Ten Years Later: The Lasting Impact of the 2009 NAS Report
02.19.19 By Innocence Staff
This week, the Innocence Project commemorates the 10-year anniversary of the groundbreaking report, Strengthening Forensic Science in the United States: A Path Forward. The National Academy of Forensic Science (NAS) released the report in 2009, and over the past 10 years, it has served as the foundation for much of our science-driven, policy-based reform and strategic litigation efforts. It established a blueprint for forensic science research, engaged the scientific research community and spurred various meaningful science-based criminal justice reforms. Importantly, it has fostered a new understanding of the intersection of forensic science and the criminal justice system, and it continues to influence an important debate on the courts’ gatekeeping responsibilities.
Peter Neufeld, co-founder of the Innocence Project, reflects:
Science and law have existed in two different worlds with contradictory principles and paradigms. Before the NAS report, forensics was held accountable only to the principles established by the law rather than science. The NAS report called on the scientific community to help the criminal justice system establish the resources and processes needed for forensics to move toward the promise of neutral truth teller. The progress that it set in motion cannot be understated—it is not an exaggeration to say that the report has freed innocent people and saved lives.
John Hollway, associate dean and executive director of the Quattrone Center for the Fair Administration of Justice, adds, “The intellectual rigor of the NAS participants and the depth of their investigation have spurred calls for reform and set an important bar for forensic review of potential evidence in criminal cases.”
Related: It’s National Forensic Science Week!
Citing the “notable dearth of peer-reviewed, published studies establishing the scientific bases and validity of many forensic methods,” the NAS report pierced the general perception of the reliability of forensic evidence. The report was the first organized voice of research scientists recognizing the limitations of pattern evidence techniques and the urgent need to address these limitations.
The report primarily concluded that, except for nuclear DNA analysis, many commonly used forensic techniques had not undergone the necessary testing to establish sufficient validity and reliability to support claims made in court. The report called for research that would examine the scientific foundations and limitations of several critical forensic disciplines, including: bite mark analysis, microscopic hair analysis, shoe print comparisons, handwriting comparisons, fingerprint examination and firearms and toolmark examinations. According to the report, these forensic methods did not “have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”
Based on its findings, the NAS report made thirteen recommendations, including the creation of an independent, scientific oversight entity for forensic science, investing in research and standards setting, addressing cognitive bias in the practice of forensic testing and educating judges and legal practitioners. The Innocence Project heeded the call of the report and for the last 10 years, has been advocating with other scientific and criminal justice stakeholders for research funding, standards setting and oversight for forensic science practices.
“Today, forensic science conversations between criminal justice and scientific stakeholders around the world begin with the NAS report.” – Chief Justice Bridget McCormack
Over the past ten years, the National Institute of Justice has spent more than $123 million on grants to address the research needs outlined in the NAS report, including improving accuracy and reliability of methods and quantifying measures of uncertainty. This investment has yielded evidence that advanced some forensic science disciplines from their status as ‘reviewed by the NAS report in 2009’ to ‘improved levels of validity.’ Notably, a 2016 report published by the President’s Council on Advisors on Science and Technology concluded that latent print comparison had achieved foundational validity and that firearm comparisons had taken strong steps toward achieving that status. The report also spurred the foundation of the National Commission of Forensic Science in 2013, which operated until 2017.
Also since the report’s publication, a distinguished group of statisticians, legal scholars and scientists from other fields have collaborated with the Innocence Project on amicus briefs to help educate the courts on the limitations of the forensic techniques outlined above. Dr. Clifford Spiegelman, a signatory of these amicus briefs and a distinguished professor of statistics at Texas A&M, observed:
Research scientists who challenged foundational aspects of forensic science before the NAS report was published were often dismissed. The report not only provided a critical scientific consensus that supported our concerns, but it is advancing science to change lives. In my home state of Texas, it has led to the courts to abandon bite mark evidence and exonerate Steven Chaney, who spent 28 years in prison for a crime he did not commit.
In addition to Steven Chaney, these efforts have resulted in the exoneration of George Perrot (microscopic hair comparison analysis), Timothy Bridges (microscopic hair comparison analysis) and Alfred Swinton (bite mark).
Related: Misapplication of Forensic Science
In July 2013, the Innocence Project, the National Association for Criminal Defense Lawyers (NACDL) and pro bono partner Winston & Strawn LLP, announced a historic partnership with the Federal Bureau of Investigation (FBI) and the Department of Justice (DOJ) to review nearly 3,000 criminal cases in which microscopic hair analysis conducted by the FBI was used to inculpate the defendant(s). This review was spurred by the problems with microscopic hair analysis identified in the NAS report, and by the exoneration, based on DNA evidence, of three men for whom the testimony by FBI hair examiners exceeded the limits of science. More than 90 percent of the first 257 cases reviewed contained one or more types of testimonial errors.
Given the impact of the FBI Hair Review and knowing that research advancing forensic science knowledge will impact the meaning of evidence in cases, the Innocence Project has also advocated for statutory mechanisms to allow individuals to get back into court to prove their innocence based on evolving science or expert repudiation. Chief Justice Bridget McCormack, who supported the implementation of a court rule in Michigan that allows post-judgment motions for relief based on new scientific evidence, acknowledges the far-reaching impact the report has had within both the legal and scientific fields:
Today, forensic science conversations between criminal justice and scientific stakeholders around the world begin with the NAS report. The forensic science field has experienced an evolution that would not have been possible without the report’s publication. Innocent people have been freed from prison, and consequently, the people who actually committed the crimes have been identified. The forensic science community has partnered with researchers to conduct research, improve forensic testing standards and implement new quality management practices.
In the years ahead, the Innocence Project will continue to work with research scientists, forensic scientists and other criminal justice stakeholders to support scientific advancements in forensic science and to address the need for change in the way evidence is evaluated and applied in the courts. Senior United States District Judge of the United States District Court for the Southern District of New York Jed Rakoff comments:
The National Academies’ report on Strengthening Forensic Science was the first serious and objective look at the forensic science evidence that had for decades been routinely received by the courts — and what it revealed was that too much forensic science did not adhere to basic scientific principles and was sometimes little more than guesswork. Still, the impact of the report, modest at first but gathering steam in recent years, might not have been so great if it were not for the fact that the work of the Innocence Project established that questionable forensic science testimony was often associated with wrongful convictions. This one-two punch has slowly but surely caused a growing number of judges to explore with much greater rigor than previously the reliability, and admissibility, of much forensic science testimony that they used to take for granted.
To that end, the Innocence Project pursues mechanisms to ensure the duty to correct forensic science problems and notify defendants through state forensic science commissions, state laws that enable defendants to ask for review of forensic evidence in their cases if science has evolved or an expert retracts their testimony, litigation and amicus opportunities to highlight the application of forensic disciplines used beyond their scientific limits and providing training to legal professionals.
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