. Joseph A. Slobodzian, Court Ruling Blurs the Future for Fingerprint Experts: Linking of Print to Person Not Credible, Federal Judge Says, MILWAUKEE J. SENTINEL, Feb. 17, 2002, at A2;
122. Richard Willing, Judge Challenges Fingerprint Identification, USA TODAY, Jan. 10, 2002, at 3A.
123. E.g., Michael Specter, Do Fingerprints Lie? The Gold Standard of Forensic Evidencw Being Challenged, NEW YORKER, May 27, 2002, at 96, 102-05 (discussing Llera Plaza, including an interview with Judge Pollak).
124. See Faigman, supra note 38, at 339-40.
125. 60 Minutes: Fingerprints (CBS television broadcast Jan. 5, 2003).
126. E.g., Simon A. Cole, Grandfathering Evidence: Fingerprint Admissibility Rulings from Jennings to Llera Plaza and Back Again, 41 AM. CRIM. L. REV. 1189 (2004);
127. Robert Epstein, Fingerprints Meet Daubert: The Myth of Fingerprint "Science" Is Revealed, 75 S. CAL. L. REV. 605 (2002);
128. Nathan Benedict, Note, Fingerprints and the Daubert Standard for Admission of Scientific Evidence: Why Fings Fail and a Proposed Remedy, 46 ARIZ. L. REV. 519 (2004);
129. Tara Marie La Morte, Comment, Sleeping Gatekeepers: United States v. Liera Plaza and the Unreliability of Forensic Fingerg Evidence Under Daubert, 14 ALB. L.J. Sa. & TECH. 171 (2003);
130. Kristin Romandetti, Note, Recognizing and Responding to a Problem with the Admissibility of Fingerprint Evidence Under Daubert, 45 JURIMETRICS 41 (2004);
131. Jessica M. Sombat, Note, Latent Justice: Daubert's Impact on the Evaluation of Fingerprint Identification Testimony, 70 FORDHAM L. REV. 2819 (2002).
132. E.g., Jennifer L. Mnookin, Fingerprints: Not a Gold Standard, ISSUES SCI. & TECH., Fall 2003, at 47, 47 ("Judge Pollak's first opinion [restricting latent fingerprint individualization testimony] was the better one.");
133. Recent Case, United States v. Haward, 260 F.3d 597 (7th Cir. 2001),
134. 115 HARV. L. REV. 2349, 2352 (2002) ("Fingerprint expert testimony does not survive application of the Daubert factors....");
135. Sombat, supra note 70, at 2825 ("[T]he result Judge Pollak reached when he excluded expert testimony concerning fingerprints [in Llera Plaza I] was fair.").
136. See Sarah Kershaw, Spain and U.S. at at Odds on Mistaken Terror Arrest, N.Y. TIMES, June 5, 2004, at A1 (clearing Brandon Mayfield as Spanish authorities matched the fingerprints to an Algerian national);
137. Flynn McRoberts & Maurice Possley, Report Blasts FBI Lab: Peer Pressure Led to False ID of Madrid Fingerprint, CHI. TRIB., Nov. 14,2004, at 1.
138. Professor Cole followed with an article identifying twenty-three cases of documented fingerprint misidentifications. See Simon A. Cole, More Than Zero: Accounting for Error in Latent Fingerprint Identification, 95 J. CRIM. L. & CRIMINOLOGY 985,1001-16 (2005).
139. The misidentification cases include some that involved (1) verification by one or more other examiners, (2) examiners certified by the International Association of Identification, (3) procedures using a sixteen-point standard, and (4) defense experts who corroborated misidentifications made by prosecution experts. Id. at 1003, 1008, 1010, 1014-15.
140. See Robert B. Stacey, A Report on the Erroneous Fingerprint Individualization in the Madrid Train Bombing Case, 54 J. FORENSIC IDENTIFICATION 706, 706 (2004).
141. SEE OFFICE OF THE INSPECTOR GEN., U.S. DEP'T OF JUSTICE, A REVIEW OF THE FBI'S HANDLING OF THE BRANDON MA YFIELD CASE, UNCLASSIFIED EXECUTIVE SUMMARY 9 (2006).
142. See Bruce Budowle et al., Review of the Scientific Basis for Friction Ridge Comparisons as a Means of Identification: Committee Findings and Recommendations, FORENSIC Sa. COMM. (Jan. 2006), http://www2.fbi.gov/hq/lab/fsc/ backissu/jan2006/research/2006-01-research02.htm.
143. See United States v. Hicks, 389 F.3d 514, 526 (5th Cir. 2004) ("[T]he matching of spent shell casings to the weapon that fired them has been a recognized method of ballistics testing in this circuit for decades.");
144. United States v. Foster, 300 F. Supp. 2d 375, 376 n.1 (D. Md. 2004) ("Ballistics evidence has been accepted in criminal cases for many years. ... In the years since Daubert, numerous cases have confirmed the reliability of ballistics identification.");
145. United States v. Santiago, 199 F. Supp. 2d 101, 111 (S.D.N.Y. 2002) ("The Court has not found a single case in this Circuit that would suggest that the entire field of ballistics identification is unreliable.");
146. State v. Anderson, 624 S.E.2d 393, 398 (N.C. Ct. App. 2006) (finding no abuse of discretion in admitting bullet identification evidence);
147. Commonwealth v. Whitacre, 878 A.2d 96,101 (Pa. Super. Ct. 2005) ("[W]e find no abuse of discretion in the trial court's decision to permit admission of the evidence regarding comparison of the two shell casings with the shotgun owned by Appellant.").
148. 405 F. Supp. 2d 104, 109-16 (D. Mass. 2005).
149. Id. at 107. Although the expert had seven years of experience in the field, he was not certified, and his lab was not accredited. Moreover, he had never been formally tested by a neutral proficiency examination. Finally, he could not cite any reliable error rates.
150. Id. The expert conceded, over and over again, that he relied mainly on his subjective judgment. There were no reference materials of any specificity, no national or even local database on which he relied. And although he relied on his past experience with these weapons, he had no notes or pictures memorializing his past observations.
151. Id.
152. Id. at 108-09 ("I reluctantly come to the above conclusion because of my confidence that any other decision will be rejected by appellate courts, in light of precedents across the country....").
153. E.g., United States v. Hines, 55 F. Supp. 2d 62, 70-71 (D. Mass. 1999) (admitting expert testimony concerning the general similarities and differences between a defendant's handwriting exemplar and a stick up note, but not the specific conclusion that the defendant was the author).
154. Green, 405 F. Supp. 2d at 109.
155. Id.
156. Donald Kennedy, Editorial, Forensic Science: Oxymoron?, 302 SCIENCE 1625, 1625 (2003). Science is published by the American Association for the Advancement of Science.
157. Other commentaries on problems in forensic science soon followed in Science. In 2002, Professor Faigman criticized fingerprint evidence in the wake of the Llera Plaza decisions. Faigman, supra note 38, at 339-40.
158. Professors Cole and Loftus published a letter following the exoneration of Steven Cowan, the first conviction overturned based on DNA profiling in which fingerprint evidence had been crucial in securing the wrongful conviction. Elizabeth F. Loftus & Simon A. Cole, Letter to the Editor, Contaminated Evidence, 304 SCIENCE 959, 959 (2004) ("[F]orensic scientists remain stubbornly unwilling to confront and control the problem of bias, insisting that it can be overcome through sheer force of will and good intentions.").
159. Professors Saks and Koehler's article on the paradigm shift appeared next. Saks & Koehler, supra note 36.
160. Donald Kennedy & Richard A. Merrill, Assessing Forensic Science, ISSUES SCI. & TECH., Fall 2003, at 33, 34.
161. D. Michael Risinger & Michael J. Saks, A House with No Foundation, ISSUES SCI. & TECH., Fall 2003, at 35, 35.
162. Mnookin, supra note 71, at 48-49.
163. Paul C. Giannelli, Crime Labs Need Improvement, ISSUES SCI. & TECH., Fall 2003, at 55, 55-56.
164. See supra text accompanying note 18.
165. In 1985, Dr. Alec Jeffreys of the University of Leicester, England, recognized the utility of DNA profiling in criminal cases. Its first use in American courts came the following year. See OFFICE OF TECH. ASSESSMENT, U.S. CONG., GENETIC WITNESS: FORENSIC USES OF DNA TESTS 8 (1990). By January 1990, forensic DNA analysis had been admitted into evidence "in at least 185 cases by 38 States and the U.S. military."
166. Id. at 14. The initial technique, Restriction Fragment Length Polymorphism (RFLP) analysis by gel electrophoresis, was soon supplanted by Polymerase Chain Reaction (PCR)-based methods involving the DQ-alpha locus, "polymarkers," and the D1S80 locus. These, in turn, were replaced by Short Tandem Repeats, the current procedure. In addition to nuclear DNA analysis, courts have admitted evidence based on mitochondrial DNA (mtDNA) sequencing, as well as DNA analyses of animals, plants, and the HIV virus.
167. See generally 2 GIANNELLI & IMWINKELRIED, supra note 5, ch. 18 (discussing the scientific and legal basis for DNA profiling).
168. 545 N.Y.S.2d 985 (N.Y. Sup. Ct. 1989). See generally Jennifer L. Mnookin, People v. Castro: Challenging the Forensic Use of DNA Evidence, in EVIDENCE STORIES 207, 208 (Richard Lempert ed., 2006) (discussing the historical development of DNA evidence use, Castro, and the "radical, though perhaps in the end, temporary, shift in the evaluation of DNA evidence" the case caused).
169. Castro, 545 N.Y.S.2d at 996.
170. Lander, supra note 42, at 504. The FBI's top DNA scientist, Dr. Bruce Budowle, would later acknowledge the shortfalls of DNA evidence when first introduced: The initial outcry over DNA typing standards concerned laboratory problems: poorly defined rules for declaring a match; experiments without controls; contaminated probes and samples; and sloppy interpretation of autoradiograms. Although there is no evidence that these technical failings resulted in any wrongful convictions, the lack of standards seemed to be a recipe for trouble.
171. Eric S. Lander & Bruce Budowle, Commentary, DNA Fingerprinting Dispute Laid to Rest, 371 NATURE 735, 735 (1994);
172. see also JAMES D. WATSON & ANDREW BERRY, DNA: THE SECRET OF LIFE 269 (2004) ("Initially, when DNA fingerprinting was done in forensic laboratories without special expertise in handling and analyzing DNA, critical mistakes were not uncommon.").
173. Watson was one of the discoverers of the double helix structure of DNA. See WATSON & BERRY, supra, at xi-xiv.
174. JAY D. ARONSON, GENETIC WITNESS: SCIENCE, LAW, AND CONTROVERSY IN THE MAKING OF DNA PROFILING 71 (2007). After testifying, Roberts signed the "joint statement" of scientists.
175. See supra text accompanying note 94.
176. See Thompson, supra note 39.
177. John W. Hicks, Letter to the Editor, DNA Test Proves Itself in Solving Crimes, N.Y. TIMES, Feb. 21, 1990, at A24.
178. 129 F.R.D. 629, 630 (N.D. Ohio 1990).
179. Id. at 631.
180. Id at 635-36;
181. see FED. R. CRIM. P. 16(a)(1)(D) (current version at FED. R. CRIM. P. 16(a)(1)(G)).
182. The federal magistrate granted the defense discovery motion based on a different provision of the discovery rule, one that required disclosure of documents and tangible objects that are material to the preparation of the defense. He ruled that "predicate materials" were discoverable under this provision. Yee, 129 F.R.D. at 635-36.
183. Yee was not the only case in which important information was withheld in DNA litigation. Timothy Spencer was the first person executed based on DNA evidence. Murderer Put to Death in Virginia: First U.S. Execution Based on DNA Tests, N.Y. TIMES, Apr. 28, 1994, at A19. When the defense sought discovery of the prosecution expert's "work notes," which formed the basis of his report, the motion was denied, and the Virginia Supreme Court upheld this ruling.
184. Spencer v. Commonwealth, 384 S.E.2d 785, 791 (Va. 1989).
185. See generally Paul C. Giannelli, Criminal Discovery, Scientific Evidence, and DNA, 44 VAND. L. REV. 791, 800-03 (1991) (discussing unjustifiable limitations on discovery).
186. United States v. Yee, 134 F.R.D. 161, 208 (N.D. Ohio 1991),
187. affd sub nom. United States v. Bonds, 12 F.3d 540 (6th Cir. 1993) (emphasis added).
188. . Thompson, supra note 39, at 98.
189. Yee, 134 F.R.D. at 210.
190. Leslie Roberts, Fight Erupts over DNA Fingerprinting, 254 SCIENCE 1721, 1721 (1991).
191. See Richard C. Lewontin & Daniel L. Hartl, Population Genetics in Forensic DNA Typing, 254 SCIENCE 1745, 1750 (1991). They also wrote: "Appropriately carried out and correctly interpreted, DNA typing is possibly the most powerful innovation in forensics since the development of fingerprinting in the last part of the 19th century."
192. Id. at 1746.
193. See Cases and Commentaries, PROF. ETHICS REP. (Am. Ass'n for the Advancement of Sci. Comm. on Scientific Freedom & Responsibility & Prof'l Soc'y Ethics Grp., D.C.), Spring 1992, at 1,2 [hereinafter AAAS ETHICS REPORT] ("[T]he normal procedure followed by Science is to publish rebuttals in a subsequent issue and to give the authors of the original article an opportunity to respond.").
194. Leslie Roberts, Science in Court: A Culture Clash, 257 SCIENCE 732, 735 (1992). Roberts was a staff writer for Science.
195. See Ranajit Chakraborty & Kenneth K. Kidd, The Utility of DNA Typing in Forensic Work, 254 SCIENCE 1735 (1991).
196. Roberts, supra note 105, at 1721. Lewontin characterized the use of the rebuttal article as "'[p]ure politics... I think it is quite extraordinary that an editor would go out and hire two guys to write a rebuttal' after the article had been peer reviewed and accepted."
197. Leslie Roberts, Was Science Fair to Its Authors?, 254 SCIENCE 1722, 1722 (1991). Kidd explained: '"I felt publishing the article would create a very serious problem in the legal system, and that that was their intent.'"
198. Id. Koshland defended this position: "'I did it to give a more balanced view of the subject. I was trying to be fair.'"
199. Id.
200. Robert A. Bever et al., Letter to the Editor, 255 SCIENCE 1050, 1050 (1992).
201. Lynwood R. Yarbrough, Letter to the Editor, 255 SCIENCE 1052, 1052 (1992);
202. see also Don W. Cleveland, Letter to the Editor, 255 SCIENCE 1052, 1052 (1992) ("[S]urely it is not often that an Editor insists on revisions to the galleys of an article accepted after peer review. Even more remarkable (and all credit no doubt due to the Editor) is to commission a rebuttal to the article and to publish it contemporaneously. Save for an uncritical account filtered through a staff reporter (Leslie Roberts), oddly missing has been direct comment, so often heard on other issues, from the Editor who stands at the center (or more accurately to one side) of the controversy. Having first stirred the pot, where was he when it came time to eat the meal, be it cake or crow?"). Two years later the controversy was still simmering.
203. Compare Daniel E. Koshland Jr., Editorial, The DNA Fingerprint Story (Continued), 265 SCIENCE 1015,1015 (1994) ("This acceptance of the validity of DNA evidence is... a rebuke to the judicial process that has been so slow to accept DNA evidence by failing to see that a couple of outspoken individuals were less representative of the scientific community than the vast majority of careful scholars."),
204. with Daniel L. Hartl & Richard C. Lewontin, Letter to the Editor, 266 SCIENCE 201, 201 (1994) ("The present editor of Science has more than once attempted to nullify our analysis of scientific issues in the forensic use of DNA polymorphism...Now he has used his privileged access to the editorial column of Science to publish an attack of his own...").
205. Roberts, supra note 108, at 735 ("In a move he would come to regret, Wooley called Hartl in early October 1991 to 'lobby him' not to publish the article, which he considered ill-conceived.");
206. see also Gina Kolata, Critic of "Genetic Fingerprint" Tests Tells of Pressure to Withdraw Paper, N.Y. TIMES, Dec. 20, 1991, at A20.
207. Roberts, supra note 108, at 735;
208. see also Peter J. Neufeld, Have You No Sense of Decency?, 84 J. CRIM. L. & CRIMINOLOGY 189,193 (1993) ("Dr. Hartl 'had no doubt,' both 'from the tone and intensity of his remarks, that Mr. Wooley, on behalf of the FBI and the Department of Justice, was trying to get me to withdraw the article.'"
209. (quoting Affidavit of Daniel Hartl at 1-4, United States v. Yee, No. 91-3160 (N.D. Ohio Mar. 16, 1992))).
210. See ARONSON, supra note 95, at 44 ("Open access to the materials used to conduct DNA testing (especially the probes), as well as the databases used to determine the frequency of a specific allele, would become a major aspect of the controversy over DNA evidence in mid-1989.").
211. State v. Alt, 504 N.W.2d 38,48-49 (Minn. Ct. App. 1993) (admitting DNA evidence). Courts had also criticized private DNA labs on this basis. See State v. Schwartz, 447 N.W.2d 422, 427-28 (Minn. 1989) ("The validity of testing procedures and principles is assessed in the scientific community by publishing the data in peer review journals-Efforts to assess the reliability of the commercial laboratories' methodology consequently have been hindered because this information has not yet been made fully available. For example, Cellmark has not yet published data regarding its methodology and its probes are only selectively available."). In contrast to the FBI, these enterprises at least have a colorable claim of trade secrets.
212. See ARONSON, supra note 95, at 77-87 (discussing Schwartz).
213. Seymour Geisser, Statistics, Litigation, and Conduct Unbecoming, in STATISTICAL SCIENCE IN THE COURTROOM 71, 79 (Joseph L. Gastwirth ed., 2000). According to a NAS report, "[a]n author's obligation is not only to release data and materials to enable others to verify or replicate published findings... but also to provide them in a form on which other scientists can build with further research."
214. NAT'L RESEARCH CouNaL, NAT'L ACAD, OF Sas., SHARING PUBLICATION-RELATED DATA AND MATERIALS: RESPONSIBILITIES OF AUTHORSHIP IN THE LIFE SCIENCES 4 (2003) [hereinafter NAS SHARING DATA REPORT].
215. Geisser, supra note 117, at 80.
216. The editor (Epstein) later wrote that this incident was "sheer coincidence." AAAS ETHICS REPORT, supra note 107, at 4. Chakraborty responded: I have never discussed this review nor the paper with anyone. I was critical of the manuscript, because I believed that it was unprofessionally written, it contained several fatal errors, and it only reported parts of unpublished data from other laboratories without appropriate credit or consent of the data gathers. Id. The paper was subsequently published.
217. See Seymour Geisser & Wesley Johnson, Testing HardyWeinberg Equilibrium on Allelic Data from VNTR Loci, 51 AM. J. HUM. GENETICS 1084 (1992).
218. See supra text accompanying note 108.
219. AAAS ETHICS REPORT, supra note 107, at 5. Epstein, editor of American Journal of Human Genetics, wrote that his journal had "served as an open forum on the forensic uses of DNA technology. We have published highly 'partisan' but nevertheless carefully reviewed papers on all sides of the issue."
220. Id.
221. Chakraborty explained: "My co-investigatorship in a NIJ grant had no connection with my reviewing this manuscript, and my review was to the point of evaluating a 'scientific manuscript on its scientific merit.'"
222. Id. at 4.
223. Geisser, supra note 117, at 81.
224. Id. at 82.
225. Christopher Anderson, FBI Attaches Strings to Its DNA Database, 357 NATURE 618, 618 (1992) (quoting part of letter).
226. Kearney says that the FBI is "not quite sure of [Geisser's] intent" in seeking to analyze the data, pointing out that Geisser has testified for the defence-Kearney acknowledged that the FBI has provided the data to other researchers... at least two of whom have testified for the prosecution - Id.
227. AAAS ETHICS REPORT, supra note 107, at 6.
228. THOMAS O. MCGARITY & WENDY E. WAGNER, BENDING SCIENCE: How SPECIAL INTERESTS CORRUPT PUBLIC HEALTH RESEARCH 96 (2008) (listing examples of the "funding effect").
229. Justin E. Bekelman et al., Scope and Impact of Financial Conflicts of Interest in Biomedical Research: A Systematic Review, 289 J. AM. MED. Ass'N. 454, 463 (2003).
230. NAS DNA REPORT I, supra note 40, at 1-2. A second committee was formed after some aspects of the first report were severely criticized.
231. NAS DNA REPORT II, supra note 40, at v-vi.
232. See AAAS ETHICS REPORT, supra note 107, at 7 (statement of Barry Scheck) ("Hicks subsequently wrote an unsolicited reply that NAS staff say they did not distribute to the Committee.");
233. Celia Hooper, Rancor Precedes National Academy of Science's DNA Fingerprinting Report, J. NIH RES., Mar. 1992, at 76, 79 ("Hicks says that... two members of the NAS committee gave him copies of a preliminary draft of the report.");
234. see also Shannon Brownlee, Courtroom Genetics: A Flap over DNA Evidence Raises Questions About the Relationship of Science to the Law, U.S. NEWS & WORLD REP., Jan. 27,1992, at 60, 61 ("Hicks told U.S. News that two panel members, who were unhappy with the panel's conclusions, sent him a draft-").
235. The NAS officials refused to pass on the FBI's objections to the committee.
236. Hooper, supra note 130, at 80.
237. The issue had arisen at the time of the Science affair. Yarbrough's letter to the editor noted: The vehemence and lack of scientific objectivity that appear to surround this issue indicate that there may be important concerns other than scientific ones. I urge that Science obtain from those most closely involved in this debate information about possible economic interests in DNA typing and provide this information to the reader, as other journals have sometimes done. Yarbrough, supra note 112, at 1052;
238. see also Rorie Sherman, DNA Is on Trial Yet Again, NAT'L L.J., Mar. 16,1992, at 1 (discussing conflicts of interest).
239. See Christopher Anderson, Conflict Concerns Disrupt Panels, Cloud Testimony, 355 NATURE 753, 753-54 (1992) (reporting Caskey's resignation from several panels including the NAS Committee);
240. Christopher Anderson, DNA Fingerprinting Discord, 354 NATURE 500, 500 (1991) ("Caskey is a prominent supporter of DNA fingerprinting who licenses his techniques to Cellmark Diagnostics, one of the largest DNA fingerprinting companies.");
241. see also ARONSON, supra note 95, at 159 (discussing Caskey's resignation from the NAS Committee).
242. MCGARITY & WAGNER, supra note 127, at 173.
243. 646 A.2d 431 (N.J. Super. Ct. App. Div. 1994) (per curiam).
244. A former prosecutor would later write that Blake was "a noted forensic serologist, [who] had become a pioneer in the use of PCR testing in criminal cases" and that "prosecutors and defense attorneys alike enlisted Blake for testing and advice." GEORGE "WOODY" CLARKE, JUSTICE AND SCIENCE: TRIALS AND TRIUMPHS OF DNA EVIDENCE 41-42 (2007).
245. DeMarco, 646 A.2d at 436-37;
246. see also Kolata, supra note 113, at A20 ("When Dr. Ford testified ..., the prosecutors obtained a court order to examine his laboratory and all papers in it.").
247. See Leslie Roberts, Prosecutor v. Scientist: A Cat-and-Mouse Relationship, 257 SCIENCE 733, 733 (1992) (noting "an unofficial network of prosecutors and the FBI").
248. Kolata, supra note 113, at A20.
249. Roberts, supra note 138, at 733;
250. see also Neufeld, supra note 114, at 192-93 ("Harmon wrote to the editors of Science in an attempt to thwart the publication of Mueller's paper. In his letter to Science, written on official government letterhead, Harmon... derided Dr. Mueller's technical criticisms as 'knuckle-headed,' suggested that the doctor was unethical, and cautioned the editors that publication 'could conceivably result in a vicious, violent criminal being freed to continue to prey on society.'"). Harmon's letter worked.
251. See Kolata, supra note 113, at A20 ("[Dr. Ford] said an F.B.I, lawyer asked him about the status of his visa status during cross-examination... last year.").
252. Geisser, supra note 117, at 84. Libby was a defense expert in the 1994 trial of Bradly Cunningham for the murder of his wife. Cunningham was representing himself. John Hunt, Cunningham's standby attorney (advisor), was also indicted along with Libby. The charge of false swearing arose from Libby's affidavit in the support of a mistrial motion, in which Libby asserted that he had not been allowed to talk to the defendant in jail in order to prepare to testify. Jail officials said that arrangements would have been made if Libby and Hunt had so requested. Yet John Junkin, the county counsel, testified at the trial "that he and the jail commander had issued a policy prohibiting Cunningham from meeting privately with anyone except his advisers and investigator. Junkin said a court order would have been necessary for Cunningham to meet with an expert witness, such as Libby."
253. Elvia Diaz, Expert Witness, Attorney Acquitted, OREGONIAN, Aug. 13,1996, at B02. Incredibly, Libby was also charged with tampering with physical evidence-signing the affidavit.
254. See also Don Hamilton, Forensic Expert Sues County's District Attorney, OREGONIAN, May 9,1997, at C02.
255. Geisser, supra note 117, at 84.
256. One prosecutor referred to a defense expert as espousing "knuckle-headed ideas." Roberts, supra note 138, at 733
257. (quoting Rockne Harmon). Another referred to a different expert's views as "ill-conceived." Roberts, supra note 108, at 735 (discussing James Wooley's views).
258. See Paul C. Giannelli, The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later, 80 COLUM. L. REV. 1197, 1224-25 (1980) (discussing the history of the paraffin test).
259. NAT'L RESEARCH COUNCIL, NAT'L ACAD, OF SCIS., ON THE THEORY AND PRACTICE OF VOICE IDENTIFICATION 1-2,45 (1979) [hereinafter NAS VOICE ID REPORT];
260. see also 1 GIANNELLI & IMWINKELRIED, supra note 5, ch. 10 (discussing the voiceprint developments).
261. See Symposium on Science and the Rules of Evidence, 99 F.R.D. 187, 233 (1983) (statement of Margaret Berger) (noting "the lack of scientific literacy" of lawyers).
262. Adversarial pressure on experts is so common that the ABA felt compelled to issue a standard in an attempt to address the problem. ABA Criminal Justice Standard 3-3.3(a) provides: "A prosecutor who engages an expert for an opinion should respect the independence of the expert and should not seek to dictate the formation of the expert's opinion on the subject." STANDARDS FOR CRIMINAL JUSTICE PROSECUTION FUNCTION & DEF. FUNCTION § 3-3.3(a) (3d ed. 1993). The accompanying commentary states:
263. Statements made by physicians, psychiatrists, and other experts about their experiences as witnesses in criminal cases indicate the need for circumspection on the part of prosecutors who engage experts. Nothing should be done by a prosecutor to cast suspicion on the process of justice by suggesting that the expert color an opinion to favor the interests of the prosecutor. Id. §3-3.3 cmt. at 59. A comparable Standard applies to defense counsel.
264. Id. §4-4.4(a).
265. E.g., Leslie Roberts, Hired Guns or True Believers?, 257 SCIENCE 735, 735 (1992) [hereinafter Roberts, Hired Guns] (reporting that another expert received more than $60,000 for testifying once a month for several years);
266. Roberts, supra note 108, at 734 (noting that one prosecutor complained that an expert was paid $28,000 for four-month preparation and trial testimony).
267. Roberts, Hired Guns, supra note 149, at 735 ("[One prosecution witness] appeared 14 times in the past year and a half, bringing in $3,000 to $4,000 a case-In fact, witnesses on both sides charge roughly the same amount-$150 or $200 an hour, and perhaps $1,000 a day if they are out of town, plus expenses.").
268. See ARONSON, supra note 95, at 111 ("In addition to receiving substantial fees for testifying on behalf of the prosecution, members of this group also received significant grants from the National Institute of Justice-").
269. As Judge Weinstein has noted, "[c]ourts, as gatekeepers, must be aware of how difficult it can be for some parties-particularly indigent criminal defendants-to obtain an expert to testify. The fact that one side may lack adequate resources with which to fully develop its case is a constant problem."
270. Jack B. Weinstein, Science, and the Challenges of Expert Testimony in the Courtroom, 77 OR. L. REV. 1005, 1008 (1998).
271. A survey of approximately three hundred crime laboratories revealed that "[f]ifty-seven percent ... would only examine evidence submitted by law enforcement officials." Joseph L. Peterson et al., The Capabilities, Uses, and Effects of the Nation's Criminalistics Laboratories, 30 J. FORENSIC SCI. 10, 13 (1985);
272. see also PRESIDENT'S COMM'N ON LAW ENFORCEMENT & ADMIN, OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 255 (1967) ("[Crime laboratories are] the oldest and strongest link between science and technology and criminal justice.").
273. The FBI Laboratory, the largest publicly funded forensic laboratory in the country, had 585 fulltime employees as of January 2004. The new FBI Lab at Quantico, Virginia, cost over $150 milliqn.
274. Joseph L. Peterson & Matthew J. Hickman, Census of Publicly Funded Forensic Crime Laboratories, 2002, in BUREAU OF JUSTICE STATISTICS BULLETIN 11 (U.S. Dep't of Justice, NCJ 207205, Feb. 2005).
275. See generally DAVID FISHER, HARD EVIDENCE: HOW DETECTIVES INSIDE THE FBI's SCI-CRIME LAB HAVE HELPED SOLVE AMERICA'S TOUGHEST CASES (1995) (discussing the FBI Lab's successes);
276. The History Channel, Modern Marvels: FBI's Crime Lab (2004) (documentary).
277. "It is quite common to find FBI or other federal experts testifying in state criminal proceedings about a diverse array of forensic procedures, including the analysis of drugs, blood, hair, fibers, firearms, fingerprints, gunshot residues, shoeprints, voice comparisons, and the like."
278. Giannelli, supra note 23, at 1329-30 (footnotes omitted).
279. For example, the services of the FBI Laboratory are available without charge to all police departments.
280. See 28 C.F.R. §0.85(g) (2009) ("[The FBI Laboratory is] to provide, without cost, technical and scientific assistance... for all duly constituted law enforcement agencies,... which may desire to avail themselves of the service.").
281. See Kowalski v. Tesmer, 543 U.S. 125,140 (2004) (Ginsburg, J., dissenting) ("According to the Department of Justice, approximately eight out of ten state felony defendants use court-appointed lawyers.");
282. YALE KAMISAR ET AL.. MODERN CRIMINAL PROCEDURE 22-23 (10th ed. 2002) ("A sampling of felony defendants in the 75 largest counties indicated that approximately 80% receive court appointed attorneys.").
283. 470 U.S. 68,83-84 (1985).
284. In 1990, the National Law Journal published the results of a six-month investigation of the defenses of capital murders in the South. One of the "key findings" concerned defense experts: "Judges routinely deny lawyers' requests for expert/investigative fees."
285. Mareia Coyle et al., Fatal Defense: Trial and Error in the Nation's Death Belt, NAT'L L.J., June 11,1990, at 30, 30. As part of this investigation, sixty death row trial lawyers were interviewed-"54.2% felt [the] court provided inadequate investigation and expert funds."
286. Id. at 40. One attorney, who was appointed to represent a death row inmate in Georgia, had his request for the appointment of an expert denied. He commented: "There's an economic presumption of guilt-The district attorney has all the resources of the state crime lab, and we have to go hat in hand to the judge and the DA on every request."
287. Id. at 38.
288. In addition, a 1993 report commissioned by the Texas Bar Association concluded that "[t]here is a serious underfunding of essential expert services and other expenses in capital trials and appeals." The Spangenberg Group, A Study of Representation in Capital Cases in Texas, 56 TEX. B.J. 333, 408 (1993).
289. ROGER A. HANSON ET AL., NAT'L CTR. FOR STATE COURTS, INDIGENT DEFENDERS: GET THE JOB DONE AND DONE WELL 100 (1992).
290. NEIL VIDMAR & VALERIE P. HANS, AMERICAN JURIES: THE VERDICT 173 (2007). In their landmark 1966 jury study, Kalven and Zeisel commented: "Again, the imbalance between prosecution and defense appears. In 22 per cent of the cases the prosecution has the only expert witness, whereas in only 3 per cent of the cases does the defense have such an advantage."
291. HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 139 (1966).
292. "Defense counsel must have access to adequate expert assistance, even when the admissibility of the results of analytical techniques is not in question, because there is still a need to review the quality of the laboratory work and the interpretation of the results."
293. NAS DNA REPORT I, supra note 40, at 147.
294. "Because of the potential power of DNA evidence, authorities must make funds available to pay for expert witnesses-" Id. at 149. A British study came to the same conclusion: "Legal Aid should be granted automatically for one expert assessment of the prosecution work. DNA evidence should only be admissible where an appropriate expert is available to the defence."
295. BEVERLEY STEVENTON, ROYAL COMM'N ON CRIMINAL JUSTICE, THE ABILITY TO CHALLENGE DNA EVIDENCE, RESEARCH STUDY No. 9, at 44 (1993).
296. According to the President's DNA Initiative, "Even if DNA evidence is admitted, there still may be disagreement about its interpretation-what do the DNA results mean in a particular case?"
297. NAT'L INST, OF JUSTICE, PRESIDENT'S DNA INITIATIVE: PRINCIPLES OF FORENSIC DNA FOR OFFICERS OF THE COURT (U.S. Department of Justice CD-ROM, NCJ 212399).
298. NAS DNA Report I, supra note 40, at 93. The Report further commented: "Because the application of DNA typing in forensic science is to be used in the service of justice, it is especially important for society to establish mechanisms for accountability and to ensure appropriate public scrutiny."
299. Id. at 162.
300. Id. at 94.
301. MIKE REDMAYNE, EXPERT EVIDENCE AND CRIMINAL JUSTICE 204 (2001);
302. see also ARONSON, supra note 95, at 3-4 ("As a result of defense challenges, scientists were forced to go back to their laboratories and professional societies to develop more robust methods and protocols, better quality control mechanisms, and more effective, inclusive peer review systems.").
303. IAN W. EVETT & BRUCE S. WEIR, INTERPRETING DNA EVIDENCE: STATISTICAL GENETICS FOR FORENSIC SCIENTISTS xiv (1998);
304. see also Richard Lempert, Comment: Theory and Practice in DNA Fingerprinting, 9 STAT. Sei. 255, 258 (1994) ("[I]n this instance the importation of legal adversariness into the scientific world has spurred both valuable research and practical improvements in the way DNA evidence is analyzed and presented.");
305. Mnookin, supra note 41, at 70 ("[W]hile it is easy to disparage 'battles of the experts' as expensive, misleading, and confusing to the factfinder, these battles may also reveal genuine weaknesses in proffered expert knowledge.").
306. See supra notes 59-71 and accompanying text.
307. United States v. Haward, 117 F. Supp. 2d 848,854 (S.D. Ind. 2000),
308. aff'd, 260 F.3d 597 (7th Cir. 2001).
309. 365 F.3d 215,219 (3d Cir. 2004).
310. Epstein, supra note 70, at 629. Epstein was the defense counsel in Mitchell.
311. Id. at 629 n.132 (emphasis added) (quoting FBI letter). According to Epstein, [t]he FBI was so unhappy with the results of this experiment that it sent the nine agencies in question a new response form-This time, however, the FBI took nothing for granted. The FBI provided the agencies with the marked-up enlargements of the fingerprints displaying what the FBI apparently believed to be the common characteristics.
312. Id.
313. Eg., United States v. Hernandez, 299 F.3d 984, 991 (8th Cir. 2002);
314. United States v. Prime, 220 F. Supp. 2d 1203, 1210 (W.D. Wash. 2002).
315. E.g., David H. Kaye, Questioning a Courtroom Proof of the Uniqueness of Fingerprints, 71 INT'L STAT. REV. 521, 526-28 (2003);
316. Sharath Pankanti et al., On the Individuality of Fingerprints, 24 IEEE TRANSACTIONS ON PATTERN ANALYSIS & MACHINE INTELLIGENCE 1010, 1024 (2002).
317. Kaye, supra note 172, at 527-28. In another passage, he wrote: "the study merely demonstrates the trivial fact that the same two-dimensional representation of the surface of a finger is far more similar to itself than to such a representation of the surface of a finger from any other person in the data set."
318. Id. at 527.
319. Professor Kaye also made the following observations: "The sampling procedure was not described beyond the observation that 'database retrieval software' selected 'the first 50,000 left loop records.'"
320. Id. at 524. "The report gives no explanation of the algorithms or how they differ."
321. Id. at 524-25. "The report does not describe these distributions. No values for the means and standard deviations are provided."
322. Id. at 525. "[T]he probabilities... are too small, making the demonstration of uniqueness seem stronger than it is."
323. Id. at 526.
324. Llera Plaza II, 188 F. Supp. 2d 549,558 (E.D. Pa. 2002).
325. Id. at 565.
326. See Stacey, supra note 74, at 716 ("Verifiers should be given challenging exclusions during blind proficiency tests to ensure that they are independently applying ACE-V methodology correctly -");
327. see also United States v. Crisp, 324 F.3d 261, 274 (4th Cir. 2003) (Michael, J., dissenting) ("Proficiency testing is typically based on a study of prints that are far superior to those usually retrieved from a crime scene.");
328. Jennifer L, Mnookin, Op-Ed., A Blow to the Credibility of Fingerprint Evidence, BOSTON GLOBE, Feb. 2,2004, at A15 ("There are no systematic proficiency tests to evaluate examiners' skill. Those tests that exist are not routinely used and are substandard.").
329. NAT'L INST, OF JUSTICE, U.S. DEP'T OF JUSTICE, SOLICITATION: FORENSIC FRICTION RIDGE (FINGERPRINT) EXAMINATION VALIDATION STUDIES 3 (2000).
330. See Epstein, supra note 70, at 628 n.122 ("Internal documents of the NIJ presently on file with the author... reveal that the Institute was ready to publish the Solicitation in September of 1999, but that at the FBI's request, publication was delayed until after Mitchell's trial.").
331. United States v. Mitchell, 365 F.3d 215,255 (3d Cir. 2004);
332. see also id. at 232.
333. [Mitchell's] most damaging evidence came from Dr. Richard Rau of the NIJ, who coordinated the drafting of the solicitation. Rau testified to conversations at a September 1999 meeting among himself, Donald Kerr (the Assistant Director of the FBI in charge of the FBI crime laboratory), David Boyd (the Deputy Director of the NIJ), and others. Rau claimed that at that meeting Kerr and Boyd agreed to withhold release of the solicitation until the end of Mitchell's trial. In response to Dr. Rau's testimony, the government called Kerr, Boyd, and the other individuals at the meeting to testify that Dr. Rau's account of the delay in releasing the solicitation was incorrect and that the delay was caused by budgetary issues.
334. Id.
335. See supra text accompanying notes 84-85.
336. Kennedy, supra note 84, at 1625.
337. See Budowle et al., supra note 76;
338. supra text accompanying notes 72-76.
339. Stacey, supra note 74, at 713.
340. See generally Erik Randich & Patrick M. Grant, Proper Assessment of the JFK Assassination Bullet Lead Evidence from Metallurgical and Statistical Perspectives, 51 J. FORENSIC Sci. 717 (2006) (discussing the original analysis of the bullet fragments).
341. NAT'L RESEARCH COUNOL, NAT'L ACAD, OF SCIS., FORENSIC ANALYSIS: WEIGHING BULLET LEAD EVIDENCE 1-2,15 (2004) [hereinafter NAS CBLA REPORT]. The author served on the NAS Committee.
342. Id. at 2.
343. See Edward J. Imwinkelried & William A. Tobin, Comparative Bullet Lead Analysis (CBLA) Evidence: Valid Inference or Ipse Dixit?, 28 OKLA. CITY U. L. REV. 43, 44-46 (2003);
344. Erik Randich et al., A Metallurgical Review of the Interpretation of Bullet Lead Compositional Analysis, 127 FORENSIC SCI. INT'L 174, 174-76 (2002) (Tobin was a co-author);
345. William A. Tobin & Wayne Duerfeldt, How Probative Is Comparative Bullet Lead Analysis?, CRIM. JUST., Fall 2002, at 26, 27.
346. In 2003, a federal district court excluded CBLA evidence under the Dauben standard, the first case to do so. United States v. Mikos, No. 02 CR 137,2003 WL 22922197, at *6 (N.D. IU. Dec. 9,2003).
347. Eg., Ragland v. Commonwealth, 191 S.W.3d 569,577 (Ky. 2006);
348. demons v. State, 896 A.2d 1059,1068-70 (Md. 2006);
349. State v. Behn, 868 A.2d 329, 339-42 (N.J. Super. Ct. App. Div. 2005) (Tobin's affidavit submitted).
350. In Ragland, 191 S.W.3d at 580, a Kentucky murder case, an FBI examiner, Kathleen Lundy, lied during an admissibility hearing. She "blamed her conduct partly on a sense of crisis in her work, fed by 'new and repeated challenges to the validity of the science associated with bullet lead comparison analysis.'"
351. Charles Piller & Robin Mejia, Science Casts Doubt on FBI's Bullet Evidence, L.A. TIMES, Feb. 3, 2003, at Al. Lundy subsequently admitted to her superiors that she had lied, and on June 17,2003, she pleaded guilty to testifying falsely and was sentenced to a suspended ninety-day jail sentence and a $250 fine.
352. Mark Pitsch, Ex-FBI Scientist Pleads Guilty, COURIER-JOURNAL, June 18, 2003, at IB;
353. see also Associated Press, Prosecutors Challenged in Ragland Murder Case, KY. POST, Sept. 6,2002, at A13 ("Attorneys for both sides were in court for a hearing in which FBI ballistics expert Kathleen Lundy was scheduled to testify about lying during a preliminary hearing in Shane Ragland's murder case.");
354. Maurice Possley, Study Shoots Holes in Bullet Analyses by FBI, CHI. TRIB., Feb. 11, 2004, atC14.
355. NAS CBLA REPORT, supra note 186, at iv, 5-6. The remainder of this Section, infra notes 192-200 and accompanying text, are amplified in the National Academy of Sciences' report, Forensic Analysis: Weighing Bullet Lead Evidence, which the author co-authored, and other previous articles published by the author.
356. See id. at 91-93;
357. Giannelli, supra note 45, at 198-203.
358. Eg., Wilkerson v. State, 776 A.2d 685,689 (Md. Ct. Spec. App. 2001).
359. E.g., State v. Krummacher, 523 P.2d 1009, 1012 (Or. 1974).
360. Eg., United States v. Davis, 103 F.3d 660, 673-74 (8th Cir. 1996);
361. People v. Lane, 628 N.E.2d 682,689-90 (IU. App. Ct. 1993).
362. See Jones v. State, 425 N.E.2d 128,131 (Ind. 1981);
363. State v. Strain, 885 P.2d 810,817 (Utah Ct. App. 1994).
364. See State v. Grube, 883 P.2d 1069, 1078 (Idaho 1994);
365. People v. Johnson, 499 N.E.2d 1355, 1366 (III. 1986).
366. See State v. Reynolds, 297 S.E.2d 532,534 (N.C. 1982).
367. Bryan v. State, 935 P.2d 338,360 (Okla. Crim. App. 1997).
368. See Davis, 103 F.3d at 666 ("An expert testified that such a finding is rare and that the bullets must have come from the same box or from another box that would have been made by the same company on the same day.");
369. Commonwealth v. Daye, 587 N.E.2d 194,207 (Mass. 1992);
370. State v. King, 546 S.E.2d 575, 584 (N.C. 2001) ("Ms. Lundy opined that, based on her lead analysis, the bullets she examined either came from the same box of cartridges or came from different boxes of the same caliber, manufactured at the same time.").
371. Brown v. State, 601 P.2d 221,224 (Alaska 1979) (emphasis added). In another case, the expert "opined that the same company produced the bullets at the same time, using the same lead source. Based upon Department of Justice records, she opined that an overseas company called PMC produced the bullets around 1982."
372. People v. Villarta, No. H021354, 2002 WL 66887, at *6 (Cal. Ct. App. Jan. 17, 2002). One case reports the expert's conclusion with a statistic.
373. Earhart v. State, 823 S.W.2d 607, 614 (Tex. Crim. App. 1991). In recent years, the testimony became more limited. A 2002 FBI publication stated the conclusion as follows: "Therefore, they likely originated from the same manufacturer's source (melt) of lead."
374. Charles A. Peters, The Basis for Compositional Bullet Lead Comparisons, FORENSIC SCI. COMM. (July 2002), http://www2.fbi.gov/hq/lab/fsc/backissu/ july2002/peters.htm (emphasis added).
375. NAS CBLA REPORT, supra note 186, at 7.
376. See Clifford H. Spiegelman & Karen Kafadar, Data Integrity and the Scientific Method: The Case of Bullet Lead Data as Forensic Evidence, CHANCE, June 2006, at 17, 22.
377. Id.
378. Id. ("During the open sessions of the committee meetings, the FBI claimed to have a 'complete data file' of some 71,000+ measurements. Following repeated requests from the committee, the FBI submitted at its last meeting a CD-ROM that contained two data files with a combined total of 64,869 bullet (not 71,000+) measurement records. This dataset could not be analyzed in time for the release of the report-").
379. Id.
380. Id. "[T]he numbering system of the bullets was highly inconsistent and rather unexpected (e.g., the bullets from a suspect in a particular case might be numbered Q13A, Q13B, Q13C, Q14A, Q14B, Q14C,..., leading one to wonder what happened to bullets Q01, Q02,..., Q12)."
381. Id. Other illustrations of incomplete data were noted: "while most of the bullets indicated three measurements, about 30 bullets had six or more measurements."
382. Id.
383. [O]nly about 50% of the bullets in this dataset were identified as having come from one of the four major bullet manufacturers in the United States [(Cascade Cartridge, Inc., or CCI; Federal; Remington; and Winchester)]; the "complete data file" of 71,000 bullets may yield a higher proportion of bullets from these four manufacturers.
384. Id. at 18-19, 22.
385. Id. at 22.
386. Id.
387. Id.
388. Id. at 24.
389. See Giannelli, supra note 45, at 198-203 (discussing CBLA).
390. 823 S.W.2d 607, 614 (Tex. Crim. App. 1991) ("[The expert] concluded that the likelihood that two .22 caliber bullets came from the same batch, based on all the .22 bullets made in one year, is approximately .000025 percent, 'give or take a zero.' [The expert] subsequently acknowledged, however, that the numbers which he used to reach the .000025 percent statistic failed to take into account that there are different types of .22 caliber bullets made each year-").
391. See Earhart v. Johnson, 132 F.3d 1062,1067 (5th Cir. 1998) (denying habeas relief) ("Given the significant role the bullet evidence played in the prosecution's case, we shall therefore assume Earhart could have made a sufficient threshold showing that he was entitled to a defense expert under Texas law.").
392. Statement of Facts: Trial at 5248-49, State v. Earhart, No. 4064 (Tex. D. Apr. 21, 1989) (testimony of John Riley);
393. see also id. at 5258 ("Well, bullets that are... analytically indistinguishable compositions... typically are found within the same box of ammunition and that is the case that we have here. Now, bullets that are the same composition can also be found in other boxes of ammunition, but it's most likely those boxes would have been manufactured at the same place on or about the same date."). A different FBI examiner took a different position in another case.
394. See Transcript of Record at 1-2, Commonwealth v. Wilcox (Ky. Feb. 28,2002) (Daubert hearing; testimony of Charles A. Peters, FBI examiner) ("We have never testified, to my knowledge, that that bullet came from that box. We'd never say that. All we are testifying is that that bullet, or that victim fragment or something, the bullet, either came from that box or the many boxes that were produced at the same time." (emphasis added)).
395. NAS CBLA REPORT, supra note 186, at 6.
396. See Death Penalty Info. Ctr., Searchable Execution Database, DEATHPENALTYINFO.ORG, http://www.deathpenaltyinfo.org/executions (search "Earhart" under "Search by Name" search box) (last visited Nov. 9, 2010).
397. Press Release, Fed. Bureau of Investigation, National Academy of Sciences Releases FBICommissioned Study on Bullet Lead Analysis (Feb. 10, 2004), available at http://www.fbi.gov/news/ pressrel/press-releases/national-academy- of-sciences-releases-fbi-commissioned-study-on-bullet-leadanalysis.
398. Id.
399. Possley, supra note 190, at C14.
400. Charles Piller, Report Finds Flaws in FBI Bullet Analysis: Changes Are Proposed for the Technique Often Cited in Expert Testimony in Criminal Trials, L.A. TIMES, Feb. 11, 2004, at A12.
401. Randolph E. Schmid, Panel Questions FBI Bullet Analysis, NAT'L WHISTLEBLOWERS CTR., http://www.whistleblowers.org/index.php?option= content&tak=view&id=269 (last visited Nov. 9, 2010).
402. Eric Lichtblau, Report Questions the Reliability of an F.B.I. Ballistics Test, N.Y. TIMES, Feb. 11, 2004, atA22.
403. Press Release, Fed. Bureau of Investigation, supra note 217.
404. NAS CBLA REPORT, supra note 186, at 100.
405. Eric Lichtblau, F.B.I. Abandons Disputed Test for Bullets from Crime Scenes, N.Y. TIMES, Sept. 2,2005, at A12.
406. Press Release, Fed. Bureau of Investigation, FBI Laboratory Announces Discontinuation of Bullet Lead Examinations (Sept. 1, 2005), available at http://www2.fbi.gov/pressrel/pressrel05/ bullet-lead-analysis.htm (search "Discontinuation of Bullet Lead Examinations" in search box).
407. John Solomon, FBI Forensic Test Full of Holes, WASH. POST, NOV. 18,2007, at Al.
408. See Ragland v. Commonwealth, 191 S.W.3d 569,580 (Ky. 2006) ("If the FBI Laboratory that produced the CBLA evidence now considers such evidence to be of insufficient reliability to justify continuing to produce it, a finding by the trial court that the evidence is both scientifically reliable and relevant would be clearly erroneous....);
409. demons v. State, 896 A.2d 1059, 1070, 1078 (Md. 2006) ("CBLA is not admissible under the Frye-Reed standard because it is not generally accepted within the scientific community as valid and reliable-Based on the criticism of the processes and assumptions underlying CBLA, we determine that the trial court erred in admitting expert testimony based on CBLA because of the lack of general acceptance of the process in the scientific community.");
410. State v. Behn, 868 A.2d 329,331 (N.J. Super. Q. App. Div. 2005) (finding the technique was "based on erroneous scientific foundations").
411. But see United States v. Davis, 406 F.3d 505, 509 (8th Cir. 2005) ("Davis's trial counsel cannot be said to be ineffective for failing to challenge the FBI's methodology on a basis that was not advanced by the scientific community at the time of trial.");
412. Commonwealth v. Fisher, 870 A.2d 864,871 (Pa. 2005) ("The CBLA evidence, at best, established a possible connection between Appellant and the bullets recovered from the victim's body.").
413. Solomon, supra note 227 (quoting Ken MacFadden).
414. Id.
415. see also supra text accompanying note 215 (quoting NAS CBLA Report).
416. 60 Minutes: Evidence of Injustice (CBS television broadcast Nov. 18,2007).
417. Id.
418. Solomon, supra note 227.
419. Id. at Al ("Hundreds of defendants sitting in prisons nationwide have been convicted with the help of an FBI forensic tool that was discarded more than two years ago. But the FBI lab has yet to take steps to alert the affected defendants or courts, even as the window for appealing convictions is closing-").
420. The Innocence Network and the National Association of Criminal Defense Lawyers have formed a task force and are working with the FBI to contact defense attorneys and convicts. See Vesna Jaksic, Faulty Bullet-Test Cases Finding Way to Court, NAT'L LJ., Feb. 25,2008 ("The task force is lining up pro bono commitments from several law firms to handle the cases.").
421. John Solomon, Leahy Pursues Forensic-Test Answers: Attorney General Is Told to Prepare for Senate Inquiry, WASH. POST, Nov. 22,2007, at A2 (quoting Senator Leahy). Leahy also wrote: The new revelations about bullet-lead analysis are just the latest examples of the Department's inadequate efforts to ensure that sound forensic testing is utilized to the maximum extent to find the guilty rather than merely obtain a conviction. Punishing the innocent is wrong and allows the guilty party to remain free.
422. Id.
423. See supra note 2.
424. As one article reported: Donald Kennedy, a Stanford scientist who helped select the report's authors, said federal law enforcement agencies resented "intervention" of mainstream science-especially the National Academy-in the courts. He said the National Institute of Justice ... tried to derail the forensic study by refusing to finance it and demanding to review the findings before publication. Solomon Moore, Science Found Wanting in Nation's Crime Labs, N.Y. TIMES, Feb. 5,2009, at Al.
425. Fiscal 2009 Appropriations: Commerce, Justice and Science Before the Subcomm. on Commerce, Justice, Sei. & Related Agencies of the S. Comm. on Appropriations, 110th Cong. (2008) (statement of Sen. Richard Shelby, Ranking Member, Subcomm. on Commerce, Justice, Sci. & Related Agencies), available at http://src.senate.gov/public/-files/radio/shelby4-10-08.mp3.
426. Id. ("On December the 17th and 18th of this past year, the Deputy Director of [NIJ] even convened a counterproductive forensics summit here in Washington. Many of the attendees deemed the summit a huge waste of more than $300,000 in taxpayer's funds.").
427. Id. ("I am not so sure the seriousness of this matter has the full attention of the leadership at the [DOJ]. I hope and encourage you to check into this matter.").
428. Moore, supra note 238.
429. See supra text accompanying notes 48-49.
430. HEMPEL, supra note 49, at 49.
431. POPPER, supra note 49, at 37 (emphasis omitted).
432. Brief of the New England Journal of Med. et al. as Amici Curiae Supporting Respondents at 2, Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) (No. 92-102). Peer review's "role is to promote the publication of well-conceived articles so that the most important review, the consideration of the reported results by the scientific community, may occur after publication."
433. Id. at 3.
434. NAS FORENSICS REPORT, supra note 2, at 15.
435. Id. at 8. Similar statements are found elsewhere in the Report.
436. See id. at 87.
437. See NAS VOICE ID REPORT, supra note 146.
438. See NAS DNA REPORT I, supra note 40;
439. NAS DNA REPORT II, supra note 40;
440. see also OFFICE OF TECH. ASSESSMENT, supra note 91.
441. See NAT'L RESEARCH COUNCIL, NAT'L ACAD, OF SCIS., THE POLYGRAPH AND LIE DETECTION (2003).
442. See NAS CBLA REPORT, supra note 186.
443. NAT'L RESEARCH COUNCIL, NAT'L ACAD, OF Sas., RESPONSIBLE SCIENCE: ENSURING THE INTEGRITY OF THE RESEARCH PROCESS 48 (1992);
444. see also NAS SHARING DATA REPORT, supra note 117, at 4 (advocating a "uniform principle for sharing integral data and materials expeditiously" or UPSIDE).
445. "The tobacco industry is the poster child for bending science, and its often path-breaking strategies will be featured throughout this book." McGARITY & WAGNER, supra note 127, at 27.
446. See RICHARD SAFERSTEIN, CRIMINALISTICS: AN INTRODUCTION TO FORENSIC SCIENCE 6 (5th ed. 1995) ("The oldest forensic laboratory in the United States is that of the Los Angeles Police Department, created in 1923 by August Vollmer, a police chief from Berkeley, California.");
447. John I. Thornton, Criminalistics-Past, Present, and Future, 11 LEX ET SCIENTIA 1, 23 (1975) ("In 1923, Vollmer served as Chief of Police of the City of Los Angeles for a period of one year. During that time, a crime laboratory was established at his direction.").