Improving forensic science through state oversight

Texas Law Review

Volumn 90, Issue 1, 2011, Pages 225-258

  Goldstein, Ryan M ^a  

^a NONE

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EID: 83155175612     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (341)

1. MICHAEL R. BROMWICH, FINAL REPORT OF THE INDEPENDENT INVESTIGATOR FOR THE HOUSTON POLICE DEPARTMENT CRIME LABORATORY AND PROPERTY ROOM 54-57 (2007), available at http://www.hpdlabinvestigation.org/reports/070613report.pdf.
2. Id. at 54.
3. Id. at 1 (Executive Summary) (stating that the Houston Police Department commissioned an investigation into the crime lab's activities). The investigative team included lawyers, forensic scientists, and statisticians. Id.
4. Id. at 153 n.212.
5. Id. at 186.
6. Id. at 32-33.
7. Id. at 3 (Executive Summary).
8. Id. at 4 (Executive Summary).
9. N.J. Schweitzer & Michael J. Saks, The CSI Effect: Popular Fiction About Forensic Science Affects the Public's Expectations About Real Forensic Science, 47 JURIMETRICS J. 357 (2007)
10. Reporting that the public's knowledge of forensic science from television shows like CSI may affect trials).
11. NAT'L INST. OF JUSTICE, STATUS AND NEEDS OF FORENSIC SCIENCE SERVICE PROVIDERS: A REPORT TO CONGRESS 2 (2006), available at https://www.ncjrs.gov/pdffiles1/nij/213420.pdf.
12. Id.
13. Erin Murphy, What "Strengthening Forensic Science" Today Means for Tomorrow: DNA Exceptionalism and the 2009 NAS Report, 9 L. PROBABILITY & RISK 7, 24 (2010).
14. Id.
15. Id. at 9 (explaining that, unlike DNA, the legitimacy of 'traditional forensic disciplines that had long served as the backbone of scientific evidence in the courtroom. went largely ignored').
16. Paul C. Giannelli, Wrongful Convictions and Forensic Science: The Need to Regulate Crime Labs, 86 N.C. L. REV. 163, 210 (2007)
17. DNA cases, however, make up only a small portion of crime lab work.'). NAT'L RESEARCH COUNCIL, NAT'L ACAD. OF SCIS., STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD (2009) [hereinafter NAS REPORT]. The report dedicates an entire chapter to analyzing validity concerns discipline-by-discipline.
18. Id. at 127-182.
19. Id. at 87.
20. The law's greatest dilemma in its heavy reliance on forensic evidence, however, concerns the question of whether-and to what extent-there is science in any given -forensic science' discipline.').
21. CAL. COMM'N ON THE FAIR ADMIN. OF JUSTICE, FINAL REPORT 58 (Gerald Uelmen ed., 2008)
22. ('The presentation of forensic science evidence is often the turning point in a criminal trial.').
23. NAS REPORT, supra note 16, at 81.
24. Id.
25. Id. at 190.
26. Id. at 82.
27. Giannelli, supra note 15, at 174-182.
28. Describing the repeated misconduct by Joyce Gilchrist, a forensic chemist in the Oklahoma City Police Department crime laboratory).
29. Jennifer L. Mnookin et al., The Need for a Research Culture in the Forensic Sciences, 58 UCLA L. REV. 725, 728 n.5 (2011)
30. Listing, "serious concerns" that arose at major laboratories across the country, including labs in Boston, Chicago, Houston, Los Angeles, New York, and San Francisco.
31. Giannelli, supra note 15, at 172-208.
32. Surveying failures by forensic science laboratories across the nation). Rogue analysts and systemic problems often merge. Id. at 172-74 _describing prosecutors' reliance on rogue analyst Fred Zain, the chief serologist in the West Virginia State Police Crime Laboratory, because other 'West Virginia serologists were incapable, in their view, of reaching the -right' results').
33. Paul C. Giannelli, Independent Crime Laboratories: The Problem of Motivational and Cognitive Bias, 2010 UTAH L. REV. 247, 250-257.
34. Describing motivational bias and multiple forms of cognitive bias in forensic science laboratories).
35. NAS REPORT, supra note 16, at 190.
36. Id. at 191.
37. Id. at 81.
38. Id. at 215.
39. Id.
40. Id. at 183-184, 190-191.
41. Kenneth E. Melson, Embracing the Path Forward: The Journey to Justice Continues, 36 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 197, 213-220 (2010).
42. Surveying responses from stakeholders in the forensic science community).
43. D. Michael Risinger, The NAS/NRC Report on Forensic Science: A Path Forward Fraught with Pitfalls, 2010 UTAH L. REV. 225, 236-239.
44. Doubting that political realities will permit the establishment of a new federal agency that oversees forensic science).
45. Murphy, supra note 12, at 23.
46. For an example of an organization arguing that the NAS Report endorsed (rather than criticized) forensic science methods, see Nat'l Dist. Attorneys Ass'n, NDAA Message to Prosecutors Regarding the National Academy of Sciences Forensic Science Report, WIN INTERACTIVE, http://www.wininteractive.com/NDAA/NAS.html. The message stresses that 'contrary to what some people are arguing, this report does not show that there are problems with forensic science. The science is valid, the science is good, and the science can be proven and replicated.'
47. Id.
48. Compare NAT'L DIST. ATT'YS ASS'N, RESOLUTION IN SUPPORT OF EFFORTS TO STRENGTHEN FORENSIC SCIENCE IN THE UNITED STATES 3 (2010), available at http://www.ndaa.org/pdf/NDAA_strengthen_forensic_science_resolution_4_10.pdf.
49. Opposing the creation of a new federal agency and questioning the effectiveness of removing crime laboratories from law enforcement or prosecutorial control).
50. NAT'L ASS'N OF CRIMINAL DEF. LAWYERS, PRINCIPLES AND RECOMMENDATIONS TO STRENGTHEN FORENSIC EVIDENCE AND ITS PRESENTATION IN THE COURTROOM 2 (2010), available at http://www.nacdl.org/sl_docs.nsf/issues/crimelab_resources/111FILE/NACDLStrengtheningForensicAustin.pdf
51. Endorsing all of the NAS Report's recommendations.
52. Murphy, supra note 12, at 23.
53. Infra subpart III(B).
54. 509 U.S. 579 (1993).
55. D. Michael Risinger, Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left on the Dock?, 64 ALB. L. REV. 99 (2000).
56. Finding that while civil defendants often win when challenging the reliability of plaintiffs' proffered expert evidence under Daubert, criminal defendants almost always lose when challenging the reliability of the prosecution's proffered expert evidence). Though not an exhaustive list, courts generally look at whether a theory or technique has been tested, whether it has been subject to peer review and publication, the known or potential error rate, the existence and maintenance of standards controlling its operation, and whether it has been generally accepted by the relevant scientific community.
57. Daubert, 509 U.S. at 593-594.
58. Jane Campbell Moriarty, Will History Be Servitude?: The NAS Report on Forensic Science and the Role of the Judiciary, 2010 UTAH L. REV. 299, 315.
59. 'In civil cases, courts seem quite up to the task of evaluating microbiology, teratology, and toxicology evidence. Yet when it comes to evaluating the shortcomings of lip prints and handwriting, courts are unable to muster the most minimal grasp of why a standardless form of comparison might lack evidentiary reliability or trustworthiness.').
60. Peter J. Neufeld, The (Near) Irrelevance of Daubert to Criminal Justice and Some Suggestions for Reform, 95 AM. J. PUB. HEALTH S107, S110-S111 (2005)
61. Arguing that poorly funded defense counsel, unskilled defense counsel, inadequate funding for defense experts, and lack of effective discovery require reforms 'upstream of the courthouse' rather than changes in judicial gatekeeping).
62. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2536 (2009).
63. Bullcoming v. New Mexico, 131 S. Ct. 2705, 2709-10 (2011)
64. Relying on Melendez-Diaz and holding that the accused has the right to confront the analyst who either certified that a forensic analysis adhered to certain procedures or actually performed the forensic analysis in question).
65. Paul C. Giannelli, The NRC Report and Its Implications for Criminal Litigation, 50 JURIMETRICS J. 53, 55 (2009).
66. Id. ('It remains to be seen. how much impact the [NAS Report] will have and how soon that influence will be felt.'); see also Moriarty, supra note 41, at 321-224 (surveying state and federal admissibility decisions since the publication of the NAS Report and concluding that no challenge 'seeking to exclude forensic science evidence on reliability grounds has succeeded'). Since the Daubert decision in 1993, there have been several notable cases of exclusion of forensic science evidence.
67. Paul C. Giannelli, Daubert and Forensic Science: The Pitfalls of Law Enforcement Control of Scientific Research, 2011 U. ILL. L. REV. 53, 60-64.
68. Surveying cases excluding handwriting analysis, fingerprint analysis, and firearms identification).
69. In perhaps the most famous case, Judge Pollack first ruled that fingerprint experts could not testify that two samples actually matched, only to reverse himself on reconsideration. United States v. Llera Plaza, 179 F. Supp. 2d 492 (E.D. Pa. 2002), vacated, motion granted on reconsideration, 188 F. Supp. 2d 549, 551-52, 576 (E.D. Pa. 2002).
70. Paul C. Giannelli, Regulating Crime Laboratories: The Impact of DNA Evidence, 15 J.L. & POL'Y 59 (2007)
71. Surveying the regulation of crime laboratories since the establishment of the first laboratory in the 1920s).
72. CAL, CRIME LAB. REVIEW TASK FORCE, AN EXAMINATION OF FORENSIC SCIENCE IN CALIFORNIA 47 (2009)
73. Discussing numerous funding structures used by California laboratories, including fee-for-service and annual-contract programs in which one jurisdiction provides forensic services for another). In 2005, the median staff size at the 389 publicly funded laboratories was only sixteen.
74. MATTHEW R. DUROSE, DEP'T OF JUSTICE, CENSUS OF PUBLICLY FUNDED FORENSIC CRIME LABORATORIES, 2005, at 2 & tbl.1 (2008).
75. The median number of services performed by publicly funded laboratories is only six.
76. Id. at 3.
77. Roughly half of publicly funded laboratories outsource some forensic services to private laboratories.
78. Id. at 7.
79. However, few data exist on the number of for-profit forensic science laboratories.
80. NAS REPORT, supra note 16, at 58.
81. NAS REPORT, supra note 16, at 78.
82. NAS REPORT, supra note 16, at 78.
83. Id. at 15.
84. Id. at 78-79.
85. Scientific Working Groups (SWGs) and Technical Working Groups (TWGs) are organized by discipline and supported by the FBI and other federal agencies. Scientific Working Groups, FED. BUREAU INVESTIGATION, http://www2.fbi.gov/hq/lab/html/swg.htm.
86. Jonathan J. Koehler, Forensic Science Reform in the 21st Century: A Major Conference, a Blockbuster Report and Reasons To Be Pessimistic, 9 L. PROBABILITY & RISK 1, 4-5 (2010) (describing organizations' opposition to the NAS Report).
87. NAS REPORT, supra note 16, at 218.
88. Contrasting crime scene investigators, who often lack college degrees above the associate level, with laboratory practitioners, who often have bachelor's degrees).
89. Supra note 11 and accompanying text.
90. NAS REPORT, supra note 16, at 59-60.
91. Cf. id. at 201 ('Adherence to standards. improves consistency.'). While some disciplines have developed standards, others have not, 'which contributes to questions about the validity of conclusions' and the reliability of results.
92. Id.
93. Supra note 24.
94. Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 VA. L. REV. 1, 14 (2009)
95. Investigating the forensic science testimony in 137 cases where the convicted individual was later exonerated by DNA testing). It should be noted, however, that forensic science has also contributed to many exonerations through postconviction DNA testing.
96. Facts on Post-Conviction DNA Exonerations, INNOCENCE PROJECT, http://www.innocenceproject.org/Content/Facts_on_PostConviction_DNA_Exonerations.php
97. Reporting that there have been 273 postconviction DNA exonerations in the United States).
98. Adam Liptak & Ralph Blumenthal, New Doubt Cast on Testing in Houston Police Crime Lab, N.Y. TIMES, Aug. 5, 2004, at A19. (describing the Houston crime lab scandal).
99. Editorial, DAs On Board, NEWS & OBSERVER (Raleigh, N.C.), Aug. 31, 2010, available at http://www.newsobserver.com/2010/08/31/655855/das-on-board.html
100. Commenting on the ongoing investigation into the State Bureau of Investigation's crime laboratory in North Carolina).
101. Joseph L. Peterson & Anna S. Leggett, The Evolution of Forensic Science: Progress Amid the Pitfalls, 36 STETSON L. REV. 621, 649-52 (2007)
102. Surveying investigative journalism's increasing role in exposing misconduct in laboratories).
103. Infra subpart III(A).
104. In this Note, I use the term oversight in the broadest sense possible. I do not mean mere supervision of a laboratory's budget and hiring practices. Oversight includes policy making on issues that affect reliability, validity, laboratory structure, and accreditation, as well as investigations into allegations of negligence or misconduct. Furthermore, oversight is not limited to supervision by a regulatory body; it includes any state institution that has the potential to affect crime laboratory behavior. See infra Part III.
105. U.S. CONST. amend. X (reserving to the states those powers not granted to the federal government).
106. MD. CODE ANN., HEALTH-GEN. § 17-2A-02 (LexisNexis 2009) (establishing oversight of forensic science laboratories in Maryland).
107. R.I. GEN. LAWS §§ 12-1.2-1 to -7 (2002 & Supp. 2010) (creating the Rhode Island State Crime Laboratory).
108. JAMES A. STRAZZELLA, AM. BAR ASS'N, THE FEDERALIZATION OF CRIMINAL LAW 7-12 (1998) (surveying the recent increase in federal criminal laws).
109. Wayne A. Logan, Horizontal Federalism in an Age of Criminal Justice Interconnectedness, 154 U. PA. L. REV. 257, 263 (2005).
110. Distributed through the Paul Coverdell Forensic Science Improvement Grants Program, these grants are a significant form of support but are only a small part of state and local laboratories' total budgets.
111. Compare OFFICE OF JUSTICE PROGRAMS, NAT'L INST. OF JUSTICE, FY2010 PAUL COVERDELL NATIONAL FORENSIC SCIENCE IMPROVEMENT ACT REPORT TO CONGRESS: FUNDING TABLE (2010), available at http://www.nij.gov/nij/topics/forensics/lab-operations/capacity/nfsia/2010-funding-table.xls (showing roughly 111 33 million of federal funds awarded in fiscal year 2010).
112. Stimating a total budget of 111 895 million for all state, county, and municipal laboratories in 2005). Still, laboratories in all fifty states received funding under the Coverdell program in fiscal year 2010. OFFICE OF JUSTICE PROGRAMS, supra.
113. NAS REPORT, supra note 16, at 71-75.
114. Describing sources of research funding and providing examples of awards.
115. FBI, FBI LABORATORY 2007: SUPPORTING FBI OPERATIONS FOR 75 YEARS (2007), available at http://www.fbi.gov/about-us/lab/ lab-annual-report-2007/fbi-lab-report-2007-pdf.
116. Describing FBI-state interaction by discipline, including how the FBI provides support and forensic analyses to state laboratories and teaches courses to state forensic scientists).
117. Jennifer L. Mnookin, The Courts, the NAS, and the Future of Forensic Science, 75 BROOK. L. REV. 1209, 1237 (2010).
118. Decrying the lack of any 'significant federal initiative vis-à-vis forensic science' despite the 'significant critique' presented in the NAS Report).
119. Infra notes 141-50 and accompanying text.
120. NAS REPORT, supra note 16, at 79-80.
121. Finding that the NSF and the NIST lack the experience and institutional capacity to establish an effective governance structure for forensic science).
122. NAT'L SCI. & TECH. COUNCIL, CHARTER OF THE SUBCOMMITTEE ON FORENSIC SCIENCE 1 (2009), available at http://www.forensicscience.gov/assets/pdfs/subcommittee_charter.pdf.
123. Among other duties, the subcommittee will develop strategies to 'enhanc[e] the validity and reliability of the federal government's undertakings in forensic science' and to 'help ensure that regional, state and local entities adopt best practices.'
124. Id. at 1.
125. This is understandable, since the federal government commissioned the study. But the NAS Report still failed to indicate ways in which state oversight could address the problems that the report identified.
126. Justice Brandeis articulated this concept in a celebrated quote: 'It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.'
127. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
128. DAVID L. SHAPIRO, FEDERALISM: A DIALOGUE 86-87 (1995)
129. Dscussing regional variations in subculture and positing that particular types of reform may take root more easily in different areas).
130. John F. Manning, What Divides Textualists from Purposivists?, 106 COLUM. L. REV. 70, 104 (2006).
131. 'Legislators may compromise on a statute that does not fully address a perceived mischief, accepting half a loaf to facilitate a law's enactment.').
132. SHAPIRO, supra note 80, at 87-88.
133. Surveying successful instances of state experimentation in various regulatory contexts).
134. Giannelli, supra note 15, at 170 (explaining that scandals have prompted states to enact reforms).
135. Fred C. Zacharias, Reform or Professional Responsibility as Usual: Whither the Institutions of Regulation and Discipline?, 2003 U. ILL. L. REV. 1505, 1509.
136. Observing that professional regulation of attorneys has historically been a state function).
137. JOSEPH FISCH, N.Y. OFFICE OF THE INSPECTOR GEN., REPORT OF INVESTIGATION OF THE TRACE EVIDENCE SECTION OF THE NEW YORK STATE POLICE FORENSIC INVESTIGATION CENTER 10-11 (2009)
138. Investigating misconduct in the trace evidence section of a state laboratory that was accredited and subject to board oversight by the state).
139. Infra subpart 3(C).
140. Infra subpart 3(E).
141. MD. CODE ANN., HEALTH-GEN. § 17-2A-02 (LexisNexis 2009) (moving oversight to the Department of Health and Mental Hygiene).
142. Infra subpart III(D).
143. Infra note 150 and accompanying text.
144. CAL. CRIME LAB. REVIEW TASK FORCE, supra note 47, at 11-14.
145. Describing three government-sponsored studies conducted in California between 1998 and 2004).
146. Id. at 1 (quoting CAL. PENAL CODE § 11062 (West 2011)).
147. Id. at 91.
148. Id. at 85-88.
149. Id. at 85.
150. Minutes, Cal. Crime Lab. Review Task Force 4 (June 3, 2010), available at http://ag.ca.gov/meetings/tf/pdf/TF_Minutes_060310.pdf.
151. Id. at 1-4.
152. Letter from William Thompson et al., Members, Cal. Crime Lab. Review Task Force (June 25, 2010), available at http://ag.ca.gov/meetings/tf/pdf/legislature_submit.pdf.
153. Id.
154. Recalling that the CA Task Force concluded that accreditation alone was insufficient and arguing that federal initiatives would not address state needs).
155. Id.
156. 'It is unfortunate that the membership of the Task Force was dominated by laboratory managers and representatives of organizations that operate crime laboratories.').
157. Larry A. Hammond, The Failure of Forensic Science Reform in Arizona, 93 JUDICATURE 227, 228 (2010)
158. Jennifer L. Mnookin, supra note 74, at 1210
159. Explaining that when academics have attempted to study questions of validity or reliability, 'they have sometimes faced limited cooperation, or even downright resistance, from the forensic science community.
160. CAL. CRIME LAB. REVIEW TASK FORCE, supra note 47, at 48.
161. Noting that all California crime laboratories surveyed expressed a need for more predictable, stable funding); Hammond, supra note 101, at 229 (hypothesizing that Arizona's financial crisis and general lack of funding could be the reason for state inaction). See generally DUROSE, supra note 48, at 2-7 (describing laboratory funding and the high frequency of backlogged requests for service).
162. DUROSE, supra note 48, at 3 (reporting that 91% of state laboratories are accredited). While accreditation of state-level laboratories is the norm, accreditation of laboratories serving counties and cities occurs less frequently. Id. (reporting that 67% of county laboratories and 62% of municipal laboratories are accredited). This 2005 report provides the most recent data; rates may have increased in recent years.
163. OKLA. STAT. ANN. tit. 74, § 150.37 (West Supp. 2011) ("[A]ll forensic laboratories. shall be ASCLD/LAB accredited").
164. DUROSE, supra note 48, at 3 (reporting that 78% of all crime laboratories were accredited by ASCLD/LAB and another 3% were accredited by other bodies).
165. History of the American Society of Crime Laboratory Directors Laboratory Accreditation Board (ASCLD/LAB), AM. SOC'Y CRIME LABORATORY DIRECTORS: LABORATORY ACCREDITATION BOARD, http://www.ascld-lab.org/about_us/history.html.
166. That the organizations work 'closely' may be an understatement. They occupy the same address in North Carolina, along with related consulting and lobbying groups.
167. Joseph Neff & Mandy Locke, Forensic Groups' Ties Raise Concerns, NEWS & OBSERVER (Raleigh, N.C.), Oct. 13, 2010, available at http://www.newsobserver.com/2010/09/26/703376/forensic-groups-ties-raiseconcerns.html.
168. Giannelli, supra note 46, at 75 (arguing that criticism of the close ties between ASCLD, ASCLD/LAB, and crime laboratory directors is "overblown").
169. ASCLD/LAB Accredited Laboratories, AM. SOC'Y CRIME LABORATORY DIRECTORS: LABORATORY ACCREDITATION BOARD, http://www.ascld-lab.org/labstatus/accreditedlabs.html (noting the total numbers as of September 12, 2011).
170. The remaining accredited laboratories are federal, international, and private. Id.
171. Id. (Delaware, Rhode Island, and South Dakota).
172. History of the American Society of Crime Laboratory Directors Laboratory Accreditation Board (ASCLD/LAB), supra note 106 (describing the establishment of ASCLD/LAB and its growth as an accrediting board in the following years).
173. NAT'L INST. OF JUSTICE, supra note 10, at 24 (reporting in 2006 only 260 accredited laboratories and 9 states without any accredited laboratories). There are now 387 accredited laboratories. See supra note 107 and accompanying text.
174. NAS REPORT, supra note 16, at 195.
175. Id.
176. Neff & Locke, supra note 106 (noting questions about ASCLD/LAB's independence and that the legislature encouraged the State Bureau of Investigation to 'shop for another accreditation group'). The current federal reform proposal requires that the federal government determine the standards and procedures for accreditation in consultation with 'qualified professional organizations.' Criminal Justice and Forensic Science Reform Act of 2011, S. 132, 112th Cong. § 202(a)(1) (2011) (as referred to S. Comm. on the Judiciary, Jan. 25, 2011). It also permits the federal government to designate an outside organization to perform the actual accreditation of laboratories under government oversight and review. Id. § 203(a)(2)(A). ASCLD/LAB could qualify for this proposed role.
177. See infra notes 235, 237 and accompanying text.
178. According to some estimates, over half of forensic scientists do not work inside traditional laboratories and are outside the scope of accreditation. Risinger, supra note 33, at 241; see also NAS REPORT, supra note 16, at 200 (recognizing a 'substantial gap' in accreditation since some disciplines are largely practiced outside of the laboratory).
179. Position Statement, Am. Soc'y of Crime Lab. Dirs.: Lab. Accreditation Bd., Position on Reporting of Blood Screening Tests in the 1980's and 1990's 2 (Feb. 18, 2011), available at http://ascld-lab.org/statements/Position_Statement_Blood_Testing.pdf.
180. id. at 1 (reporting that a laboratory accused of issuing 'inaccurate' and 'misleading' reports complied with ASCLD/LAB accreditation standards on every inspection during the time period in question).
181. NAS REPORT, supra note 16, at 195 ('[A]ccreditation does not mean that accredited laboratories do not make mistakes. but rather, it means that the laboratory adheres to an established set of standards of quality and relies on acceptable practices within these requirements.').
182. Craig M. Cooley & Gabriel S. Oberfield, Increasing Forensic Evidence's Reliability and Minimizing Wrongful Convictions: Applying Daubert Isn't the Only Problem, 43 TULSA L. REV. 285, 376-378 (2007)
183. ("[A] grant of accreditation is insufficient to provide external and independent oversight.").
184. Jeff Rodzen, et al., CAL. ASS'N OF CRIMINALISTS & CAL. ASS'N OF CRIME LAB. DIRS., AB-1079 AND THE CALIFORNIA CRIME LABORATORY SYSTEM: STATEWIDE FORENSIC SCIENCE OVERSIGHT 4-5 (2010), available at http://www.cacnews.org/policies/CACLD-CAC%20Oversight%20paper%20final%20072810.pdf
185. Arguing that accreditation and the nature of the criminal justice system provide sufficient oversight in California). Those in favor of an accreditation-only approach to oversight often exaggerate the oversight provided by the structure of the criminal justice system. Compare id. at 5 ('[T]he very nature of the criminal justice system provides its own informal, yet powerful, oversight of crime laboratories' performance through the discovery process, review of crime laboratory work by defense experts, and court -gate-keeper' decisions.'), with Neufeld, supra note 42, at S108-11 (questioning the role the criminal justice system and judicial gatekeeping can play in improving forensic science.
186. About the Office of Forensic Services, N.Y. DIVISION OF CRIM. JUST. SERVICES, http://criminaljustice.state.ny.us/forensic/aboutofs.htm.
187. About DFS, VA. DEPARTMENT OF FORENSIC SCI., http://www.dfs.virginia.gov/about/index.cfm.
188. The Virginia General Assembly removed the Department of Forensic Science from law enforcement in response to several instances of misconduct and subsequent exonerations.
189. Giannelli, supra note 15, at 194-195.
190. MD. CODE ANN., HEALTH-GEN. § 17-2A-12 (LexisNexis 2009) (establishing the Forensic Laboratory Advisory Committee, an advisor to the Secretary of the Department of Health and Mental Hygiene).
191. Forensic Laboratory Advisory Committee, MD. ST. ARCHIVES (Mar. 21, 2011), http://www.msa.md.gov/msa/mdmanual/26excom/html/15forensiclab.html.
192. VA. CODE ANN. § 9.1-1110(A)(1), (4) (2006).
193. Id. § 9.1-1110(A)(7).
194. Id. § 9.1-1113(B).
195. Id. § 9.1-1113(C).
196. N.Y. EXEC. LAW § 995-a(1)(b), (2) (McKinney 1996).
197. Id. § 995-a(2)(e).
198. Id. § 995-a(2)(d).
199. Giannelli, supra note 46, at 78.
200. Terry Goddard, Terry Goddard Appointing New Panel to Assist State Crime Labs (Nov. 20, 2007), available at http://www.azag.gov/press_releases/nov/2007/TGAppointsNewPanelToAssistStateCrimeLabs.pdf.
201. MINN. STAT. ANN. § 299C.156 (West 2007) (establishing the Forensic Laboratory Advisory Board, located within the Bureau of Criminal Apprehension, and in turn within the Department of Public Safety).
202. MO. ANN. STAT. § 650.059.1 (West Supp. 2011) (creating the Crime Laboratory Review Commission, located within the Department of Public Safety). The enabling statute envisions 'independent review of any state or local Missouri crime laboratory receiving state-administered funding.' Id. However, the commission is located within a law enforcement agency, so its independence is questionable.
203. Forensic Science Laboratory Advisory Board, MONT. DEPARTMENT OF JUST., http://www.doj.mt.gov/enforcement/crimelab/#advisoryboard.
204. N.M. STAT. ANN. § 29-16-5 (Supp. 2004) (establishing the DNA Oversight Committee).
205. R.I. GEN. LAWS § 12-1-1-3 (2002) (creating the State Crime Laboratory Commission).
206. WASH. REV. CODE ANN. § 43.103.030 (West 2007) (establishing the Washington State Forensic Investigations Council).
207. id. (charging the Washington State Forensic Investigations Council with oversight of the state's forensic pathology program). For an example of an investigation by an oversight board.
208. FORENSIC INVESTIGATIONS COUNCIL, REPORT ON THE WASHINGTON STATE TOXICOLOGY LABORATORY AND THE WASHINGTON STATE CRIME LABORATORY (2008), available at http://www.corpus-delicti.com/ficinvestigativeteport04-17-08.pdf.
209. FISCH, supra note 85, at 1 (explaining that the New York State Commission on Forensic Science designated the State Inspector General to conduct an independent investigation).
210. GREGORY W. SULLIVAN, OFFICE OF THE INSPECTOR GEN., REVIEW OF THE DNA TESTING OPERATIONS AND THE ASSOCIATED MANAGEMENT STRUCTURE OF THE EXECUTIVE OFFICE OF PUBLIC SAFETY AND SECURITY'S FORENSIC SERVICES GROUP 1 (2009), available at http://www.mass.gov/ig/publ/forensic_lab_rpt.pdf.
211. 42 U.S.C. § 3797k(4) (2006).
212. Id.
213. OFFICE OF THE INSPECTOR GEN., U.S. DEP'T OF JUSTICE, REVIEW OF THE OFFICE OF JUSTICE PROGRAMS' FORENSIC SCIENCE IMPROVEMENT GRANT PROGRAM 7-11 (2005), available at http://www.justice.gov/oig/reports/OJP/e0602/final.pdf.
214. Id. at 10-11.
215. OFFICE OF THE INSPECTOR GEN., U.S. DEP'T OF JUSTICE, REVIEW OF THE OFFICE OF JUSTICE PROGRAMS' PAUL COVERDELL FORENSIC SCIENCE IMPROVEMENT GRANTS PROGRAM 7 (2008), available at http://www.justice.gov/oig/reports/OJP/e0801/final.pdf.
216. NAT'L INST. OF JUSTICE, U.S. DEP'T OF JUSTICE, SOLICITATION: PAUL COVERDELL FORENSIC SCIENCE IMPROVEMENT GRANTS PROGRAM 5-8 (2010), available at http://www.ncjrs.gov/pdffiles1/nij/sl000921.pdf.
217. Id. at 5.
218. Id.
219. Gabriel S. Oberfield, Research Analyst, Innocence Project, to Members of the Task Force to Conduct a Review of California's Crime Laboratory System 2-3 (Apr. 2, 2008), available at http://www.ag.ca.gov/meetings/tf/pdf/innocence_project_letter.pdf.
220. 'Enforcement of [the external investigation] requirement undoubtedly will be more robust in coming years, and the failure of California labs to comply with the provision could put Coverdell funding in jeopardy.'
221. CAL. COMM'N ON THE FAIR ADMIN. OF JUSTICE, supra note 18, at 62 (surveying California grant recipients and concluding that in 'nearly every instance, the independent auditing entity described was the Internal Affairs Division of the County Sheriff's Office or Police Department involved'). The commission recommended that district attorneys in each county evaluate allegations of negligence or misconduct and conduct an independent investigation when necessary. Id. at 63. However, delegating 'independent' authority to the state's district attorneys does not necessarily ensure independence. See Letter from Gabriel S. Oberfield to Members of the Task Force to Conduct a Review of California's Crime Laboratory System, supra note 149, at 5 (describing internal investigations as ineffective due to conflicts of interest and questioning whether a district attorney's office could ever provide independent, external oversight).
222. Bromwich, supra note 1, at 114-15, 150-151.
223. Reporting significant and pervasive problems with the analysis and reporting of results in a large portion of serology and DNA cases in Houston's crime laboratory); FISCH, supra note 85, at 52-53 (reporting misconduct in the trace evidence section of the Forensic Investigation Center operated by the New York State Police); FORENSIC INVESTIGATIONS COUNCIL, supra note 138, at 10-11 (reporting that the Washington State Crime Laboratory's toxicology manager filed false certifications on tests that were conducted by another analyst).
224. BROMWICH, supra note 1, at 186 ("The purpose of outside scrutiny is to shed light on a laboratory's practices, to focus attention on existing deficiencies and potential problems, and to broaden the perspective of laboratory analysts.").
225. FISCH, supra note 85, at 1 (recounting the flawed internal inquiry conducted by laboratory management that ignored valid complaints about the training and supervision of the guilty laboratory technician); see also Letter from Gabriel S. Oberfield to Members of the Task Force to Conduct a Review of California's Crime Laboratory System, supra note 149, at 4 ('We have yet to observe a local police department or crime laboratory internal affairs division conduct a crime lab investigation completely free from influence, if not supervision, by its upper laboratory management.'). Internal investigations in Montana, Virginia, and New York all suffered from conflicts of interest. Id.
226. FISCH, supra note 85, at 111-12 (recommending that the independent investigator should be 'immediately notified' when allegations of misconduct arise).
227. See, e.g., id. (recommending technical review, independent investigations, and additional training in order to improve quality control in a forensic laboratory).
228. TEX. CODE CRIM. PROC. ANN. art. 38.01, §§ 1, 4(a)(3) (West Supp. 2010); About Us, TEX. FORENSIC SCI. COMMISSION, http://www.fsc.state.tx.us/about.html. In Texas, a forensic analysis or expert testimony relating to forensic evidence is only admissible in court if the crime laboratory conducting the analysis was accredited. TEX. CODE CRIM. PROC. ANN. art. 38.35(d)(1) (West Supp. 2010).
229. TEX. CODE CRIM. PROC. ANN. art. 38.01, § 4(b)(1) (West Supp. 2010). The TFSC recently published its first final report.
230. TEX. FORENSIC SCI. COMM'N, REPORT OF THE TEXAS FORENSIC SCIENCE COMMISSION: WILLINGHAM/WILLIS INVESTIGATION (2011), available at http://www.fsc.state.tx.us/documents/FINAL.pdf.
231. TEX. FORENSIC SCI. COMM'N, POLICIES AND PROCEDURES 8 (2011), available at http://www.fsc.state.tx.us/documents/D_PoliciesandProcedures042811.pdf.
232. Id. at 6-8 (describing the complaint-screening process).
233. Id. at 8.
234. TEX. CODE CRIM. PROC. ANN. art. 38.01, § 3(a) (West Supp. 2010).
235. See id. (listing the qualifications of individual members).
236. Id. § 3(a)(1)(B)-(C).
237. Id. § 3(c).
238. James C. McKinley, Jr., Texas Governor Fires Chairman of Forensic Science Committee, N.Y. TIMES, Oct. 1, 2009, at A24.
239. Dscribing Governor Rick Perry's decision to replace the presiding officer of the commission two days before the commission was to hear evidence that Willingham, who had been executed by the state five years earlier, was innocent.
240. Tex. Att'y Gen. Op. No. GA-0866 (2011), available at https://www.oag.state.tx.us/opinions/opinions/50abbott/op/2011/htm/ga-0866.htm
241. Prohibiting the TFSC from considering evidence that was tested or offered into evidence prior to September 1, 2005, and from considering fields of forensic analysis expressly excluded from the statutory definition of forensic analysis, including latent print examination, digital evidence, and alcohol breath testing). The opinion effectively ended the pending part of the Willingham investigation-whether there was negligence or misconduct committed by forensic scientists-and greatly limits the TFSC's ability to review older cases. See TEX. FORENSIC SCI. COMM'N, supra note 158, at 6 (explaining that a pending attorney general opinion precluded any findings on negligence in the Willingham case).
242. Brandi Grissom, New Head of Forensic Science Panel Takes on Arson Case, TEX. TRIB. (July 22, 2011), http://www.texastribune.org/texas-dept-criminal-justice/texas-forensic-science-commission/new-head-of-forensic-science-panel-takes-on-arson/.
243. McKinley, supra note 165 (quoting the co-director of the Innocence Project, who likened Governor Perry's actions to "Nixon firing Archibald Cox to avoid turning over the Watergate tapes").
244. Rick Casey, Op-Ed., Willingham: Scientists vs. Lawyers, HOUS. CHRON., Jan. 9, 2011, at B1, available at http://www.chron.com/disp/story.mpl/metropolitan/casey/7373600.html
245. Questioning whether a member serving simultaneously as presiding officer and prosecutor could effectively lead the 'scientific' commission while also vigorously defending criminal convictions). The Texas State Senate was unwilling to reconfirm the prosecutor's appointment. Mike Ward, Williamson Prosecutor Lacks Votes to Lead Panel, AUSTIN AM.-STATESMAN, Mar. 10, 2011, at A1.
246. Governor Perry subsequently appointed a medical examiner to chair the TFSC. Forensic Panel Gets New Leader After Willingham Case, HOUS. CHRON. (July 1, 2011), http://www.chron.com/news/houston-texas/article/Forensic-panel-gets-new-leader-after-Willingham-2081564.php.
247. There is optimism that the commission can move past the political wrangling of its early years. See Grissom, supra note 166 (describing legislators' optimism that the new chairman 'will move the commission past the political pressures that have beleaguered its work').
248. See, e.g., CAL. COMM'N ON THE FAIR ADMIN. OF JUSTICE, supra note 18, at 63 (determining that creating a new forensic science commission in California based on the TFSC model would be an unnecessary 'new level of bureaucracy'). But see Letter from Gabriel S.
249. Oberfield to Members of the Task Force to Conduct a Review of California's Crime Laboratory System, supra note 149, at 3 (suggesting that local investigations into misconduct or negligence would create more inefficiency as opposed to establishing new, statewide oversight).
250. It is important to note that when used in subsequent criminal proceedings, TFSC reports are not prima facie evidence of the information they contain. TEX. CODE CRIM. PROC. ANN. art. 38.01, § 4(e) (West Supp. 2010). Thus, the TFSC does not offer a direct remedy to the wrongfully convicted. Nothing, however, precludes a party in a subsequent proceeding from at least offering a report as evidence.
251. Id. § 4(a)(3) (authorizing the TFSC to investigate any allegation of professional negligence or misconduct).
252. Texas Forensic Science Commission Complaint Form: Individual, TEX. FORENSIC SCI. COMMISSION, 1, 3 (2009), http://www.fsc.state.tx.us/documents/D_ComplaintForm.pdf.
253. The TFSC also has discretionary authority to perform follow-up evaluations to review the implementation of its recommendations. TEX. CODE CRIM. PROC. ANN. art. 38.01, § 4(b)(2)(B)(i) (West Supp. 2010).
254. See, e.g., N.C. GEN. STAT. § 15A-1461 (Supp. 2010) (establishing an innocence commission as 'an extraordinary procedure to investigate and determine credible claims of factual innocence').
255. The Causes of Wrongful Conviction, INNOCENCE PROJECT, http://www.innocenceproject.org/understand/.
256. Garrett & Neufeld, supra note 63 (cataloging the forensic science testimony used in the convictions of 137 people who were later exonerated by postconviction DNA testing).
257. See id. at 97 ('[T]he adversary system cannot be depended upon as an adequate safeguard. [J]udges did not remedy most errors brought to their attention.'); see also supra notes 38-45 and accompanying text.
258. About Us, N.C. INNOCENCE INQUIRY COMMISSION, http://www.innocencecommission-nc.gov/about.html; see also David Wolitz, Innocence Commissions and the Future of Post-Conviction Review, 52 ARIZ. L. REV. 1027, 1049-53 (2010) (describing the NCIIC in detail).
259. INNOCENCE COMM'N, MISSION STATEMENT, OBJECTIVES, AND OPERATING PROCEDURE 1 (2010), available at http://www.flcourts.org/gen_public/bin/Commission-Mission.rtf
260. Describing the Florida Innocence Commission as 'a collegial body' that 'identif[ies] the common causes of wrongful convictions, and. recommend[s] procedures to decrease the possibility of these convictions in the future'.
261. Wolitz, supra note 177, at 1046-1047 (noting that several states have established commissions to "study the problem of post-conviction review" but that "none of them had the mandate to investigate individual cases").
262. id. at 1053 ('The NCIIC is the first commission of its kind in the United States, and almost every aspect-from its inception to its composition to its procedures-can be fairly debated.').
263. id. at 1033 (arguing that the NCIIC could reframe the discussion about wrongful convictions and recommending that the NCIIC serve as a model for other states).
264. N.C. GEN. STAT. §§ 15A-1460, 1466 (Supp. 2010). A claim of factual innocence is defined as a claim on behalf of a living person convicted of a felony in the General Court of Justice of the State of North Carolina, asserting the complete innocence of any criminal responsibility for the felony for which the person was convicted and for any other reduced level of criminal responsibility relating to the crime, and for which there is some credible, verifiable evidence of innocence that has not previously been presented at trial or considered at a hearing granted through postconviction relief.
265. Id. § 15A-1460(1).
266. Id. § 15A-1463(a)(1)-(2), (4)-(5).
267. Id. § 15A-1467(a).
268. N.C. INNOCENCE INQUIRY COMM'N, RULES AND PROCEDURES (2010), available at http://www.innocencecommission-nc.gov/rules.html.
269. N.C. GEN. STAT. § 15A-1467(d) (Supp. 2010).
270. N.C. INNOCENCE INQUIRY COMM'N, supra note 185, at 8.
271. N.C. GEN. STAT. § 15A-1468(c) (Supp. 2010).
272. Id. § 15A-1469(d).
273. Id. § 15A-1469(h).
274. Case Progression Flowchart, N.C. INNOCENCE INQUIRY COMMISSION, http://www.innocencecommission-nc.gov/chart.html.
275. N.C. GEN. STAT. § 15A-1470 (Supp. 2010).
276. Wolitz, supra note 177, at 1053 & n.196.
277. Mandy Locke, In Taylor Case, Blood is the Issue, NEWS & OBSERVER (Raleigh, N.C.), Feb. 11, 2010, available at http://www.newsobserver.com/2010/02/11/332181/in-taylor-case-blood-is-the-issue.html.
278. Id.
279. Id.
280. Id.
281. Id.
282. Mandy Locke, et al., Scathing SBI Audit Says 230 Cases Tainted by Shoddy Investigations, NEWS & OBSERVER (Raleigh, N.C.), Aug. 19, 2010, available at http://www.newsobserver.com/2010/08/19/635632/scathing-sbi-audit-says-230-cases.html.
283. Id.
284. Joseph Neff, Perdue Signs Crime Lab Law, NEWS & OBSERVER (Raleigh, N.C.) (Apr. 1, 2011), http://www.newsobserver.com/2011/04/01/1096213/perdue-signs-crime-lab-law.html.
285. (Listing reforms that include mandating that the crime laboratory disclose all notes, data, and test results; creating an independent scientific advisory board; removing ASCLD/LAB as the sole accrediting authority for the laboratory; and changing the name of the laboratory from SBI Crime Laboratory to North Carolina Crime Laboratory). The North Carolina General Assembly is also considering additional reforms, such as removing the state forensic science laboratory from law enforcement control. Id.
286. Wolitz, supra note 177, at 1082 (arguing that the judicial system affords too much value to finality "at the price of too many miscarriages of justice").
287. Id. at 1081-82 (viewing ICs as a new remedy rather than a "fix" for habeas corpus and other postconviction procedures).
288. D. Michael Risinger, et al., The Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectation and Suggestion, 90 CALIF. L. REV. 1, 43 (2002)
289. ('The establishment of freestanding government forensic laboratories. would require such a revolution in thinking and organization, and diminish so many established bureaucratic empires, that it would take a generation of patient lobbying to have a chance of success.').
290. Gabriel S. Oberfield, Members of the Task Force to Conduct a Review of California's Crime Laboratory System, supra note 149, at 3.
291. ('Uniting [examples of effective oversight] is a recognition that significant errors are more likely to be revealed by bodies that are distinctly separate from the employees or management of the labs they supervise.'). But see Michael J. Saks et al., Model Prevention and Remedy of Erroneous Convictions Act, 33 ARIZ. ST. L.J. 665, 698-700 (2001) (proposing that the removal of both laboratories and oversight from law enforcement is necessary to emphasize the science in forensic science and free forensic science of police culture and police personnel).
292. NAT'L DIST. ATT'YS ASS'N, supra note 35, at 3 (arguing that organizational and geographical proximity lead to more effective criminal investigations).
293. Supra subpart III(C) (providing examples of the composition of similar existing boards).
294. Giannelli, supra note 15, at 229 (arguing that it is 'critical' that any oversight board include research scientists and the defense bar among its members).
295. See supra subpart III(C) (discussing independent oversight boards).
296. This definition is based on the one provided by the Texas Code of Criminal Procedure but eliminates all of the exceptions provided by the Code's definition. See TEX. CODE CRIM. PROC. ANN. art. 38.35(a)(4) (West Supp. 2010) (excluding tests such as latent-fingerprint examination and digital evidence from the definition of forensic analysis).
297. See N.Y. EXEC. LAW § 995(1) (McKinney Supp. 2011) (excluding latent-fingerprint analysis by a police agency from the definition of 'forensic laboratory'). Disciplines such as fingerprint analysis, which are largely performed outside of the laboratory, are often outside of the scope of accreditation and other quality control mechanisms. See CAL. CRIME LAB. REVIEW TASK FORCE, supra note 47, at 82 (reporting that forensic units outside of crime laboratories do not participate in accreditation and that most fingerprinting takes place outside of crime laboratories).
298. See, e.g., OKLA. STAT. ANN. tit. 74, § 150.37(d) (West Supp. 2011) (requiring accreditation of public laboratories but creating exceptions for breath testing for alcohol, latent-fingerprint analysis, examination of digital evidence, and crime scene processing).
299. Id. § 150.37(A)(3), (D) (requiring accreditation only for public laboratories).
300. Opponents may argue that such broad oversight would interfere with the ability of police to investigate crimes. Such a debate is beyond the scope of this However, the legal and scientific communities should examine the extent to which forensic science plays a role in investigations-even before the evidence arrives at a traditional laboratory.
301. Risinger, et al., supra note 203, at 45-47.
302. Blind testing involves limiting the amount of information that flows to the analyst from law enforcement, laboratory management, coworkers, and other sources. Id. at 45. It includes strategies such as formulating questions in the least suggestive way and limiting analyst access to only necessary information about the alleged crime.
303. Id. at 45-46.
304. Id. at 47-50.
305. Evidence lineups would combat the tendency to make 'false positive errors' (since most evidence that enters the laboratory is inculpatory) by presenting 'foils' for testing along with the actual specimen. Id.
306. NAS REPORT, supra note 16, at 206-08. Proficiency testing involves verifying the results of an analyst or an entire laboratory. Id. at 206-07. In blind proficiency testing, the analyst does not know that the sample he is analyzing is a test rather than evidence from an actual criminal investigation. Id. at 207. While the majority of laboratories engage in proficiency testing, blind proficiency testing is not required and is only used by 26% of laboratories. Id. at 208.
307. Id. at 208-10. Unlike accreditation, which addresses the competence of an entire laboratory, certification focuses on the individual analyst. Id. at 208. The forensic science community generally supports certification but does not require it. Id. at 209; see also CAL. CRIME LAB. REVIEW TASK FORCE, supra note 47, at 45 (recommending that the state require certification of all analysts).
308. NAS REPORT, supra note 16, at 212-214.
309. See supra note 129 and accompanying text.
310. See supra note 103 and accompanying text (noting that county and municipal laboratories are accredited less frequently than state laboratories).
311. The general lack of training and education appears to be widespread. For example, almost half of the criminal law judges in Texas responding to a survey receive no yearly forensic science training, and many judges have requested more training on reliability standards for the admission of scientific evidence.
312. TEX. CRIMINAL JUSTICE INTEGRITY UNIT, 2009 ANNUAL REPORT OF ACTIVITIES 6 (2009), available at http://www.cca.courts.state.tx.us/tcjiu/reports/TCJIU-2009-report.pdf.
313. The Illinois State Police, for example, perform forensic science services for 1,200 local and county police agencies in all 102 Illinois counties, comprising 98% of the services it provides. NAS REPORT, supra note 16, at 57-58; see also CAL. CRIME LAB. REVIEW TASK FORCE, supra note 47, at 54-55 (recommending the regional consolidation of rarely used disciplines but noting that consolidation could increase inefficiencies when one piece of evidence requires multiple types of tests or when the distance to the regional laboratory is too great).
314. For a discussion of the overall grant program, see supra notes 141-50 and accompanying text.
315. CAL. COMM'N ON THE FAIR ADMIN. OF JUSTICE, supra note 18, at 62 (noting that not all laboratories receive Coverdell funds and therefore will not necessarily have investigatory oversight in place).
316. See supra notes 23-25 and accompanying text.
317. See supra note 150 and accompanying text (discussing the importance of independent investigations).
318. See supra subpart III(F).
319. See supra note 174 and accompanying text (noting that forensic science errors are not the only cause of wrongful convictions).
320. See supra note 170 and accompanying text (noting that the TFSC's narrower model does not provide a judicial remedy for the wrongfully convicted).
321. Many states require state bodies like oversight boards to hold public meetings and publish meeting agendas and minutes. See, e.g., CAL. GOV'T CODE § 11123 (West 2005); N.Y. PUB. OFF. LAW §§ 103-07 (McKinney 2008); TEX. GOV'T CODE ANN. § 551.002 (West 2004) (all creating open-meetings requirements for state boards). However, a body that investigates specific public complaints, such as the TFSC or the NCIIC, engages in a different way than one that merely allows the public to participate in open meetings.
322. Cf. FORENSIC LAB. ADVISORY BD., STATE OF MINN., LEGISLATIVE REPORT 1 (2011), available at http://archive.leg.state.mn.us/docs/2011/mandated/110100.pdf (advising the Minnesota State Legislature that the board 'continues to lack the financial resources necessary to carry out its principal missions').
323. See supra note 102 and accompanying text.
324. See, e.g., Strengthening Forensic Science in the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 4 (2009) (statement of Sen. Jeff Sessions) ('But I don't think we should suggest that those proven scientific principles that we've been using for decades are somehow uncertain.').
325. See, e.g., Mnookin, supra note 74, at 1209 (discussing the public's misperception of forensic science's accuracy, which stems largely from inaccurate depictions on television shows like CSI).
326. Dean Gialamas, President, Am. Soc'y of Crime Lab. Dirs., to Patrick J. Leahy, Chairman, Senate Comm. on the Judiciary 3 (Mar. 17, 2009), available at http://www.ascld.org/files/releases/090317%20ASCLD%20Letter%20to%20Congress%20FINAL.pdf
327. ('[A]lthough the validation documentation may not be readily available in or published in literature by some laboratories, the lack of that data does not mean the science is unreliable.'). While ASCLD officially recognized the NAS Report as 'in-depth,' it did not endorse its call for a new federal agency or removal from crime laboratories from 'parent' law enforcement agencies. Id. at 2-3. Instead, ASCLD viewed the core problem as a general need for 'standardization in education, training and forensic science delivery' and for adequate, consistent funding. Id. at 1. ASCLD proposes mandatory accreditation as the key to oversight, since accreditation 'provides confidence and assurance to a parent organization, its employees, the criminal justice community, and the public that the operation can meet the most comprehensive forensic quality management system requirements.' Id. at 2. Given the close ties between ASCLD and ASCLD/LAB, it is unsurprising that ASCLD proposes a prominent oversight role for ASCLD/LAB. See supra notes 106-19 and accompanying text.
328. Neufeld, supra note 42, at S112 ("Most of the crime laboratories are resistant to any oversight.").
329. It is difficult to quantify the link between crime laboratory directors and organizations that resist change. Anecdotally, it appears strong. See, e.g., Minutes, Cal. Crime Lab. Review Task Force, supra note 96, at 3 (reporting that CA Task Force member Bob Jarzen, on behalf of the California Association of Crime Laboratory Directors, 'opined' that any new, state-level oversight would be duplicative of ASCLD/LAB programs). Not surprisingly, Mr. Jarzen served on the Board of Directors of ASCLD.
330. Robert Adolph Jarzen, Curriculum Vitae 5 (Dec. 27, 2007), available at http://ag.ca.gov/meetings/tf/pdf/TF_JARZEN.pdf.
331. The fact that ASCLD recommends accreditation by their sister organization, ASCLD/LAB, as the solution to forensic science's problems illustrates a similar conflict of interest. See supra note 235.
332. See Risinger, supra note 33, at 239 (describing the power of the law enforcement lobby on the national level).
333. See supra note 166 and accompanying text.
334. See supra notes 165, 167 and accompanying text.
335. William C. Thompson, Beyond Bad Apples: Analyzing the Role of Forensic Science in Wrongful Convictions, 37 SW. U. L. REV. 1027, 1028 (2008).
336. ('We tend to think that replacing the bad apples solves the underlying problem without considering why we have so many bad apples in the first place, why we find more bad apples in some environments than others, and why the apples repeatedly seem to go bad in the same familiar ways.').
337. Criminal Justice and Forensic Science Reform Act of 2011, S. 132, 112th Cong. § 201(a) (as referred to S. Comm. on the Judiciary, Jan. 25, 2011) (requiring accreditation only for laboratories receiving federal funding).
338. See supra note 71 and accompanying text.
339. See S. 132, § 401 ('[T]he Board shall recommend to the Director a comprehensive strategy for fostering and improving peer-reviewed scientific research relating to the forensic science disciplines, including research addressing issues of accuracy, reliability, and validity in the forensic science disciplines.').
340. See supra Part II.
341. See, e.g., Minutes, Cal. Crime Lab. Review Task Force, supra note 96, at 1 ('A key question is whether California can be more productive than the federal government on oversight issues.').