Remapping the path forward: Toward a systemic view of forensic science reform and oversight

Texas Law Review

Volumn 91, Issue 5, 2013, Pages 1051-1118

  Laurin, Jennifer E ^a  

^a UNIVERSITY OF TEXAS SCHOOL OF LAW   (United States)

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EID: 84876223013     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (494)

1. See, e.g., Williams v. Illinois, 132 S. Ct. 2221, 2227 (2012) (commenting that other forms of proof are less reliable than DNA evidence)
2. Davis v. Mississippi, 394 U.S. 721, 727 (1969) (" [F]ingerprinting is an inherently more reliable and effective crime-solving tool than eyewitness identifications or confessions and is not subject to such abuses as the improper line-up and the 'third degree.'")
3. Kenworthey Bilz, Self-Incrimination Doctrine Is Dead; Long Live Self-Incrimination Doctrine: Confessions, Scientific Evidence, and the Anxieties of the Liberal State, 30 Cardozo L. Rev. 807, 834 (2008) (arguing that "both confessions and eyewitness identifications suffer from a high risk of failing to provide inculpatory evidence on a guilty suspect")
4. President George W. Bush, State of the Union Address (Feb. 2, 2005), available at http://www.msnbc.msn.com/id/6902913/ns/politics-state_of_the_union/t/full-text-state-union-speech (calling for the expanded use of DNA evidence to prevent wrongful convictions).
5. See Browse Cases, Nat'l Registry Exonerations, http://www.law.umich.edu/special/exoneration/Pages/browse.aspx (showing 1,060 total exonerations since 1989 and 239 in cases involving false or misleading science as of January 28, 2013). DNA exonerations that reveal the error of previous expert opinion provide the most dramatic demonstration of erroneous science.
6. See BRANDON L. GARRETT, Convicting The Innocent: When Criminal Prosecutions Go Wrong 89-90 (2011) (reporting that 61% of trials in DNA exonerations featured invalid conclusions drawn from the evidence)
7. Michael J. Saks & Jonathan J. Koehler, The Coming Paradigm Shift in Forensic Identification Science, 309 Science 892, 892-95 (2005) (arguing that a model for scientifically sound identification science, changing legal admissibility standards for expert testimony, high error rates across forensic science, and the discovery of wrongful convictions are all driving a paradigm shift in forensic identification science)
8. Jonathan Saltzman & Mac Daniel, Man Freed in 1997 Shooting of Officer, BOS. GLOBE, Jan. 24, 2004, http://www.boston.com/news/local/articles/2004/01/24/man_freed_in_1997_shooting_of_officer/?page=full (reporting on a case of a fingerprint "match" disproved through DNA exoneration). But equally important, albeit far more challenging and contested, questions have been raised in cases of scientific opinion that has evolved over time to a point of rejecting the theory or application on which the conviction was premised.
9. See, e.g., Ex parte Henderson, 384 S.W.3d 833, 833-34 (Tex. Crim. App. 2012) (affirming a grant of habeas corpus relief for a death row inmate based on "new developments in the science of biomechanics" causing scientific experts at the initial trial to change conclusions regarding the cause of death).
10. Jennifer L. Mnookin et al., The Need for a Research Culture in the Forensic Sciences, 58 UCLA L. Rev. 725, 744-60 (2011) (extolling the need for a research culture in the forensic sciences and arguing that a research culture would increase the accuracy and reliability of forensic science)
11. Michael J. Saks & David L. Faigman, Failed Forensics: How Forensic Science Lost Its Way and How It Might Yet Find It, 4 Ann. Rev. L. & SOC. SCI. 149, 150-68 (2008) (describing scientific and technological failures of "nonscience forensic sciences," the role of courts in propping up flawed disciplines, and proposals to make "these nonscientific forensic sciences... scientific").
12. Paul C. Giannelli, The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Laboratories, 4 Va. J. SOC. POL'Y & L. 439, 441 (1997) (noting that while scientific evidence is superior to other types of evidence, there have been a number of abuses of scientific evidence, "including perjury by expert witnesses, faked laboratory reports, and testimony based on unproven techniques," and that too many experts have a police-prosecution bias)
13. Randolph N. Jonakait, Forensic Science: The Need for Regulation, 4 Harv. J.L. & TECH. 109, 191 (1991) (concluding that " [a]ll available information indicates that forensic science laboratories perform poorly," and arguing for increased regulation of crime laboratories).
14. Peter J. Neufeld & Neville Colman, When Science Takes the Witness Stand, SCI. AM., May 1990, at 46, 52-53 (noting that defendants rarely have adequate resources to challenge scientific evidence and calling for independent oversight of forensic methods).
15. See, e.g., ERICA BEECHER-MONAS, EVALUATING SCIENTIFIC EVIDENCE: AN INTERDISCIPLI- NARY FRAMEWORK FOR INTELLECTUAL DUE PROCESS 122 (2007) ("The struggle over what counts as science is in dire straits when it comes to capital sentencing proceedings")
16. DAVID H. KAYE, THE DOUBLE HELIX AND THE LAW OF EVIDENCE 244-59 (2010) (describing how the adversarial process affected DNA science)
17. Keith A. Findley, Innocents at Risk: Adversary Imbalance, Forensic Science, and the Search for Truth, 38 SETON HALL L. REV. 893, 895-96 (2008) (arguing that "cognitive biases, institutional pressures, and systemic choices (including everything from police training to judicial rules of evidence and procedure) combine to enforce a type of tunnel vision, which makes it very difficult for a wrongly accused, and ultimately wrongly convicted, person to be vindicated").
18. COMM. ON IDENTIFYING THE NEEDS OF THE FORENSIC SCI. CMTY. ET AL., NAT'L RESEARCH COUNCIL OF THE NAT'L ACADS., STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD 127-82 (2009) [hereinafter NAS REPORT.
19. See id. at 4-5 (discussing the impact of advances in forensic science on criminal justice).
20. See id. at 19-33 (summarizing all thirteen recommendations).
21. See Brief for the Respondent at 8-9 & n.3, Dist. Attorney's Office for the Third Judicial Dist. v. Osborne, 129 S. Ct. 2308 (2009) (No. 08-6) (discussing the State's decision to not conduct RFLP testing and to rely upon microscopic examination of hairs-an analysis which is no longer accepted as a valid basis for identification standing alone)
22. Appellant's Opening Brief at 31-33, Skinner v. State, No. AP-76,675 (Tex. Crim. App. Feb. 2, 2012), 2012 WL 591289, *31-33 (discussing facts)
23. see also Skinner v. Switzer, 131 S. Ct. 1289, 1298 (2011) (holding that a convicted state prisoner seeking DNA testing of evidence may assert that claim in a civil rights action)
24. Osborne, 129 S. Ct. at 2323 (declining to recognize a freestanding constitutional right of access to DNA testing).
25. This is based on a conservative count of the publicly available data from Professor Brandon Garrett's study. See BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHEN CRIMINAL PROSECUTIONS GO WRONG app. (2011) [hereinafter GARRETT, APPENDIX TO CONVICTING THE INNOCENT., available at http://www.law.virginia.edu/pdf/faculty/garrett/convicting_the_innocent/garrett_forensics_appendix.pdf (providing a table of characteristics of forensic evidence used at trial from a list of 250 later-exonerated convicts)
26. see also GARRETT, supra note 2, 6-11 (discussing the reasons behind the wrongful convictions of the first 250 people to be exonerated by DNA evidence). Interestingly, in only three of those cases were the exculpatory results not disclosed to defense counsel
27. See GARRETT, APPENDIX TO CONVICTING THE INNOCENT, supra.
28. For reasons explained below, the analysis is confined to state and local, nonfederal actors, although it will be generalizable to a certain extent. See infra Part II.
29. See supra note 12.
30. Work exemplifying this trend includes Darryl K. Brown, The Decline of Defense Counsel and the Rise of Accuracy in Criminal Adjudication, 93 CALIF. L. REV. 1585 (2005)
31. Gerard E. Lynch, Our Administrative System of Criminal Justice, 66 FORDHAM L. REV. 2117 (1998)
32. William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 YALE L.J. 1 (1997).
33. See, e.g., Kent Roach, Wrongful Convictions and Criminal Procedure, 42 BRANDEIS L.J. 349, 363-64 (2004) (observing that "rigid compartmentalization" in legal training segregates the field of evidence law, where forensic science naturally sits, and typically holds questions concerning criminal procedure and criminal justice at bay)
34. Andrea Roth, Book Review, 62 J. LEGAL EDUC. 377, 383-85 (2012) (reviewing WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE (2011)) (observing that one of the leading criminal procedure and criminal justice theorists of our time, the late William Stuntz, largely ignored scientific evidence in his work).
35. See H.R. REP. NO. 109-272, at 121 (2005) (Conf. Rep.) (charging the National Academy of Sciences "to conduct a study... as described in the Senate report")
36. S. REP. NO. 109-88, at 46 (2005) (listing eight charges).
37. See, e.g., RICHARD SAFERSTEIN, CRIMINALISTICS: AN INTRODUCTION TO FORENSIC SCIENCE 6-8 (7th ed. 2001) (reviewing history and recounting factors)
38. Edward J. Imwinkelried, A New Era in the Evolution of Scientific Evidence--A Primer on Evaluating the Weight of Scientific Evidence, 23 WM. & MARY L. REV. 261, 261-62 (1981) (reviewing history)
39. Joseph L. Peterson & Anna S. Leggett, The Evolution of Forensic Science: Progress Amid the Pitfalls, 36 STETSON L. REV. 621, 623-40 (2007) (same).
40. See PRESIDENT'S COMM'N ON LAW ENFORCEMENT & ADMIN. OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 270-71 (1967) (recommending greater research and capacity building in forensic science).
41. See, e.g., NAT'L ADVISORY COMM'N ON CRIMINAL JUSTICE STANDARDS & GOALS, REPORT ON POLICE 304-05 (1973) (observing that " [t]oo many police crime laboratories have been set up on budgets that preclude the recruitment of qualified, professional personnel," and that " [t]oo often the laboratory is not considered a primary budget item and is one of the first units to suffer when budgets are trimmed")
42. Peterson L.& Leggett S., supra note 20, at 623-25 (noting that " [w]hile the growth [of crime-laboratory services]was necessary, it was unregulated and without clear guidance from, or adherence to, national standards. Thus,... some of the underlying problems of quality assurance and minimum scientific standards simply multiplied.").
43. See About ASCLD/LAB, AM. SOC'Y OF CRIME LABORATORY DIRECTORS/LABORATORY ACCREDITATION BOARD, http://www.ascld-lab.org/about_us/aboutoverview.html ("ASCLD/LAB has been accrediting crime laboratories since 1982 and currently accredits most of the federal, state and local crime laboratories in the United States plus forensic laboratories in six countries outside of the United States."). Even today only nine states require that crime laboratories be accredited, although approximately 83% of publicly funded laboratories have pursued accreditation nonetheless.
44. MATTHEW R. DUROSE et al., BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, NCJ 238252, CENSUS OF PUBLICLY FUNDED FORENSIC CRIME LABORATORIES, 2009, at 7 (2012), available at http://www.bjs.gov/content/pub/pdf/cpffcl09.pdf
45. NAT'L CONFERENCE OF STATE LEGISLATURES, DNA LAWS DATABASE tbl.6 (2010), available at http://www.ncsl.org/portals/1/Documents/cj/Table6AccredLaboratories.pdf
46. see also Donald Kennedy, Forensic Science: Oxymoron?, 302 SCIENCE 1625, 1625 (2003) (asserting that "despite repeated calls for accreditation and oversight, many government crime labs continue to lack either one"). While ASCLD/LAB has filled a much-needed oversight gap and occasionally placed itself on the forefront of investigating scientific fraud, it has nevertheless been widely criticized as far too insular and uncritical of the forensic science field to perform meaningful oversight.
47. See Ryan M. Goldstein, Note, Improving Forensic Science Through State Oversight, 90 TEXAS L. REV. 225, 238-39 & n.114 (2011) (reviewing some of the criticisms).
48. See Mnookin L., et al., supra note 3, at 771-72 (describing how SWGs are formed and what they ought to look like)
49. see also About Scientific Working Groups, SWGFAST, http://www.swgfast.org/AboutSWGs.htm (last modified Feb. 2011) ("Since the early 1990s, American and International forensic science laboratories and practitioners have collaborated in Scientific Working Groups... to improve discipline practices and build consensus standards.").
50. See, e.g., GARRETT, supra note 2, at 105-06 (describing the scientifically invalid rec- ommendation of the Scientific Working Group on Shoeprint and Tire Tread Evidence that the shoe print comparison method allows "definite conclusion of identity")
51. Harry T. Edwards, The National Academy of Sciences Report on Forensic Sciences: What It Means for the Bench and Bar, 51 JURIMETRICS 1, 11 (2010) (asserting that SWGs were of "questionable value" due, among other reasons, to lack of enforcement, lack of empirical measurement of effectiveness, and excessive vagueness)
52. Mnookin L. et al., supra note 3, at 772-73 (describing how SWGs "despite the scientific label in the name... have a rather tenuous relationship with research science," and concluding that while "practitioner-led SWGs may often reach appropriate, thoughtful, and perhaps even research- based conclusions,... they also risk being guided by and influenced by populist practitioner pressures")
53. see also State & Dominguez, No. 01-10-00428-CR, 2011 WL 3207766, at*5-8 (Tex. App.--Houston [1st Dist.]July 28, 2011, pet. ref'd.) (not designated for publication) (recounting testimony in a capital case of the founding director of the Scientific Working Group on Dog Scent and Orthogonal Detector Guidelines, who identified departures from dog scent lineup best practices but contended that the procedure in the case was still reliable).
54. See, e.g., Joseph L. Peterson & Penelope N. Markham, Crime Laboratory Proficiency Testing Results, 1978-1991, I: Identification and Classification of Physical Evidence, 40 J. FORENSIC SCI. 994, 994, 1007 (1995) (demonstrating wide variability in accuracy, shown through proficiency testing, among classification-oriented forensic techniques, and summarizing earlier studies with consistent results)
55. Joseph L. Peterson & Penelope N. Markham, Crime Laboratory Proficiency Testing Results, 1978-1991, II: Resolving Questions of Common Origin, 40 J. FORENSIC SCI. 1009, 1027-28 (1995) (same).
56. See, e.g., Erin Murphy, What 'Strengthening Forensic Science' Today Means for Tomor- row: DNA Exceptionalism and the 2009 NAS Report, 9 LAW, PROBABILITY & RISK 7, 9-15 (2010) (summarizing the history and contrasting the scrutiny of DNA to the inattention vis-à-vis other forensic sciences).
57. See, e.g., Peterson L. & Leggett N.M., supra note 20, at 654 (recounting the history and attainment of the "gold standard" label)
58. Erin Murphy, The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence, 95 CALIF. L. REV. 721, 731-34 (2007) (discussing the history of forensic DNA and its role in upending traditional techniques of criminal investigation).
59. See, e.g., JAY D. ARONSON, GENETIC WITNESS: SCIENCE, LAW, AND CONTROVERSY IN THE MAKING OF DNA PROFILING 146-72 (2007) (detailing the series of battles known as "the DNA wars")
60. Simon A. Cole, Fingerprint Identification and the Criminal Justice System: Historical Lessons for the DNA Debate, in DNA AND THE CRIMINAL JUSTICE SYSTEM: THE TECHNOLOGY OF JUSTICE 63, 63-90 (David Lazer ed., 2004) (detailing lessons learned from the DNA debate).
61. Murphy E., supra note 28, at 726-31.
62. See, e.g., Murphy E., supra note 27, at 9-11 (summarizing the history and noting the implementation of regulation and standardization in forensic science).
63. DNA Identification Act of 1994, Pub. L. No. 103-322, tit. XXI, subtit. C, 108 Stat. 2065 (codified as amended at 42 U.S.C. § sect; 14131-14134 (2006))
64. see also DNA Analysis Backlog Elimination Act of 2000, Pub. L. No. 106-546, 114 Stat. 2726 (codified as amended in scattered sections of 10, 18, 28 & 42 U.S.C.) (allowing states to carry out DNA analyses for use in CODIS and to collect and analyze DNA samples)
65. Crime Identification Technology Act of 1998, Pub. L. No. 105-251, tit. I, 112 Stat. 1870 (codified as amended at 42 U.S.C. § 14601 (2006)) (authorizing the federal government to provide states with information in order to establish an integrated approach to develop information and identification technologies and systems to combat crime).
66. The federal Coverdell grant program is a rare example of a more broadly available funding source for forensic science. Science, State, Justice, Commerce, and Related Agencies Appropriations Act, 2006, Pub. L. No. 109-108, tit. I, 119 Stat. 2290, 2302 (allocating funds for Paul Coverdell Forensic Science Improvement Grants).
67. See, e.g., ARONSON, supra note 29, at 147 (arguing that the FBI "sought to maintain the apparent boundary between scientific and legal issues").
68. see also Richard Lempert, After the DNA Wars: Skirmishing with NRC II, 37 JURIMETRICS 439, 451-53, 465-66 & nn.63-64 (1997) (discussing the history of the reports and outlining their differing recommendations regarding calculation of match probability)
69. William C. Thompson, Accepting Lower Standards: The National Research Council's Second Report on Forensic DNA Evidence, 37 JURIMETRICS 405, 406-07 (1997) (characterizing the second report as "inadequate and less rigorous" than the first).
70. Murphy E., supra note 27, at 13-14 & n.50.
71. See DUROSE R. et al., supra note 23, at 4 tbl.5 (reporting that in 2009, 66% of requests for analysis to laboratories were for nonbiological evidence)
72. NAS REPORT, supra note 7, at 41 (stating that DNA analysis comprises only about 10% of laboratory caseloads).
73. See ARONSON D., supra note 29, at 3 ("As the history of DNA profiling demonstrates, [forensic]technologies have limitations that only become apparent when they are applied in practice and are challenged by people who have a vested interest in pointing out their shortcomings.")
74. 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) (noting that the buzz surrounding DNA evidence "should not obscure the fact that most forensic sciences, including DNA typing, rely on assumptions that have not yet been verified by empirical testing").
75. See generally MICHAEL R. BROMWICH, FINAL REPORT OF THE INDEPENDENT INVESTIGA- TOR FOR THE HOUSTON POLICE DEPARTMENT CRIME LABORATORY AND PROPERTY ROOM (2007), available at http://www.hpdlabinvestigation.org/reports/070613report.pdf (describing the Houston crime lab's failures in DNA, serology, and other disciplines)
76. Mandy Locke et al., Scathing SBI Audit Says 230 Cases Tainted by Shoddy Investigations, NEWS & OBSERVER, Aug. 27, 2010, http://www.newsobserver.com/2010/08/19/635632/scathing-sbi-audit-says-230-cases.html (describing widespread failures at the North Carolina state crime lab)
77. Ben Schmitt & Joe Swickard, Troubled Detroit Police Crime Lab Shuttered: State Police Audit Results 'Appalling,' Wayne County Prosecutor Declares, DETROIT FREE PRESS, Sept. 26, 2008, http://truthinjustice.org/detroit-lab.htm (discussing ballistics analysis errors and widespread lab failures).
78. See, e.g., BROMWICH, supra note 39, at 116-50 (detailing numerous problems with the Houston crime lab's DNA testing).
79. See NAS REPORT, supra note 7, at 38-39 (discussing how some forensic disciplines are conducted by scientists while others are conducted by nonscientists)
80. Randall A. Childs et al., Survey of Forensic Science Providers, 1 FORENSIC SCI. POL'Y & MGMT. 49, 54-56 & tbl.9 (2009) (examining forensic functions performed by city police and sheriff departments).
81. See NAS REPORT, supra note 7, at 57-64 (discussing various configurations of crime laboratories
82. S. REP. NO. 109-88, at 46 (2005) ("The results of these studies are indicative of a larger problem within the forensic science and legal community: the absence of data. 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.").
83. Murphy E., supra note 27, at 16 (arguing that the availability of DNA typing helped foster a political push for the NAS Report).
84. See NAS REPORT, supra note 7, at 13-14 (acknowledging the delicate political balance between federal and state programs within the forensic science community)
85. Paul C. Giannelli, Daubert and Forensic Science: The Pitfalls of Law Enforcement Control of Scientific Research, 2011 U. ILL. L. REV. 53, 88 & nn.238-40 (describing evidence of political battles between the DOJ/NIJ and the National Academy of Sciences over the authority to conduct forensic science research)
86. Solomon Moore, Science Found Wanting in Nation's Crime Labs, N.Y. TIMES, Feb. 4, 2009, http://www.nytimes.com/2009/02/05/us/05forensics.html?_r=1&pagewanted=all (noting the storm brewing amongst federal law enforcement agencies in anticipation of the NAS Report)
87. see also William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 523-57 (2001) (detailing the institutional dynamics and political incentives affecting the balance of power between prosecutors and legislatures).
88. See, e.g., Giannelli C., supra note 4, at 469-76 (proposing a solution to the problems stemming from crime laboratories' lack of institutional independence from police departments).
89. See Giannelli C., supra note 47, at 88-90 (advocating for more rigorous research conducted by scientists independent from law enforcement)
90. Mnookin R. et al., supra note 3, at 765-67 (describing how situating forensic laboratories within law enforcement agencies created a "divide between research values and forensic practice").
91. See, e.g., Mnookin R. et al., supra note 3, at 737-40 (stating that there is insufficient scientific research to empirically ascertain the accuracy of various forensic techniques).
92. See Roger Koppl, How to Improve Forensic Science, 20 EUR. J.L. & ECON. 255, 257 (2005) (discussing several features of the organization of forensic science that lower the quality of scientists' work)
93. Saks J. & Faigman L., supra note 3, at 152-53 (characterizing the approach of law enforcement toward novel forensic technologies as "bureaucratic" and empirically unsound).
94. See, e.g., 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, 375 (2007) (describing allegations of NIJ ineffectiveness in grant oversight)
95. Giannelli supra note 47, at 88 (detailing reports of NIJ bias).
96. See Mnookin R. et al., supra note 3, at 771-73 (noting that many forensic practice standards were developed by SWGs that are funded by the DOJ and operate under the auspices of the FBI laboratory)
97. Scientific Working Groups, NAT'L INST. JUST., http://www.nij.gov/topics/forensics/lab-operations/standards/scientific-working-groups.htm (last modified July 25, 2012) (listing funding sources for various SWGs).
98. See generally Mnookin R. et al., supra note 3 (presenting these critiques as the consensus view).
99. See NAS REPORT, supra note 7, at v, xi-xii (listing evidence scholar Margaret Berger as a member of the Committee, and noting testimony by Professors Giannelli, Kaye, Mnookin, Risinger, and Saks).
100. See supra note 18 and accompanying text.
101. S. REP. NO. 109-88, at 46 (2005) (directing the formation of "an independent Forensic Science Committee" to include "members... representing operational crime laboratories, medical examiners, and coroners; legal experts; and other scientists as determined appropriate").
102. NAS REPORT, supra note 7, app. A at 287-302 (listing members and biographies).
103. see also Strengthening Forensic Science in the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 15 (2009) (statement of Barry Matson, Deputy Director, Alabama District Attorneys Association) (responding to the NAS Report and noting that " [t]he absence of prosecutors on the National Academy of Sciences Committee on Forensic Sciences has not been lost on those of us serving every day in the trenches of America's courtrooms")
104. Meredith Mays, Forensic Science Reform Continues, POLICE CHIEF (Nov. 2009), http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display&article_id=1938&issue_id=112009 (noting the objection of the International Association of Chiefs of Police that "the report was developed without input from law enforcement practitioners and recommend[ing]their input be sought").
105. NAS REPORT, supra note 7, app. B at 303-14 (listing committee meeting agendas).
106. See supra notes 3-6 and accompanying text (discussing deficiencies in the forensic sci- ences).
107. See DUROSE R. et al., supra note 23, at 1-10 (describing significant backlogs and gaps in accreditation, funding, and training at federal, state, and municipal crime labs).
108. NAS REPORT, supra note 7, at 127-82.
109. See supra notes 57-71 and accompanying text.
110. See NAS REPORT, supra note 7, at 20 (lauding the benefits that will obtain from strengthening forensic science).
111. See id. at 14-15 ("Being underresourced also means that the tools of forensic science... are not as strong as they could be, thus hindering the ability of the forensic science disciplines to excel at informing investigations, providing strong evidence, and avoiding errors in important ways.").
112. Kevin J. Strom & Matthew J. Hickman, Unanalyzed Evidence in Law-Enforcement Agencies: A National Examination of Forensic Processing in Police Departments, 9 CRIMINOLOGY & PUB. POL'Y 381, 381, 391-93 (2010)
113. see also CAL. TASK FORCE ON FORENSIC SERVS., FORCE REPORT 68 (2003), available at oag.ca.gov/sites/all/files/pdfs/publications/bfs_bookmarks.pdf ("Unfortunately, the rules by which investigators currently prioritize cases and evidence for examination by resource-constrained laboratories mitigate against the use of [new forensic tools to identify suspects]for cases that are not the very most serious or highest profile.")
114. JEREMIAH GOULKA et al., RAND, TOWARD A COMPARISON OF DNA PROFILING AND DATABASES IN THE UNITED STATES AND ENGLAND 1 (2010), available at http://www.rand.org/content/dam/rand/pubs/technical_reports/2010/RAND_TR918.pdf (noting the U.S. law enforcement community's envy of the United Kingdom's broader and more accelerated use of forensic DNA in investigations)
115. Kevin Strom et al., THE 2007 SURVEY OF LAW ENFORCEMENT FORENSIC EVIDENCE PROCESSING: FINAL REPORT 4-4 (2009), available at https://www.ncjrs.gov/pdffiles1/nij/grants/228415.pdf ([S]ome U.S. law enforcement agencies continue to have only a limited understanding of the full benefits of forensic evidence and a mindset that forensic evidence is beneficial mainly for prosecuting crimes, not for developing new leads in investigations.")
116. Nancy Petro, Early DNA Testing Could Prevent Nightmare of Wrongful Charges, WRONGFUL CONVICTIONS BLOG (Aug. 20, 2012), http://wrongfulconvictionsblog.org/2012/08/20/early-dna-testing-could-prevent-nightmare-of-wrongful-charges/(suggesting that DNA testing should be utilized as quickly as possible to protect wrongfully charged innocents).
117. This Article puts to the side concerns about the privacy and other civil liberties consequences of expanding law enforcement use of scientific evidence and the question of whether losses on those scores are outweighed by or even commensurate to gains in accuracy of criminal justice outcomes, taking up only an internal critique of the link between scientific production and criminal justice accuracy. For one recent example of a comprehensive treatment of the civil liberties debate
118. see SHELDON KRIMSKY & TANIA SIMONCELLI, GENETIC JUSTICE: DNA DATA BANKS, CRIMINAL INVESTIGATIONS, AND CIVIL LIBERTIES 225-320 (2011) (exploring privacy, civil liberties, and civil rights concerns from expanded exploitation of DNA).
119. Sheila Jasanoff, Just Evidence: The Limits of Science in the Legal Process, 34 J.L. MED. & ETHICS 328, 337 (2006).
120. See, e.g., Simon A. Cole, Grandfathering Evidence: Fingerprint Admissibility Rulings from Jennings to Llera Plaza and Back Again, 41 AM. CRIM. L. REV. 1189, 1197-99 (2004)
121. Jennifer L. Mnookin, The Courts, the NAS, and the Future of Forensic Science, 75 BROOK. L. REV. 1209, 1225-26 (2010).
122. See Simon A. Cole & Michael Lynch, The Social and Legal Construction of Suspects, 2 ANN. REV. L. & SOC. SCI. 39, 56 (2006) (concluding that new data-mining technologies used to develop and prosecute suspects "reproduce many of the racial and other forms of discrimination that characterize discretionary criminal justice practices")
123. Murphy, supra note 28, at 725 (" [t]he very characteristics that instill such confidence in the second generation-their technical complexity, reliance on databasing, and breadth of application-in fact aggravate the conditions that ultimately caused widespread failures in the first generation.").
124. See NAS REPORT, supra note 7, at 133 ("The probative power of these [traditional]methods can be high [and]can be improved by strengthening the methods' scientific foundations and practice, as has occurred with forensic DNA analysis.").
125. Emily Hammond Meazell, Super Deference, The Science Obsession, and Judicial Review as Translation of Agency Science, 109 MICH. L. REV. 733, 734-35, 753-54 (2011) (considering whether, in light of scientific uncertainty, courts ought to defer to scientific findings of administrative agencies).
126. NAS REPORT, supra note 7, at 127.
127. See id. at 53 (adding that "judicial review, by itself, is not the answer" (emphasis added)).
128. HINDELANG CRIMINAL JUSTICE RESEARCH CTR., UNIV. AT ALBANY, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE tbl.5.46.2002 [hereinafter SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE., available at http://www.albany.edu/sourcebook/pdf/t5462002.pdf. Plea rates are lower, though still quite high, for rapes, murders, and other violent crimes.
129. See infra Part II.
130. NAS REPORT, supra note 7, at 37.
131. See Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 STAN. L. REV. 869, 871 (2009) (discussing the adjudicative role that prosecutors play in light of plea rates)
132. Lynch, supra note 17, at 2149 (" [P]rosecutors, in their discretionary charging and plea bargaining decisions, are acting largely as administrative, quasijudicial decision-makers ").
133. NAS REPORT, supra note 7, at 77.
134. See id. at 23 ("The best science is conducted in a scientific setting as opposed to a law enforcement setting.").
135. see also id. at 18 ("In sum, the committee concluded that advancing science in the forensic science enterprise is not likely to be achieved within the confines of DOJ.").
136. see also id. at 111 (quoting Sir Isaac Newton's description of the scientific method).
137. See generally, e.g., PROFESSIONALIZATION (Howard M. Vollmer & Donald L. Mills eds., 1966) (chronicling the processes and consequences of professionalization across a number of different occupations)
138. Richard H. Hall, Professionalization and Bureaucratization, 33 AM. SOC. REV. 92, 93 (1968) (discussing "structural and attitudinal" attributes of professionalism).
139. NAS REPORT, supra note 7, at 218-21.
140. Id. at 23-24; see, e.g., Chris Swecker & Michael Wolf, An Independent Review of the SBI Forensic Laboratory 25 (2010) (finding in a review of the North Carolina State Crime Laboratory that 230 instances of negative or inconclusive laboratory test results were never disclosed to police or prosecutors, but that there were no instances of positive or confirmative results that were not disclosed), available at http://www.ncids.com/forensic/sbi/Swecker_Report.pdf.
141. See NAS REPORT, supra note 7, at 123-24 (citing work by, among others, Itiel Dror, and discussing the Mayfield case).
142. See id. at 183-84 (observing that in a system where the laboratory administrator reports to the head of the law enforcement agency, "significant concerns related to the independence of the laboratory and its budget" are raised)
143. Jan S. Bashinski & Joseph L. Peterson, Forensic Sciences, in LOCAL GOVERNMENT POLICE MANAGEMENT 488, 503-04 (William A. Geller ed., 3d ed. 1991) (arguing that laboratories located within law enforcement agencies should be situated "as high in the [police]organization as possible" and cautioning that placing laboratories in lower echelons "may condemn [them]to a reduced level of budgetary support and may keep [them]from developing effective and necessary communications and rapport with investigative units").
144. NAS REPORT, supra note 7, at 80.
145. See id. at 23 ("The best science is conducted in a scientific setting as opposed to a law enforcement setting.").
146. See NAT'L DIST. ATT'YS ASS'N, RESOLUTION IN SUPPORT OF EFFORTS TO STRENGTHEN FORENSIC SCIENCE IN THE UNITED STATES (2010), available at http://www.ndaa.org/pdf/NDAA_strengthen_forensic_science_resolution_4_10.pdf (supporting calls for more research and greater funding but opposing any requirement that crime laboratories be independent of law enforcement)
147. NAT'L DIST. ATT'YS ASS'N, TURNING THE INVESTIGATION ON THE SCIENCE OF FORENSICS (2011), available at http://www.theiai.org/current_affairs/20111207_TurningInvestigationOnScienceOfForensics.pdf (noting areas of agreement with and objection to the Report's recommendations)
148. Jonathan J. Koehler, Forensic Science Reform in the 21st Century: A Major Conference, A Blockbuster Report and Reasons To Be Pessimistic, 9 LAW, PROBABILITY & RISK 1, 3-6 (2010) (detailing objections to the NAS Report from the FBI, forensic science organizations, and Congress)
149. The ASCLD/LAB Board Reacts to the NAS Study, ASCLD/LAB NEWSL., Mar. 26, 2009, at 3, 3, available at http://www.ascld-lab.org/communications/newsletters/2009_march_newsletter.pdf (reporting the view of Association of Crime Lab Directors largely embracing the Report's recommendations but rejecting the independence and NIFS proposals)
150. Meredith Mays, Forensic Science Reform Continues, POLICE CHIEF (Nov. 2009), http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display&article_id=1938&issue_id=112009 (describing objections of International Association of Chiefs of Police to the NAS Report)
151. Joseph Polski, Forensic Science: A Critical Concern for Police Chiefs, POLICE CHIEF (Sept. 2009), http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=1887&issue_id=92009 (same).
152. See, e.g., D. Michael Risinger, The NAS/NRC Report on Forensic Science: A Path Forward Fraught with Pitfalls, 2010 UTAH L. REV. 225, 225-26, 236-39 [hereinafter Risinger, Path Forward](arguing that "the [NAS]Report has now made it untenable to treat criticisms as simply the cavils of uninformed academics with nothing better to do" though calling the NIFS and independence proposals politically infeasible)
153. Koehler, supra note 105, at 2 (noting that the "blockbuster" Report is institutionally significant in its call for laboratory independence)
154. Mnookin R. et al., supra note 3, at 761 (supporting the Report's recommendation of laboratory independence).
155. But see generally D. Michael Risinger, The NAS/NRC Report on Forensic Science: A Glass Nine- Tenths Full (This Is About the Other Tenth), 50 JURIMETRICS 21 (2009) (criticizing the Report for not going far enough in prescribing standards of laboratory practice by merely calling for further research on the subject).
156. See, e.g., Roberta Julian et al., "Get It Right the First Time": Critical Issues at the Crime Scene, 24 CURRENT ISSUES IN CRIM. JUST. 25, 26 (2012) (discussing factors contributing to "crime scene processing [coming]to be recognized as a critical stage in the forensic process").
157. See BRIAN A. REAVES, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, NCJ 212749, CENSUS OF STATE AND LOCAL LAW ENFORCEMENT AGENCIES, 2004, at 1 (2007), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/csllea04.pdf (reporting 12,766 local police departments and 3,067 sheriffs' offices)
158. BRIAN A. REAVES, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, NCJ 238250, FEDERAL LAW ENFORCEMENT OFFICERS, 2008, at 1 (2012) (reporting that twenty-four different federal agencies employ 96% of the 120,000 federal law enforcement agents), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/fleo08.pdf
159. TEVEN W. PERRY & DUREN BANKS, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, NCJ 234211, PROSECUTORS IN STATE COURTS, 2007-STATISTICAL TABLES 2 (2011), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/psc07st.pdf (reporting 2,330 state prosecutors' offices)
160. EXEC. OFFICE FOR U.S. ATT'Y, U.S. DEP'T OF JUSTICE, UNITED STATES ATTORNEYS' ANNUAL STATISTICAL REPORT: FISCAL YEAR 2010, MESSAGE FROM THE DIRECTOR (2010), available at http://www.justice.gov/usao/reading_room/reports/asr2010/10statrpt.pdf (describing the United States Attorney system as consisting of 94 headquarters offices and 138 staffed branch offices nationwide).
161. BRIAN FORST, IMPROVING POLICE EFFECTIVENESS AND TRANSPARENCY: NATIONAL INFORMATION NEEDS ON LAW ENFORCEMENT 2, 6 (2008) (encouraging BJS and NIJ to do more data collection on police management and "use of technology" in order to raise conviction rates).
162. See, e.g., TECHNICAL WORKING GRP. ON CRIME SCENE INVESTIGATION, CRIME SCENE INVESTIGATION: A GUIDE FOR LAW ENFORCEMENT 17-32 (2000) (directing officers to document each stage of crime scene response and evidence collection).
163. Typically, though not always, physical evidence is gathered from a crime scene and transported to a nonlaboratory police storage facility to await a decision concerning submission for testing.
164. JOSEPH PETERSON & IRA SOMMERS, THE ROLE AND IMPACT OF FORENSIC EVIDENCE IN THE CRIMINAL JUSTICE PROCESS 22 (2010), available at https://www.ncjrs.gov/pdffiles1/nij/grants/231977.pdf.
165. See Bashinski & Peterson, supra note 102, at 497 ("For example, potential evidence that could exclude a suspect may be overlooked at the scene if the crime scene examiner has prematurely focused on a particular theory of reconstruction. Or physical evidence capable of answering a critical investigative question may never be analyzed if an investigator is unaware of its potential value.").
166. See, e.g., id. at 492-93 (discussing basic principles of forensic science including standards, controls, and evidence-handling operations).
167. See, e.g., Erin Mulvaney, Mislabeled Rape Kit from 2003 Linked to Other Assaults, HOUS. CHRON., Oct. 10, 2012, http://www.chron.com/news/houston-texas/article/2003-rape-kit-untested-for-9-years-due-to-3937748.php (describing a nine-year time lag in identifying a sexual assault suspect due to police mislabeling of the rape kit); see also infra notes 137-40 and accompanying text.
168. See, e.g., ARONSON, supra note 29, at 192-93 (describing a defense strategy of arguing that contamination occurred in crime scene processing).
169. TASK FORCE ON WRONGFUL CONVICTIONS, N.Y. STATE BAR ASS'N, FINAL REPORT OF THE NEW YORK STATE BAR ASSOCIATION'S TASK FORCE ON WRONGFUL CONVICTIONS 94 (2009) [hereinafter N.Y. STATE BAR ASS'N, FINAL REPORT., available at http://www.nysba.org/Content/ContentFolders/TaskForceonWrongfulConvictions/FinalWrongfulConvictionsReport.pdf.
170. See House v. Bell, 547 U.S. 518, 543-46 (2006) (describing an allegation of shoddy evidence storage and transport undermining blood spatter evidence in a capital case). These risks at the collection stage are only exacerbated in the DNA era-not simply because of the potential enormity of a missed opportunity to subject evidence to DNA testing, but also because, ironically, the sensitivity of the most current techniques of DNA analysis increases the potential for contaminated evidence to yield profiles of individuals who are not legitimate suspects in a crime.
171. See Murphy E., supra note 28, at 724 (asserting that new forms of forensic evidence can actually exacerbate the conditions that lead to wrongful convictions);
172. see also Dist. Attorney's Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 80-81 (2009) (Alito, J., concurring) (noting that DNA testing is unique both in its promise of certainty and in its sensitivity to contamination).
173. Pamela Colloff, The Innocent Man, Part One, TEX. MONTHLY, Nov. 2012, http://www.texasmonthly.com/story/innocent-man-part-one.
174. See Ex parte Miles, 359 S.W.3d 647, 651-52, 653 n.2 (Tex. Crim. App. 2012) (recounting a detective's failure to search an area in the bushes where an eyewitness stated the shooter in question had hidden)
175. KAYE, supra note 6, at 258 ("Of course, the laboratory is not going to come back with a report that states that suspect I is the driver if its STR testing plainly excludes the suspect as the source of material swabbed from the driver's airbag, but what might additional swabs from both airbags show?")
176. Robert B. Bates, Curing Investigative Tunnel Vision, POLICE CHIEF, Jan. 1987, at 41, 41 (discussing the investigative impact of overly selective collection of fingerprint evidence)
177. Jonathan Schuppe & William Kleinknecht, Evidence of a Crisis, STAR LEDGER, Jan. 30, 2006, http://www.nj.com/starledger/speacialprojects/index.ssf?/news/ledger/stories/013006_essexmurder_main.html (describing a beleaguered Essex County Crime Scene Unit and a Newark homicide investigation in which no physical evidence was recovered). But of course, where documentation practices are weak, it is more difficult to identify the extent of the problem.
178. See, e.g., TEX. FORENSIC SCI. COMM'N, REPORT OF THE TEXAS FORENSIC SCIENCE COMMISSION: WILLINGHAM/WILLIS INVESTIGATION 20-21 (2011), available at http://www.fsc.state.tx.us/documents/FINAL.pdf (rejecting the allegation that potentially probative debris from fire scenes were discarded without examination in the investigation of two arson cases, but finding that the collection and examination of the debris were completely undocumented). Critically, documentation is likely to be the weakest in the cases that will naturally receive the least scrutiny: relatively minor offenses carrying relatively low sentences that are likely to lead to early negotiated guilty pleas.
179. PETERSON & SOMMERS, supra note 112, at 46, 63, 77.
180. Id. at 95. In fact, biological evidence, quintessentially associated with sexual assault investigations, was collected in only 54% of the investigations studied in Peterson's research.
181. See, e.g., id. at 21 (noting that the level of interaction between the offender and the victim or scene affects what evidence is available).
182. See generally BRIAN PARKER & JOSEPH PETERSON, PHYSICAL EVIDENCE UTILIZATION IN THE ADMINISTRATION OF CRIMINAL JUSTICE (1972) (detailing their study of the physical evidence gathered from crime scenes and input into crime laboratories).
183. JOHN ROMAN et al., POST-CONVICTION DNA TESTING AND WRONGFUL CONVICTION 4 (2012) (noting that convictions of sexual assault are more likely to involve a determinate DNA profile than convictions of nonsexual assault because of standardized evidence collection in rape cases)
184. see also Rebecca Campbell et al., The Effectiveness of Sexual Assault Nurse Examiner (SANE) Programs: A Review of Psychological, Medical, Legal, and Community Outcomes, 6 TRAUMA, VIOLENCE & ABUSE 313, 315 (2005) (discussing the effect of SANE programs on rates of evidence recovery in sexual assault cases)
185. Donald Johnson et al., Use of Forensic Science in Investigating Crimes of Sexual Violence: Contrasting Its Theoretical Potential with Empirical Realities, 18 VIOLENCE AGAINST WOMEN 193, 194 (2012) (noting the role that DNA analysis has played in linking sexual offenders to their victims)
186. HER MAJESTY'S INSPECTORATE OF CONSTABULARY, UNDER THE MICROSCOPE-REFOCUSED: A REVISIT TO THE INVESTIGATIVE USE OF DNA AND FINGERPRINTS 2-3, 8 (2002) [hereinafter UNDER THE MICROSCOPE., available at http://www.hmic.gov.uk/media/under-the-microscope-20020601.pdf (reporting that an increase in crime scene personnel in the United Kingdom yielded a substantial increase in DNA and fingerprint recovery).
187. See JOSEPH L. PETERSON et al., FORENSIC EVIDENCE AND THE POLICE: THE EFFECTS OF SCIENTIFIC EVIDENCE ON CRIMINAL INVESTIGATIONS 97-98 (1984) (concluding from statistics on cities' evidence collection that police investigators "will usually go to greater lengths collecting information to attempt to solve personal crimes than they will for property crimes").
188. See SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE tbl.4.6.2010, available at http://www.albany.edu/sourcebook/pdf/t462010.pdf (showing that more property and drug crimes than violent crimes were charged in the United States from 2001 to 2010).
189. Bashinski & Peterson, supra note 102, at 494
190. see also Roman et al., supra note 110, at 148 ("Forensic labs should provide data to police describing the attributes of evidence collected that are associated with a higher probability of suspect identification")
191. Anita Hassan, Investigators Using 'Touch DNA' to Solve Property Crimes, HOUS. CHRON., Mar. 12, 2012, http://www.chron.com/news/houston-texas/article/DNA-is-solving-property-crimes-3397341.php (discussing the rise of microscopic DNA sampling in combating property crime).
192. NAS REPORT, supra note 7, at 183.
193. See Durose et al., supra note 23, at 3 (stating that 52% of the nation's crime labs engaged in crime scene response activities and that both county labs (62%) and municipal labs (71%) were more likely than state labs (44%) to be directly involved in crime scene investigations in 2009)
194. see also BARRY A.J. FISHER et al., INTRODUCTION TO CRIMINALISTICS: THE FOUNDATION OF FORENSIC SCIENCE 5 (2009) (explaining that the seriousness of the crime determines whether first responders or more specialized personnel collect evidence at the crime scene).
195. FRANK HORVATH & ROBERT T. MEESIG, A NATIONAL SURVEY OF POLICE POLICIES AND PRACTICES REGARDING THE CRIMINAL INVESTIGATION PROCESS: TWENTY-FIVE YEARS AFTER RAND 76 (2001), available at https://www.ncjrs.gov/pdffiles1/nij/grants/202902.pdf (" [I]n most agencies evidence-related duties are not assigned predominantly to any one type of individual or position. Rather, they are more likely to be shared among patrol officers... investigators... and evidence technicians")
196. KEITH INMAN & NORAH RUDIN, PRINCIPLES AND PRACTICE OF CRIMINALISTICS: THE PROFESSION OF FORENSIC SCIENCE 62 (2001) ("The individual making decisions about what evidence to collect and the person given the responsibility to collect it vary widely between jurisdictions, so it is difficult to generalize.")
197. Roman et al., supra note 110, at 23-24 (describing the range of evidence collection responsibilities among five studied jurisdictions).
198. See HORVATH & MEESIG supra note 131, at 6 (describing the investigative role of patrol officers)
199. FRED E. INBAU et al., SCIENTIFIC POLICE INVESTIGATION 36 (1972) (same)
200. PAUL L. KIRK & LOWELL W. BRADFORD, THE CRIME LABORATORY: ORGANIZATION AND OPERATION 104-05 (1965) (same)
201. TECHNICAL WORKING GRP. ON CRIME SCENE INVESTIGATION, supra note 111, at 14-16 (same).
202. See William H. Bieck et al., The Patrol Function, in LOCAL GOVERNMENT POLICE MANAGEMENT, supra note 102, at 59, 59 (describing the patrol officer as a "master generalist" who deals with a wide variety of calls from the public). With regard to training, requirements vary by state and department.
203. See generally BRIAN A. REAVES, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, NCJ 222987, STATE AND LOCAL LAW ENFORCEMENT TRAINING ACADEMIES, 2006 (2009), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/slleta06.pdf (describing state and local law enforcement academies in terms of their personnel, expenditures, facilities, curricula, and trainees)
204. Nancy Marion, Police Academy Training: Are We Teaching Recruits What They Need to Know?, 21 POLICING: AN INT'L J. POLICE STRATEGIES & MGMT. 54, 56-57 (1998) (listing the minimum hours of basic training that most police cadets receive at training academies (400 hours) and describing the attendance policy at one state-accredited police training academy in a university setting).
205. In Texas, for example, a course in crime scene investigation is required only for "Intermediate Peace Officer" certification. TEX. COMM'N ON LAW ENFORCEMENT OFFICER STANDARDS & EDUC., RULES HANDBOOK 91 (2011), available at http://www.tcleose.state.tx.us/publications/publications_gen/Rules%20Handbook_101011.pdf. Basic certification requires a 44- hour course in "Criminal Investigation," which includes one unit in "Protection of and Crime Scene Search."
206. See TEX. COMM'N ON LAW ENFORCEMENT OFFICER STANDARDS & EDUC., THE BASIC COURSE-REGULAR OFFICERS (2008), available at http://www.tcleose.state.tx.us/publications/publications_gen/history_of_the_bpoc_course.pdf (listing required courses for the "618-Hour Basic Peace Officer Course," including a 44-hour Criminal Investigation Course).
207. GEBERTH, supra note 110, at 43 ("In almost all instances, the first officer to arrive at any homicide crime scene is the uniformed patrol officer.").
208. See JOHN E. ECK, SOLVING CRIMES: THE INVESTIGATION OF BURGLARY AND ROBBERY 259-63 (1983) (explaining that patrol officers are typically the first to arrive on scene and suggesting that specialist technicians should be called to routine crime scenes only under special circumstances)
209. HORVATH & MEESIG, supra note 131, at 6, 34-35, 41 (reporting that most preliminary investigation is conducted by patrol officers and observing that the involvement of specialized investigators in investigative tasks is surprisingly limited)
210. Frank Horvath & Robert Meesig, The Criminal Investigation Process and the Role of Forensic Evidence: A Review of Empirical Findings, 41 J. FORENSIC SCI. 963, 966 (1996) (explaining that a patrol officer's performance of evidence collection has a "significant impact on whether the case will... be assigned for follow-up investigation" and noting that if an officer fails "to recognize or to collect potentially valuable evidence, particularly from a suspect, the case outcome is likely to be adversely affected").
211. JAN M. CHAIKEN, THE CRIMINAL INVESTIGATION PROCESS VOLUME II: SURVEY OF MUNICIPAL AND COUNTY POLICE DEPARTMENTS 25 (1975) (reporting that more than 80% of departments have evidence technicians)
212. HORVATH & MEESIG, supra note 131, at 75-76 (reporting that only 45% of agencies employ evidence technicians)
213. see also SAFERSTEIN, supra note 20, at 16 (noting that in most police forces "a patrol officer or detective is charged with the responsibility of collecting the evidence," and that the officer's effectiveness "will be dependent on the extent of his or her training and working relationship with the laboratory").
214. See Childs et al., supra note 41, at 49 (reporting that 60% of police and sheriffs' departments have one or more employees who work directly on forensic services)
215. ROMAN et al., supra note 110, at 70 (describing case processing for burglaries in Los Angeles as involving first a responding officer, then a CSI technician, then a burglary detective)
216. HORVATH & MEESIG., supra note 131, at 76 (stating that in most agencies evidence-related duties are likely to be shared among patrol officers, investigators, and evidence technicians). Strikingly, in Horvath & Meesig's survey of law enforcement organizations, 12% of responding agencies indicated that evidence technicians were not required to have any specialized training.
217. See id. (reporting that 88% of the agencies surveyed required specialized training).
218. See generally PETERSON & SOMMERS, supra note 112.
219. ROMAN et al., supra note 110, at 106, 148 (describing pressure that patrol experienced to quickly process crime scenes and become available for incoming calls).
220. See, e.g., PETERSON et al., supra note 126, at 46 ("Patrol officers seldom rope off a crime scene or ban other police personnel from the scene except in the most extraordinary situations. Most officers... are more interested in interviewing witnesses and completing their preliminary report so that they may resume patrol activities.").
221. See, e.g., MARTIN INNES, INVESTIGATING MURDER: DETECTIVE WORK AND THE POLICE RESPONSE TO CRIMINAL HOMICIDE 157 (2003) (describing the process of evidence collection as both methodical and improvised)
222. LEMOYNE SNYDER, HOMICIDE INVESTIGATION: PRACTICAL INFORMATION FOR CORONERS, POLICE OFFICERS, AND OTHER INVESTIGATORS 21 (2d ed., 3d prtg. 1973) (encouraging investigators to employ a "rigid routine" in evidence collection modified to fit the particular crime scene).
223. INNES supra note 142, at 209.
224. KAYE, supra note 6, at 258.
225. See LEE t al., supra note 110, at 1-2 (characterizing crime scene investigation as the first stage in crime "reconstruction").
226. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988) (rejecting the contention that due process was violated by the loss of potentially favorable evidence, in favor of the standard requiring a showing of official bad faith to make out the constitutional destruction-of-evidence claim)
227. California v. Trombetta, 467 U.S. 479, 488-89 (1984) (rejecting the argument that failure to preserve breath test samples for later analysis violated due process unless their exculpatory value was apparent and comparable evidence was unavailable to the defendant).
228. As the Supreme Court has noted: [P.olice may make warrantless entries onto premises if they reasonably believe a person is in need of immediate aid and may make prompt warrantless searches of a homicide scene for possible other victims or a killer on the premises, but we rejected any general "murder scene exception" as "inconsistent with the Fourth and Fourteenth Amendments-... the warrantless search of [an]apartment was not constitutionally permissible simply because a homicide had recently occurred there."
229. Flippo v. West Virginia, 528 U.S. 11, 14 (1999) (citations omitted).
230. See Yale Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a "Principled Basis" Rather than an "Empirical Proposition"?, 16 CREIGHTON L. REV. 565, 569-70 (1983) (describing search warrants as easy to obtain).
231. See Mark Hutchins, Crime Scene Searches, PROSECUTOR, Nov./Dec. 1999, at 25, 26 (observing that " [w]arrants are seldom necessary for making the initial entry" to a crime scene because of the consent and exigent circumstances doctrines).
232. See Jennifer E. Laurin, Messerschmidt and Convergence in Action: A Reply to Comments on Trawling for Herring, 112 COLUM. L. REV. SIDEBAR 119-123 (2012) (arguing that the Supreme Court has recently given police "'ample' space to err" when deciding liability for departures from constitutional requirements).
233. Cf. Chip Heath et al., Cognitive Repairs: How Organizational Practices Can Compensate for Individual Shortcomings, 20 RES. ORGANIZATIONAL BEHAV. 1-3 (1998) (describing the concept of cognitive repairs, organizational practices that people use to correct initial errors in judgment).
234. See, e.g., Kentucky v, & 131 S. Ct. 1849-1858 (2011) (permitting warrantless entry to prevent the destruction of evidence).
235. Schmerber v. California, 384 U.S. 757-770 (1966) (permitting warrantless collection of blood for purposes of toxicology analysis because "the delay necessary to obtain a warrant, under the circumstances, threatened the 'destruction of evidence'").
236. Kaliku v. United States, 994 A.2d 765-780 (D.C. 2010) (holding warrantless collection of penile swab from an assault suspect justified under the exigent circumstances exception).
237. State v. Dupree, 462 S.E.2d 279, 282-83 (S.C. 1995) (permitting warrantless search of a suspect's mouth given the risk that drugs were inside and would be swallowed).
238. See RICHARD VAN DUIZEND et al., THE SEARCH WARRANT PROCESS: PRECONCEPTIONS, PERCEPTIONS, PRACTICES 19 (1985) (quoting a detective as saying: "Actually, there are a lot of warrants that are not sought because of the hassle. I don't think you can forgo a case because of the hassle of a search warrant, but you can...work some other method.").
239. David A. Sklansky, Quasi-Affirmative Rights in Constitutional Criminal Procedure, 88 VA. L. REV. 1229, 1250-51 (2002) (observing that "getting a warrant still takes hours or days" and that "formal procedures for seeking a telephonic warrant are often cumbersome" and that as a result police simply forego them).
240. William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 VA. L. REV. 881, 891-92 (1991) (observing that the warrant requirement certainly deters some searches).
241. See TECHNICAL WORKING GRP. ON CRIME SCENE INVESTIGATION, supra note 111, at 37, 41-43.
242. John E. Eck & Gerald L. Williams, Criminal Investigations, in LOCAL GOVERNMENT POLICE MANAGEMENT, supra note 102, at 131-144.
243. GEBERTH, supra note 110, at 805 ("Often agencies do not put enough emphasis on [the crime scene investigative]phase of the investigation").
244. PETERSON et al., supra note 126, at 46 (noting that patrol officers are "rather blase" about going to great investigative lengths and prefer to "complet[e]their preliminary report so that they may resume patrol activities").
245. Joseph T. Latta & William P. Kiley, Property and Evidence Control-The Hidden (and Ticking) Time Bomb, CALEA UPDATE MAG., June 2007, available at http://www.calea.org/calea-update-magazine/issue-94/property-and-evidence-controlhidden-and-ticking-time-bomb (discussing widespread problems with evidence storage and disposition stemming from the perception that property room control is low priority).
246. see also INNES, supra note 142, at 208 ("The early stages of an investigation are frequently chaotic and confused, and problems were often experienced in exerting control over the scene in the earliest stages. It was frequently the case that the continuity of records...was not maintained").
247. Julie Samuels et al., Collecting DNA from Arrestees: Implementation Lessons, NIJ J., June 2012, at 18-22, available at http://www.nij.gov/journals/270/arrestee-dna.htm.
248. See, e.g., Bashinski & Peterson, supra note 102, at 495 (advocating for coordination).
249. ROMAN et al., supra note 110, at 51, 73-148 (describing how collaboration is critical and describing the breakdown in evidence collection in some jurisdictions because of poor coordination).
250. SAFERSTEIN, supra note 20, at 16 (advising coordination but noting the lack thereof in many agencies).
251. 557 U.S. 52 (2009).
252. 131 S. Ct. 1289 (2011).
253. Osborne, 557 U.S. at 61.
254. See Osborne v. State, 110 P.3d 986, 989-90 (Alaska Ct. App. 2005).
255. Skinner v. State, 956 S.W.2d 532-536 (Tex. Crim. App. 1997).
256. See Appellant's Opening Brief at 31-33.
257. Skinner v. State, No. AP-76,675 (Tex. Crim. App. Feb. 2, 2012).
258. 2012 WL 591289,*31-33 (discussing the evidence proffered at trial).
259. See PETERSON & SOMMERS, supra note 112, at 122 (" [I]t is clear that criminal justice officials external to the laboratory screen much of the forensic evidence and have a major influence on evidence examination priorities and practices.").
260. See, e.g., SARAH TOFTE, TESTING JUSTICE: THE RAPE KIT BACKLOG IN LOS ANGELES CITY AND COUNTY 3 (2009) (discussing the backlog in Los Angeles County).
261. Brandi Grissom, Thousands of Rape Kits Sit Untested for Decades, but Change Would Be Costly, N.Y. TIMES, Jan. 27, 2011, http://www.nytimes.com/2011/01/28/us/28ttkits.html?pagewanted=all&_r=0 (discussing a similar situation in Texas).
262. Kari Lyderson, Law Came Too Late for Some Rape Victims, N.Y. TIMES, July 8, 2010, http://www.nytimes.com/2010/07/09/us/09cnckits.html?_r=1&adxnnl=1&adxnnlx=1352823755-gqfzAuFZ5XVukBgIXdUxfw (discussing similar situations in Illinois and other jurisdictions, including Detroit, Houston, Los Angeles, San Antonio, and San Diego).
263. Megan Twohey, Dozens of Rape Kits Not Submitted for Testing by Chicago Suburban Police Departments, CHI. TRIB., June 14, 2009, http://www.chicagotribune.com/news/local/chirape-kits-14-jun14,0,3619454.story?page=1 (discussing a similar situation in Chicago).
264. See generally PETERSON & SOMMERS, supra note 112.
265. Johnson et al., supra note 125, at 206.
266. See STROM et al., supra note 75, at xi (reporting that in a 2007 survey of national law enforcement organizations, among unsolved homicide, rape, and property crime cases, 14%, 18%, and 23%, respectively and on average, featured unsubmitted forensic evidence).
267. Travis C. Pratt et al., This Isn't CSI: Estimating the National Backlog of Forensic DNA Cases and the Barriers Associated with Case Processing, 17 CRIM. JUST. POL'Y REV. 32, 36-37 (2006) (discussing their findings that over 200,000 U.S. rape and homicide cases contain biological evidence that has notbeen sent for testing).
268. See PETERSON & SOMMERS, supra note 112, at 46-63 (revealing the gap between submission and analysis of fingerprints versus biological evidence in assault and burglary cases).
269. Johnson et al., supra note 125, at 206 (demonstrating the same gap in rape cases).
270. Strom & Hickman, supra note 75, at 391-93 (showing the number and types of cases containing unsubmitted forensic evidence).
271. See NATHAN JAMES, CONG. RESEARCH SERV., R41800, DNA TESTING IN CRIMINAL JUSTICE: BACKGROUND, CURRENT LAW, GRANTS, AND ISSUES 9 (2012) (explaining that one factor in the forensic casework backlog is the "time-consuming" process of biological evidence screening before further testing can begin).
272. See PETERSON et al., supra note 126, at 59 (noting that in " [c]ases of suspected drug possession the identification of the substance is one of the crucial items of information required to prove the crime").
273. See, e.g., Erin Murphy, The Art in the Science of DNA: A Layperson's Guide to the Subjectivity Inherent in DNA Typing, 58 EMORY L.J. 489, 493-94 (2008) (discussing a variety of available DNA-analysis techniques).
274. Mini-STR Testing, DNA DIAGNOSTICS CENTER, http://www.forensicdnacenter.com/dna-ministr.html (championing mini-STR testing over standard STR testing when DNA evidence is limited in quality or quantity).
275. see also Dist. Attorney's Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52-62 (2009) (acknowledging that advances in DNA testing culminating in STR technology have made possible tissue matching with a suspect to a near certainty).
276. See, e.g., Cole & Lynch, supra note 80, at 44-45 (attributing an increased principal usage of " [t]race evidence recovered from crime scenes" to late twentieth-century "databases indexed according to biometric information (fingerprints and DNA profiles)").
277. See Johnson et al., supra note 125, at 210 (reporting that while physical evidence was a predictor of arrest it was analyzed prior to arrest in only 1.6% of cases).
278. see also PETERSON & SOMMERS, supra note 112, at 123 (same).
279. See PETERSON & SOMMERS, supra note 112, at 22 ("Evidence sometimes remains in the property room for brief or extended periods of time while the investigation is proceeding and sometimes until suspects are identified, standards are being sought, or a decision is being made whether to pursue or terminate the investigation.").
280. Although relatively few requests for DNA analysis are made, each case is extremely time and resource intensive, and is competing against an ever-increasing stream of work flowing from state and federal laws requiring the routine collection and analysis of DNA from individuals who enter the criminal justice system.
281. See DUROSE et al., supra note 23, at 4 & tbl.5 (estimating that the total number of requests for forensic services received exceeded the total number completed by publicly funded forensic crime labs).
282. TEX. FORENSIC SCI. COMM'N, STAKEHOLDER ROUNDTABLE REPORT 12 (2012), available at http://www.fsc.state.tx.us/documents/StakeholderRoundtableReport-June62012.pdf (identifying stakeholder dissatisfaction with turnaround times among the "key issues and challenges" to quality and timeliness of forensic services).
283. Michelle Villarreal, Department of Public Safety Crime Labs Limits DNA, Drug Testing, CORPUS CHRISTI CALLERTIMES (Sept. 1, 2012, 5:25 PM), http://www.caller.com/news/2012/sep/01/department-of-publicsafety-crime-labs-limits/(reporting a Department of Public Safety crime lab policy change limiting the DNA testing technicians will perform in response to their increased workload).
284. See DUROSE et al., supra note 23, at 4 (estimating that "60% of the estimated 887,000" forensic biology requests were backlogged in 2009 due to increases in collection of DNA samples).
285. TEX. FORENSIC SCI. COMM'N, supra note 178, at 10 (questioning how a forensic examiner could be qualified to conduct independent casework but unqualified for certification in DNA testing).
286. Villarreal, supra note 178 (reporting a recent limitation of the DNA testing technicians will perform to manage increased workload).
287. DUROSE et al., supra note 23, at 3-4.
288. See MOLLY E. GRISWOLD & GERARD B. MURPHY, IT'S MORE COMPLEX THAN YOU THINK: A CHIEF'S GUIDE TO DNA 16-20 (2010), available at http://policeforum.org/library/dnaforensics/DNA-Book10.10.pdf (describing prioritization approaches).
289. PETERSON et al., supra note 126, at 69, 76-77 (describing formal laboratory policies dictating submission and analysis).
290. See NAS REPORT, supra note 7, at 61 (reiterating the warning from the Los Angeles Sheriff's Department Crime Laboratory Director that labs "triage" cases, prioritizing violent crimes and cases handled by persistent investigators who pester the lab frequently).
291. GRISWOLD & MURPHY, supra note 181, at 23-25.
292. NAS REPORT, supra note 7, at 61.
293. see also Justin Fenton, Criminals' DNA Ignored, BALT. SUN, Sept. 27, 2008, http://articles.baltimoresun.com/2008-09-27/news/0809270007_1_dna-crimelab-found-on-evidence (reporting that police told crime lab technicians not to follow-up on DNA found at crime scenes in at least six open homicide and sexual assault cases and three closed burglary cases).
294. See Cole & Lynch, supra note 80, at 55 (stating that forensic "evidence must have a material relation to the crime that renders it suspicious" to have probative value).
295. See GRISWOLD & MURPHY, supra note 181, at 17-18 (describing various approaches to prioritization).
296. Indeed, the exceptions prove the rule. One of the most widely remarked and controversial consequences of the above-described revelations of unsubmitted, untested sexual assault kits has been the adoption in some police departments and crime laboratories of mandatory testing policies for all evidence collected in rape investigations. Compare Megan Twohey, Illinois to Test Every Rape Kit, CHI. TRIB., July 6, 2010, http://articles.chicagotribune.com/2010-07-06/news/ct-met-rape-kit-law-20100706_1_untested-kits-crime-lab-dna-backlog (describing Illinois legislation requiring testing of all rape kits backed by victims' groups).
297. with JOSEPH PETERSON ET AL., SEXUAL ASSAULT KIT BACKLOG STUDY v (2012), available at https://www.ncjrs.gov/pdffiles1/nij/grants/238500.pdf (reporting that law enforcement was generally skeptical of mandatory testing).
298. See, e.g., Villarreal, supra note 178 (reporting that Texas crime lab requests related to drug and alcohol crimes increased nearly 500% within six years and describing a new policy allowing prosecutors to select which misdemeanor-related lab requests are analyzed).
299. See, e.g., United States v. Jacobsen, 466 U.S. 109, 122-23 (1984) (finding a field test by federal agents that "merely discloses whether or not a particular substance is cocaine" does not violate legitimate privacy interests).
300. United States v. Place, 462 U.S. 696-707 (1983) (finding that a sniff inspection of a traveler's luggage by a trained narcotics-detection dog does not violate privacy interests).
301. U.S. CONST. amend. IV.
302. PETERSON & SOMMERS, supra note 112, at 22-23.
303. For example, in drug cases, police will typically have a variety of "field tests" at their disposal, permitting them to make presumptive drug identifications that are sufficient as a legal matter to establish probable cause to arrest and charge-albeit perhaps not admissible in court to prove the chemical composition of a drug.
304. See, e.g., Florida v. Harris, 133 S. Ct. 1050-1056 (2013) (holding that an alert by a dog trained in narcotics detection may establish probable cause to search a vehicle based on the ordinary "totality-of-the-circumstances" standard regardless of whether documentation supports the reliability of the dog).
305. People v. Swamp, 646 N.E.2d 774, 775-76 (N.Y. 1995) (holding that a positive result of a field test for identifying cocaine was sufficient to authorize an indictment without formal laboratory results).
306. Villarreal, supra note 178 (emphasizing the importance of crime scene investigation given tighter regulations on forensic testing).
307. see also Marc G. Kurzman & Dwight Fullerton, Drug Identification, in SCIENTIFIC AND EXPERT EVIDENCE 521, 523-54 (Edward J. Imwinkelried ed., 2d ed. 1981) (discussing the threshold of proof required to sustain a conviction when no scientific proof is available).
308. See generally JEROME H. SKOLNICK & DAVID H. BAYLEY, COMMUNITY POLICING: ISSUES AND PRACTICES AROUND THE WORLD 49-65 (1988) (discussing challenges to community policing stemming from the "attitudes, internal divisions, belief systems, traditions, [and]values" of police departments).
309. See id. at 50 (discussing the causes of the "solidarity" concept in police culture).
310. See Cole & Lynch, supra note 80, at 50 (discussing empirical data that many law enforcement agencies still do not use DNA testing as an investigatory tool and noting their reluctance to submit DNA evidence in "suspectless" cases).
311. Horvath & Meesig, supra note 136, at 966 (stating that "unless a suspect has been identified, the crime scene evidence is typically not analyzed").
312. David A. Schroeder & Michael D. White, Exploring the Use of DNA Evidence in Homicide Investigations: Implications for Detective Work and Case Clearance, 12 POLICE Q. 319-337 (2009) (" [D]etectives consistently indicated that they would use DNA evidence when needed; they just did not need it that often.").
313. cf. Edward R. Maguire, Structural Change in Large Municipal Police Organizations During the Community Policing Era, 14 JUST. Q. 547, 569-70, 572 (1997) (describing the failure of community policing policies to create structural changes within police organizations and suggesting that structural changes only occur when they have symbolic value and are nondisruptive to day-to-day activities).
314. James J. Willis et al., COMPSTAT and Bureaucracy: A Case Study of Challenges and Opportunities for Change, 21 JUST. Q. 463, 485 (2004) (recounting that commanders used data generated through COMPSTAT merely to fulfill "traditional 'crime control' function[s+AF0AJg-quot; rather than to identify and respond to particular crime problems as COMPSTAT promised).
315. Joseph L. Peterson et al., The Uses and Effects of Forensic Science in the Adjudication of Felony Cases, 32 J. FORENSIC SCI. 1730, 1733-34 (1987).
316. Schroeder & White, supra note 194, at 337.
317. See ROMAN et al., supra note 110, at 13-18 (discussing the components of CODIS and their investigatory uses).
318. See, e.g., William K. Rashbaum & Joseph Goldstein, DNA Match Tying Protest to 2004 Killing Is Doubted, N.Y. TIMES, July 11, 2012, http://www.nytimes.com/2012/07/12/nyregion/suspected-dna-link-to-2004-killing-was-the-result-of-a-lab-error.html?_r=0 (noting that DNA evidence is particularly useful in property crime cases in which the police have no suspect).
319. See, e.g., (discussing an unsolved murder case where laboratory error likely caused a false positive).
320. Texas Crime Labs Ill-Equipped to Handle Coming Volume of Touch-DNA Cases, GRITS FOR BREAKFAST (July 15, 2012, 9:42 AM), http://gritsforbreakfast.blogspot.com/2012/07/texas-crime-labs-ill-equipped-to-handle.html (expressing concern that crime labs will be unable to keep up with growth in demand for their services).
321. See, e.g., Marc L. Miller & Ronald F. Wright, The Black Box, 94 IOWA L. REV. 125, 148-53 (2008) (discussing factors prosecutors use when deciding where to allocate their limited resources).
322. Ronald Wright & Marc Miller, The Screening/Bargaining Tradeoff, 55 STAN. L. REV. 29, 30-35 (2002) (advocating enhanced "screening" by prosecutors to cut down on the number of negotiated plea bargains that take place).
323. Berger v. United States, 295 U.S. 78, 88 (1935).
324. See, e.g., Donald E. Shelton, Juror Expectations for Scientific Evidence in Criminal Cases: Perceptions and Reality About the "CSI Effect" Myth, 27 T.M. COOLEY L. REV. 1-23 (2010) (finding that jurors have high expectations that they will be presented with scientific evidence).
325. Tom R. Tyler, Viewing CSI and the Threshold of Guilt: Managing Truth and Justice in Reality and Fiction, 115 YALE L.J. 1050-1083 (2006) (asserting that CSI might raise juror standards and noting that jurors may view scientific evidence as overly conclusive).
326. See, e.g., Daniel Givelber, Meaningless Acquittals, Meaningful Convictions: Do We Reliably Acquit the Innocent?, 49 RUTGERS L. REV. 1317-1362 (1997) ("Unless the police report on its face reveals an inconsistency or barrier to conviction, the prosecutor accepts the general conclusion of the police without making an independent investigation or evaluation of the evidence."
327. quoting LLOYD L. WEINREB, DENIAL OF JUSTICE: CRIMINAL PROCESS IN THE UNITED STATES 58 (1977).
328. Peterson et al., supra note 195, at 1752.
329. See, e.g., Joshua K. Marquis & Velva M. Walter, CSI Effect-Does It Really Exist?, TALKING JUST. (Oct. 16, 2007, 3:50 PM), http://web.archive.org/web/20080821125119/http://communities.justicetalking.org/blogs/day17/archive/2007/10/16/csi-effect-does-it-really-exist.aspx (noting that forensic crime shows have prompted expensive tests even when the defendant was "caught in the act" by police and witnesses).
330. See, e.g., Brief of Amici Curiae New York County District Attorney's Office & the New York City Office of the Chief Medical Examiner in Support of Respondent at 10, Williams v. Illinois, 132 S. Ct. 2221 (2012) (No. 10-8505) (reporting that "over a recent twelve-month period, nearly one in ten suspect profiles tested by the OCME for the Manhattan DA's Office resulted in an exoneration").
331. See Daniel Givelber, Lost Innocence: Speculation and Data About the Acquitted, 42 AM. CRIM. L. REV. 1167, 1180-81 (2004) (describing how prosecutors and defense attorneys rely only on information, including forensic evidence analysis, that is readily available when making pretrial decisions).
332. Raymond S. Nickerson, Confirmation Bias: A Ubiquitous Phenomenon in Many Guises, 2 REV. GEN. PSYCHOL. 175-176 (1998).
333. See, e.g., Karl Ask et al., The 'Elasticity' of Criminal Evidence: A Moderator of Investigator Bias, 22 APPLIED COGNITIVE PSYCHOL. 1245-1246 (2008) (discussing the problem of confirmation bias in criminal investigations).
334. Karl Ask & Pär Anders Granhag, Motivational Bias in Criminal Investigators' Judgments of Witness Reliability, 37 J. APPLIED SOC. PSYCHOL. 561, 579-80 (2007) (finding disconfirmation bias regarding witness statements in a study group of Swedish investigators).
335. Barbara O'Brien, Prime Suspect: An Examination of Factors That Aggravate and Counteract Confirmation Bias in Criminal Investigations, 15 PSYCHOL., PUB. POL'Y & L. 315, 328-29 (2009) (demonstrating that in a study group of college students the act of naming a suspect produced confirmation-bias effects, including believing or valuing available evidence to the extent that it confirmed suspect guilt).
336. Barbara O'Brien, A Recipe for Bias: An Empirical Look at the Interplay Between Institutional Incentives and Bounded Rationality in Prosecutorial Decision Making, 74 MO. L. REV. 999-1033 (2009) (noting that prosecutors, like other professionals, are not immune from cognitive bias).
337. see also Bates, supra note 120, at 41 (noting that "tunnel vision" can result in the loss of evidence).
338. D. Kim Rossmo, Failures in Criminal Investigation, POLICE CHIEF (Oct. 2009), http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=1922&issue_id=102009 (giving an example of "tunnel vision" leading to a wrongful conviction).
339. Indeed, studies have demonstrated that professionals with specialized expertise in a relevant area can exhibit exacerbated cognitive limitations-as when police trained in interrogation demonstrated inferior capacity to judge truth and deception in suspects as compared to untrained college student subjects.
340. See, e.g., Ask & Granhag, supra, at 579-80 (identifying confirmation bias in controlled study of trained investigators).
341. Saul M. Kassin & Christina T. Fong, "I'm Innocent+ACEAJg-quot;: Effects of Training on Judgments of Truth and Deception in the Interrogation Room, 23 LAW & HUM. BEHAV. 499, 511-12 (1999) (finding that trained investigators were more likely than lay people to incorrectly "detect" deception in suspects).
342. Christian A. Meissner & Saul M. Kassin, "He's Guilty+ACEAJg-quot;: Investigator Bias in Judgments of Truth and Deception, 26 LAW & HUM. BEHAV. 469, 478-79 (2002) (same).
343. Eric Rassin, Blindness to Alternative Scenarios in Evidence Evaluation, 7 J. INVESTIGATIVE PSYCHOL. & OFFENDER PROFILING 153-162 (2010) (finding that trained investigators, in contrast with laypeople, exhibited blindness toward alternative suspects).
344. See Karl Ask & Pär Anders Granhag, Motivational Sources of Confirmation Bias inCriminal Investigations: The Need for Cognitive Closure, 2 J. INVESTIGATIVE PSYCH. & OFFENDERPROFILING 43-47 (2005) (proposing that time pressure, norms of decisiveness, and earlycommitment to suspects impel need for "cognitive closure" by investigators).
345. O'Brien, supra note 209, at 316 (discussing "confirmation bias").
346. Alafair S. Burke, Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science, 47 WM. & MARY L. REV. 1587, 1605-06 (2006) (suggesting that because prosecutors have and presumably discharge an ethical duty to charge a defendant only if they are reasonably certain of that defendant's guilt, " [I]f additional evidence arises, selective information processing comes into play").
347. see also ECK, supra note 136, at 156-57 (elucidating the shift in police behavior in an investigation once a prime suspect is identified, at which point the focus becomes proving the prime suspect's involvement in the crime).
348. Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 WIS. L. REV. 291-308 ("When what a person expects to see is the result of the person's own generation of hypotheses, the personal investment in those hypotheses will reinforce the tendency to perceive or overvalue confirming information and to miss or irrationally undervalue disconfirming information.").
349. See, e.g., GARRETT, supra note 2, at 266-68 (recounting how "cognitive bias" changed the conclusions arrived at by a group of experts).
350. see also infra notes 214-19 and accompanying text.
351. See generally GARRETT, APPENDIX TO CONVICTING THE INNOCENT, supra note 14 (describing the invalid evidence presented in these thirty-four cases).
352. See LESLIE CROCKER SNYDER et al., REPORT ON THE CONVICTION OF JEFFREY DESKOVIC 1-3 (2007), available at http://www.westchesterda.net/Jeffrey%Deskovic%20Comm%20Rpt.pdf (summarizing the facts of the investigation which culminated in Deskovic's arrest).
353. Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 VA. L. REV. 1-82 (2009) (summarizing the Miller case).
354. GARRETT, APPENDIX TO CONVICTING THE INNOCENT, supra note 14, at 26.
355. Ruth Fuller & Dan Hinkel, Convict Cleared in'94 Waukegan Slaying, CHI. TRIB., May 30, 2012, http://articles.chicagotribune.com/2012-05-30/news/ct-met-edwards-charges-dropped-20120530_1_dna-evidence-murder-case-reckling-case.
356. See, e.g., Ex parte Brandley, 781 S.W.2d 886-890 (Tex. Crim. App. 1989) (berating the lead investigator of a rape-murder for refusing to entertain the possibility of Brandley's innocence and to follow leads pointing towards three janitors who saw the victim just before the attack).
357. N.Y. STATE BAR ASS'N, FINAL REPORT, supra note 117, at 91-96 (describing multiple cases including those of Scott Fappiano, Anthony Faison, Hector Gonzalez, Charles Shepard, and the Central Park jogger defendants, in which known inconsistencies between evidence and theory of guilt existed, and additional potentially exculpatory forensic testing was not conducted).
358. Garrett & Neufeld, supra note 216, at 81-83 (describing cases in which police and prosecutors failed to conduct elimination or comparison testing).
359. Burke v. Town of Walpole, 405 F.3d 66, 81-85 (1st Cir. 2005).
360. See Winfrey v. State, 291 S.W.3d 68, 69-74 (Tex. App.-Eastland 2009, pet. granted) (describing how multiple laboratory-based methods of analysis failed to connect crime scene evidence and individuals who police had developed as suspects through informants, leading to multiple dog scent lineups, each following interviews with informants allegedly reporting inculpatory information).
361. rev'd by 323 S.W.3d 875 (Tex. Crim. App. 2010).
362. OFFICE OF THE INSPECTOR GEN., U.S. DEP'T. OF JUSTICE, A REVIEW OF THE FBI'S HANDLING OF THE BRANDON MAYFIELD CASE 1-2 (2006), available at http://www.justice.gov/oig/special/s0601/final.pdf.
363. See id. at 252 ("The only factual underpinning for th[e]inference [that Mayfield had false travel documents]was the existence of a fingerprint believed to be Mayfield's on the plastic bag [of bomb detonators.").
364. P.K. Manning, Technology's Ways: Information Technology, Crime Analysis and the Rationalization of Policing, 1 CRIM. JUST. 83-84 (2001).
365. see also Cole & Lynch, supra note 80, at 48-49 (discussing cold hits in DNA and fingerprint analysis).
366. William C. Thompson, Tarnish on the 'Gold Standard': Understanding Recent Problems in Forensic DNA Testing, CHAMPION, Jan./Feb. 2006, at 10, 13-14 (describing cold hits that resulted from cross contamination).
367. Jackie Valley, Metro Reviewing DNA Cases After Error Led to Wrongful Conviction, LAS VEGAS SUN, July 7, 2011, http://www.lasvegassun.com/news/2011/jul/07/dna-lab-switch-led-wrongful-conviction-man-who-ser (discussing the wrongful conviction of Dwayne Jackson after the laboratory switched samples and wrongly matched him to crime scene evidence).
368. Lawrence Mower & Doug McMurdo, Las Vegas Police Reveal DNA Error Put Wrong Man in Prison, LAS VEGAS REV.-J. (July 7, 2011, 10:22 AM), http://www.lvrj.com/news/dna-related-error-led-to-wrongful-conviction-in-2001-case-125160484.html (same).
369. Mower & McMurdo, supra note 226.
370. Valley, supra note 226.
371. See supra notes 196-99 and accompanying text (describing problems with respect to DNA in property crimes).
372. Horvath & Meesig, supra note 136, at 965.
373. NAS REPORT, supra note 7, at 37.
374. For whatever self-reporting is worth in this context, it is instructive that recent surveys of forensic science "customers" reveal laboratory wait times to be only one of many reasons cited for nonsubmission of evidence.
375. See Pratt et al., supra note 170, at 39-41 (providing numerous reasons for nonsubmission of evidence including lack of funding, expectation of a guilty plea, and no identifiable suspect).
376. There is also good reason to doubt that laboratory backlogs are likely to substantially diminish, at least in the near future; indeed, despite significant dedicated federal funding prior to and since the NAS Report, they have not yet shrunk.
377. See MARK NELSON, NAT'L INST. OF JUSTICE, MAKING SENSE OF DNA BACKLOGS, 2010-MYTHS VS. REALITY 3 (2011), available at https://www.ncjrs.gov/pdffiles1/nij/232197.pdf (presenting graphs showing steady increase in productivity and steady increase in submissions leading to persistent increase in backlogs).
378. Expanded collection of DNA from convicted and, increasingly, arrested individuals-a practice that may well dramatically increase if the Supreme Court ratifies the authority of police to collect DNA from arrestees in the case raising that issue this Term-has a major impact on laboratory resources in this regard.
379. See Maryland v. King, 133 S. Ct. 1, 2 (2012) (discussing the likelihood of the Court granting certiorari in a case raising the issue of DNA collection).
380. see also DUROSE et al., supra note 23, at 4 (reporting that 75% of DNA analysis requests were for arrestee and offender samples).
381. NAS REPORT, supra note 7, at 127.
382. See id. at 234-37 (proposing expansion of "education" for users as well as producers of forensic science).
383. So, for example, it may be that hair examiners can say with a higher degree of confidence that two hairs are consistent with being from the same source, than an eyewitness can say that a face seen in a lineup is in fact the face she saw at a crime scene; the latter would be more discriminating if true, but it might be highly likely to be false.
384. See supra note 233.
385. See supra notes 208-28 and accompanying text.
386. See Ask & Granhag, supra note 210, at 47 (discussing the role of "commitment" in triggering effects of cognitive bias).
387. Horvath & Meesig, supra note 136, at 966.
388. See RICHARD A. LEO, POLICE INTERROGATION AND AMERICAN JUSTICE 143-47 (2008) (discussing interrogation techniques involving scientific or allegedly scientific evidence that law enforcement officers use in order to elicit confessions).
389. see also TRUE STORIES OF FALSE CONFESSIONS 193-202 (Steven A. Drizin & Rob Warden eds., 2009) (describing false confessions in the Central Park jogger case).
390. See, e.g., GARRETT, supra note 2, at 25-26 (discussing the case where a man named Douglas Warney made a false confession).
391. Dan Simon, The Limited Diagnosticity of Criminal Trials, 64 VAND. L. REV. 143-181 (2011) (explaining that when one item in the chain of evidence is erroneous the result can be an "escalation of error" because "evidence items are not truly independent of one another").
392. Compare Paul C. Giannelli, Independent Crime Laboratories: The Problem of Motivational and Cognitive Bias, 2010 UTAH L. REV. 247, 262-66 (supporting complete independence but proposing more limited alternatives that might achieve those aims).
393. with Kenneth E. Melson, Embracing the Path Forward: The Journey to Justice Continues, 36 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 197-217 (2010) ("Advocacy groups critical of forensic science have latched on to the complete removal of crime laboratories from law enforcement Several organizations oppose the removal of crime laboratories from law enforcement agencies, but support different degrees of autonomy within the parent law enforcement agencies.").
394. See Giannelli, supra note 47, at 89-90 (concluding that the NAS Report's recommendations are warranted and that " [t]he government has not only failed to conduct the needed research, it has thwarted any effort to do so").
395. PETERSON et al., supra note 126, at 76 (listing five basic considerations in prioritizing evidence).
396. ROMAN et al., supra note 110, at 9, 349-50 (discussing consequences of delayed crime laboratory response to crime scenes, poor working relationships among police and crime scene responders, and the need to tailor individual training protocols to particular institutional cultures).
397. STATE OF N.Y. OFFICE OF THE INSPECTOR GEN., REPORT OF INVESTIGATION OF THE MONROE COUNTY PUBLIC SAFETY LABORATORY 30-32 (2012), available at http://www.ig.ny.gov/pdfs/MonroeCountyLaboratoryReport.pdf (discussing significant laboratory management failures).
398. Horvath & Meesig, supra note 136, at 966-67 (urging that "improvements in the mutual exchange of information among investigators and others involved in the collection, analysis, and use of physical evidence would enhance the value" of that evidence more than reforming the identity or institutional role of particular actors in collection and analysis).
399. STEPHEN T. GOUDGE, INQUIRY INTO PEDIATRIC FORENSIC PATHOLOGY IN ONTARIO 437-57 (2008), available at http://www.attorneygeneral.,jus.gov.on.ca/inquiries/goudge/report/index.html.
400. See UNDER THE MICROSCOPE, supra note 125, at vii (explaining that the purpose of the 2002 report is to examine the police response to its first iteration, released in 2000).
401. See Forensic Science Regulator, HOME OFFICE, http://www.homeoffice.gov.uk/agenciespublic-bodies/fsr (describing the function of the independent Forensic Science Regulator located within the British Home Office).
402. See Forensic Sci. Regulator, Terms of Reference for the End User Specialist Group (Mar. 21, 2011), available at http://www.homeoffice.gov.uk/publications/agencies-public-bodies/fsr/enduser-sg-terms-of-ref?view=Binary.
403. See End-User Specialist Grp., Minutes of Meeting (Mar. 2, 2010), available at http://www.homeoffice.gov.uk/publications/agencies-public-bodies/fsr/end-user-sg-02032010mins?view=Binary (discussing a regulatory structure and code of practice for forensic science).
404. See Kent Roach & M.L. Friedland, Borderline Justice: Policing in the Two Niagaras, 23 AM. J. CRIM. L. 241, 255-60 (1996) (differentiating the local police structures in Canada and the United States).
405. Kent Roach, Forensic Science and Miscarriages of Justice: Some Lessons from Comparative Experience, 50 JURIMETRICS 67-75 (2009) (detailing the more centralized structure of the criminal justice systems in Canada and the United Kingdom and its impact on the regulation of forensic science in both nations).
406. cf. Matthew C. Waxman, Police and National Security: American Local Law Enforcement and Counterterrorism After 9/11, 3 J. NAT'L SECURITY L. & POL'Y 377, 387-89 (2009) (contrasting American and British institutional relationships concerning policing and the resulting challenges in information sharing and oversight).
407. See ROBIN WILLIAMS & PAUL JOHNSON, GENETIC POLICING: THE USE OF DNA IN CRIMINAL INVESTIGATIONS 102-05 (2008) (discussing the trend).
408. Analyzing the application of economic efficiency-based principles to the forensic science context and recommendations deriving from the "New Public Management" era in the United Kingdom). This was largely the outgrowth of a Thatcher-era embrace of New Public Management and related strategies of broad privatization.
409. See generally Paul Roberts, What Price a Free Market in Forensic Science Services?: The Organization and Regulation of Science in the Criminal Process, 36 BRIT. J. CRIMINOLOGY 37 (1996) (examining the tension between free market reforms and the need for effective regulation).
410. See Notice of Establishment of the National Commission on Forensic Science and Solicitation of Applications for Commission Membership, 78 Fed. Reg. 12-355 (Feb. 22, 2013).
411. See, e.g., CHARTER OF THE SUBCOMMITTEE ON FORENSIC SCIENCE, supra note 12 (describing progress of the subcommittee in creating draft reports in response to the NAS recommendations and forthcoming white paper).
412. See supra note 12.
413. See supra Part I.
414. See Fiscal Year 2011 Awards, NAT'L INST. JUST., http://www.nij.gov/funding/awards/2011-table.htm (last modified June 20, 2012) (showing all NIJ grant awards, including those related to forensic science).
415. Fiscal Year 2010 Awards, NAT'L INST. JUST., http://www.nij.gov/funding/awards/2010-table.htm (last modified Jan. 12, 2011) (same).
416. see also Analysis of 2010-2011 Forensic Science Award Abstracts (on file with author) (showing that among 678 total grants related to Forensic Science, 363 had available abstracts to review for applicability to nonlaboratory work, and only 10.7% had any such component, almost exclusively concerning crime scene work).
417. see also supra note 32 and accompanying text (describing limited pot of non-DNA-specific funding for forensic science).
418. For only a sample of Professor Peterson's field-defining work, see supra notes 20, 26, 102, 112, 124, 126, 186, and 195.
419. Arecent NIJ-sponsored study on the use of DNA in property crimes helpfully combined quantitative and qualitative assessment in this regard, ROMAN et al., supra note 110, at 139-53, and followed up on an earlier assessment of forensic evidence utilization in two urban areas.
420. see Tom McEwen, The Role and Impact of Forensic Evidence in the Criminal Justice System, Final Report 2-3 (Dec. 13, 2010), available at https://www.ncjrs.gov/pdffiles1/nij/grants/236474.pdf (reporting results of NIJ grant-funded research in San Diego and Denver).
421. To the author's knowledge, the most illuminating research in this area with respect to police has been done in Sweden; little has been done in the United States. See supra note 209.
422. See N.Y. STATE BAR ASS'N, FINAL REPORT, supra note 117, at 98-99 (pointing out the discrepancies in standards between crime labs and law enforcement personnel performing forensic disciplines that are not regulated by the New York Commission on Forensic Science).
423. See, e.g., Eyewitness Identification, INNOCENCE PROJECT, http://www.innocenceproject.org/fix/Eyewitness-Identification.php (describing jurisdictions that have adopted requirements concerning law enforcement identification procedures).
424. False Confessions & Mandatory Recording of Confessions, INNOCENCE PROJECT, http://www.innocenceproject.org/fix/False-Confessions.php (discussing jurisdictions that have adopted requirements concerning law enforcement interrogation procedures).
425. see also GARRETT, supra note 2, at 270 (discussing reform momentum).
426. See, e.g., AM. BAR ASS'N, ABA STANDARDS FOR CRIMINAL JUSTICE: DNA EVIDENCE 1 (3d ed. 2007).
427. LISA R. KREEGER & DANIELLE M. WEISS, AM. PROSECUTORS RES. INST., DNA EVIDENCE POLICY CONSIDERATIONS FOR THE PROSECUTOR 3-5 (2004), available at http://www.ndaa.org/pdf/dna_evidence_policy_considerations_2004.pdf (proposing caseassessment team model for DNA cases).
428. COMM'N ON ACCREDITATION FOR LAW ENFORCEMENT AGENCIES, LAW ENFORCEMENT AGENCY STANDARDS chs. 41, 42, 83 (1998) (containing standards relating to forensic evidence and investigations).
429. See COMM'N ON ACCREDITATION FOR LAW ENFORCEMENT AGENCIES, LAW ENFORCEMENT AGENCY STANDARDS ch. 42 (mandating checklists for investigators).
430. New Perspectives on Brady and Other Disclosure Obligations: Report of the Working Groups on Best Practices, 31 CARDOZO L. REV. 1961-1974 (2010) (presenting the proceedings of the working groups endorsing use of checklists by prosecutors and police).
431. See supra notes 116, and accompanying text 154-55 (discussing current deficiencies in documentation of evidence gathering, and proposals by the Technical Working Group on Crime Scene Investigation, CALEA, and outside observers to formalize documentation requirements).
432. See O'Brien, supra note 209, at 1045-46 (discussing structural debiasing options and their limitations).
433. 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, 46-47 (2002) (suggesting the creation of an evidence control unit that is staffed by "the most highly trained and highly respected personnel in the laboratory responsible not only for coordinating work among examiners in different specialties, but also for being the sole contact point between the entity requesting the test and the laboratory").
434. Barkow, supra note 89, at 869-70.
435. Id. at 896 ("In the case of agencies, the law mandates structural separation within the agency itself or aggressive judicial review of the record to ensure unbiased decision making [A]corrective modeled along the lines of the APA's separation requirement would be feasible and desirable in the case of federal prosecutors' offices.").
436. Cf. Ask et al., supra note 209, at 1246 (noting that while good scientific practice dictates that "the person administering a procedure or recording an observation to the fullest possible extent be blind to the hypothesis underlying the study, to avoid any influence from preconceptions and preferences with regard to the results[,]this stringent standard is not feasible in criminal investigations," creating a challenge for investigators who must "discount the knowledge of the case that is irrelevant to the assessment of reliability").
437. Strom & Hickman, supra note 75, at 398 (emphasis added).
438. see also HORVATH & MEESIG, supra note 131, at 112.
439. See GOUDGE, supra note 246, at 447-48 (recommending that Ontario police "be trained to be vigilant against confirmation bias in their investigative work This training is best accomplished through increased professionalism, an enhanced awareness of the risks of confirmation bias, the promotion of an evidence-based culture, and complete transparency regarding what is communicated between the police and the forensic pathologist.").
440. See, e.g., Memorandum from David W. Ogden, Deputy Att'y Gen., U.S. Dep't of Justice, to Dep't Prosecutors (Jan. 4, 2010), available at http://www.justice.gov/dag/dag-memo.pdf (announcing mandatory discovery policies in federal prosecutors' offices in wake of Brady scandals including Ted Stevens's prosecution).
441. Minjae Park, Davis to Law Enforcement: Report Rape Kit Backlog, TEX. TRIB. (May 30, 2012) http://www.texastribune.org/texas-legislature/82nd-legislative-session/wendy-davis-author-rape-kit-law-clarifies-intent (describing legislation enacted to mandate testing of rape kits).
442. See, e.g., Giannelli, supra note 243, at 247-48 & nn.4-9 (citing a number of journal articles and other sources asserting that laboratories associated with law enforcement agencies suffer from inherent biases).
443. See Risinger, Path Forward, supra note 106, at 239 (" [a]ny hope of congressional action to coerce or encourage the establishment of independence of forensic labs from law enforcement control is also dead on arrival.").
444. Jamie Downs, Speech at Texas Criminal Justice Integrity Unit-Texas Forensic Science Commission, Joint Conference on Forensic Science (June 4, 2012), available at https://www.dropbox.com/sh/z0adceaub177maq/kNqQCO_LWy/TCJIU-FSC%202012%20Forensic%20Science%20Seminar%20Video/FSS2012-auditorium-2.rm (reporting that working groups are unlikely to agree on independence recommendations).
445. Richman, supra note 17, at 813.
446. See supra Part I.
447. See supra note 256 and accompanying text.
448. Notice of Establishment of the National Commission on Forensic Science and Solicitation of Applications for Commission Membership, 78 Fed. Reg. 12,355, 12-356 (Feb. 22, 2013) (detailing responsibilities that track NAS Report's professionalization goals and also including a focus on "the intersection of forensic science and the courtroom").
449. NAS REPORT, supra note 7, at 17.
450. See, e.g., Erica Solange Deray, Note, The Double-Helix Double-Edged Sword: Comparing DNA Retention Policies of the United States and the United Kingdom, 44 VAND. J. TRANSNAT'L L. 745, 755-58 (2011) (summarizing the history of DNA collection in America with a focus on statelevel differences).
451. Jeffrey E. Nicoson, A Case for Certiorari: Whether Federal Courts Should Consider State Law When Admitting State-Collected Electronic Surveillance Evidence, 46 U. LOUISVILLE L. REV. 335, 337-38 (2007) (exploring differences between state wiretapping laws).
452. See 42 U.S.C. § 3797k(4) (2006) (requiring that laboratories receiving federal grants create mechanisms for external independent investigations).
453. Oversight of the Department of Justice's Forensic Grant Programs: Hearing Before the S. Comm. on the Judiciary, 110th Cong. 2-3 (2008) (statement of Glenn A. Fine, Inspector General, U.S. Department of Justice).
454. Oversight of the Justice For All Act: Hearing Before the S. Comm. on the Judiciary, 110th Cong. 172-74 (2008) (statement of Peter Neufeld on behalf of The Innocence Project).
455. see also Garrett & Neufeld, supra note 216, at 94 (discussing the neglected state of Coverdell oversight mandate).
456. See generally Goldstein, supra note 23 (discussing models).
457. See generally, e.g., TEX. FORENSIC SCI. COMM'N, supra note 120 (discussing an expert report that found that the conclusions made by Fire Marshall Vasquez in the Willingham arson case were unscientific, and recommending a greater role for prosecutors and defense attorneys, as well as judges, in acting as gatekeepers to ensure that forensic expert testimony should not be allowed unless conclusions made by those experts are reliable).
458. Cf. William C. Thompson & Rachel Dioso-Villa, Turning a Blind Eye to Misleading Scientific Testimony: Failure of Procedural Safeguards in a Capital Case, 18 ALB. L.J. SCI. & TECH. 151, 189-91 (2008) (discussing the reluctance of a Virginia state board to investigate a fundamental evidentiary issue in a capital murder case by determining that the issue could be passed on to the appellate courts).
459. An exception to this rule is the barrier that the Fourth Amendment may create to the suspicion-less collection of DNA specimens for purposes of populating the CODIS databases. The Supreme Court appears likely to take up the question of whether the Fourth Amendment bars such collection and retention on a showing of probable cause to arrest this Term.
460. See Maryland v. King, 133 S. Ct. 1, 2 (2012) (granting a stay of a lower court judgment against the state of Maryland in litigation over arrestee DNA collection, based on likelihood that certiorari would be granted and judgment reversed).
461. See, e.g., Colorado v. Connelly, 479 U.S. 157, 163-64 (1986) (discussing the Fourteenth Amendment's protections against certain types of police interrogatory techniques).
462. Manson v. Brathwaite, 432 U.S. 98, 110-14 (1977) (analyzing the Fourteenth Amendment's requirements for admissibility of identification testimony).
463. United States v. Wade, 388 U.S. 218, 221-22, 224-25 (1967) (analyzing whether the conduct of a lineup and subsequent courtroom identification violated a defendant's Fifth or Sixth Amendment rights).
464. See supra note 146.
465. See Moore v. Illinois, 408 U.S. 786, 794-95 (1972) (finding "no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case" and therefore holding that the prosecution was not required to disclose nonexculpatory statements of witnesses).
466. McNeil v. Wisconsin, 501 U.S. 171, 181 n.2 (1991) ("Our system of justice is, and has always been, an inquisitorial one at the investigatory stage").
467. See, e.g., Town of Castle Rock v. Gonzalez, 545 U.S. 748-761 (2005) (discussing the "deep-rooted nature of law-enforcement discretion" in the American criminal justice system).
468. Arizona v. Youngblood, 488 U.S. 51-58 (1988) (discussing the considerable deference afforded police judgments concerning the significance of evidence as the basis for rejecting a proposed constitutional duty "to preserve all material that might be of conceivable evidentiary significance in a particular prosecution").
469. Wayte v. United States, 470 U.S. 598, 607 (1985) (explaining reasons why the "Government retains 'broad discretion' as to whom to prosecute").
470. Brinegar v. United States, 338 U.S. 160, 176 (1949) (expressing concern that law enforcement not be "unduly hamper[ed+AF0AJg-quot; by too stringent a probable cause standard).
471. See, e.g., Hudson v. Michigan, 547 U.S. 586, 601-02 (2006) (concluding that a violation of the "knock-and-announce rule" did not require suppression of evidence).
472. Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (holding that the Fourth Amendment requires a hearing be held on a defendant's request when the defendant makes a substantial preliminary showing that a false statement was made in a warrant affidavit and that allegedly false statement was necessary to the finding of probable cause).
473. Connick v. Thompson, 131 S. Ct. 1350, 1369 (2011) (Scalia, J., concurring) (characterizing the claim of right to potentially exculpatory forensic evidence as lying on the "frontier" of Brady doctrine).
474. United States v. Ruiz, 536 U.S. 622-633 (2002) (rejecting an extension of Brady to the pretrial plea stage).
475. United States v. Bagley, 473 U.S. 667, 674-75 (1985) (emphasizing that Brady supplements rather than supplants adversarialism).
476. See Lafler v. Cooper, 132 S. Ct. 1376-1397 (2012) (Scalia, J., dissenting) ("In the United States, we have plea bargaining a-plenty, but until today it has been regarded as a necessary evil.").
477. See BRIAN FORST, ERRORS OF JUSTICE: NATURE, SOURCES, AND REMEDIES 41 (2004) (arguing that scientific evidence problematizes the adversarial-inquisitorial line).
478. Susan Haack, Irreconcilable Differences?: The Troubled Marriage of Science and Law, 72 LAW & CONTEMP. PROBS. 1, 12-13 (2009) (contrasting the core business of science and that of a legal system).
479. see also Dist. Attorney's Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52-74 (2009) ("DNA evidence will undoubtedly lead to changes in the criminal justice system. It has done so already.").
480. See generally, e.g., Giannelli, supra note 47 (arguing that there is more than adequate support for the NAS Report's conclusions that meaningful reform requires an independent agency).
481. Mnookin et al., supra note 3 (discussing the need for a research culture in the forensic sciences).
482. Murphy, supra note 28 (challenging the new orthodoxy of forensic science).
483. See Richman, supra note 17, at 782 ("The more technically demanding a warrant process is, the more a prosecutor can use her statutory role to scrutinize an agency's investigation.").
484. see also Findley & Scott, supra note 211, at 384 (discussing that the best way to overcome the issue of tunnel vision is to preserve all notes and evidence for a third-party advisory investigator to analyze).
485. O'Brien, supra note 209, 327-28 (finding that forcing individuals to articulate why a guilt hypothesis might be wrong mitigated confirmation bias, but that forcing individuals to generate multiple hypotheses had no such effect).
486. cf. Heath et al., supra note 151, 5-22 (providing examples of a number of organizational practices that may effectively repair the cognitive shortcomings of individuals).
487. Indeed, a small number of states have adopted discovery reforms reflecting a robust concurrence with this view.
488. See Paul C. Giannelli, Forensic Science, 33 J.L. MED. & ETHICS 535, 539-40 (2005) (arguing that full pretrial discovery disclosure should be required in criminal cases).
489. See 725 ILL. COMP. STAT. ANN. 5/116-5 (West 2008) (permitting a defendant in any case where DNA may be relevant to the defense investigation or at trial to move the court for an order requiring the state police to conduct certain genetic tests or to make certain comparisons or searches within the database).
490. GA. CODE ANN. § 24-4-63 (2010) (providing similar rights).
491. AM. BAR ASS'N, supra note 266, at 140 (providing similar rights through Standard 16-8.3).
492. N.Y. STATE BAR ASS'N, FINAL REPORT, supra note 117, at 99 (arguing for provision of similar rights).
493. see also Lynch, supra note 17, at 2117 (arguing that the pretrial phase of a case might bear more adversarial process).
494. See Dist. Attorney's Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 74-75 (2009) (pointing to "active+AFsAXQAm-quot; efforts by state governments to manage the "challenges" and "opportunities" to the criminal justice system posed by DNA as reason to act cautiously in constitutionalizing a right of access to evidence).