Innocence Project Responds to Remarks by Deputy Attorney General Before the American Academy of Forensic Sciences

Today Deputy Attorney General (DAG) Rod Rosenstein gave a plenary address at the annual meeting of the American Academy of Forensic Sciences where he outlined plans that the Department of Justice (DOJ) would be implementing regarding forensic sciences.  While short on details, his remarks renew concerns that the DOJ is backtracking on progress to ensure that forensic disciplines are guided by the best science and that safeguards were enacted to insulate practitioners from law enforcement influence.

“We’ve known since 2009 that there are problems with the scientific validity of forensic disciplines used to identify suspects with the exception of DNA evidence.  Yet after this administration shut down the National Commission of Forensic Science — the first inclusive and transparent effort to address these fundamental flaws in evidence that is used in countless prosecutions across the nation — there was no mention by Deputy Attorney General Rosenstein of how the Department of Justice plans to address this core validity problem,” said Chris Fabricant, director of Strategic Litigation at the Innocence Project, which is affiliated with Cardozo School of Law.

In his remarks, DAG Rosenstein announced that DOJ was implementing uniform language for analysts to use when testifying or providing reports on latent fingerprint analysis. While he stated that the final document was informed by comments of experts outside of DOJ, this process was not described. “The initial attempt by the DOJ to develop uniform language fell far short of meeting the standards for science,” said Glinda Cooper, director of Science and Research for the Innocence Project.  “Although we support efforts to develop uniform language, we do not know if the DOJ’s efforts have adequately addressed the significant and critical concerns previously raised by independent statisticians and scientists, and we won’t know this without having the opportunity to review the revised language.”

The need to implement uniform language for analysts arose after it was discovered that FBI agents provided erroneous statements or reports in more than 90 percent of cases reviewed where an analyst identified a suspect through microscopic hair analysis.  These were the preliminary findings from a review of FBI cases involving microscopic hair analysis initiated after three men were wrongly convicted and wrongly spent decades in prison based at least in part on erroneous FBI testimony.

After these errors came to light, the DOJ agreed that in addition to establishing uniform language for all the forensic disciplines practiced by the DOJ, it would go back and review the prior testimony from a subset of the cases involving these disciplines between 2008 and 2012.

In his remarks today, DAG Rosenstein seemed to back away from the previous commitment to review these past cases, only calling for a testimony monitoring program moving forward.

In 2009, the National Academy of Sciences issued a groundbreaking report warning that, with the exception of DNA evidence, none of the forensic practices that are used by law enforcement to identify a suspect from crime scene evidence have been scientifically validated.  These include firearms and spent ammunition, tool marks, shoe prints and bite marks. The NAS report called on an independent federal agency to conduct the research to validate those disciplines that could be scientifically validated.  It’s been nearly a decade since the NAS report, and the only effort to engage stakeholders outside of DOJ – creation of the National Commission on Forensic Science – was shuttered in early 2017 by Attorney General Sessions.