September 21, 2021 11:07

Why We Need a National Forensic Science Agency

Forensic science is about to be dramatically transformed in Britain.

A bill now in the final stages before it becomes law later this year, the Forensic Science Regulator Act, will put the implementation and enforcement of forensic science standards under the oversight of a single central government official.

The post of forensics regulator already exists; but under the new law, he or she will be able to mandate quality standards in forensic science for all practitioners, and in all disciplines across the industry―an outcome that has eluded every regulator since the inception of the role.

Despite the differences in political systems, U.S. experts who are rightly concerned about the continuing reliance in American courtrooms on poorly validated and often junk scientific methods to support criminal prosecutions might want to take a closer look at what has been going on in the U.K. and other European countries.

The provision of forensic science for criminal prosecutions became increasingly fragmented in the U.K. after the Forensic Science Service was abandoned in 2012.

Three major corporations now service the market: Key Forensics, Cellmark and Eurofins. They operate within a strict quality management regime that is audited and inspected by the United Kingdom Accreditation Service (UKAS)

At the same time, small, medium sized and single-operator businesses have moved into the niche to serve specialist science requirements, including the growing digital market, and they have found the road to quality standards accreditation difficult.

In addition, the police forces that provide a range of functions such as crime scene investigation, fingerprints, footwear and blood-trace analysis have resisted every effort to require them to gain UKAS accreditation, citing prohibitive costs.

That’s one reason why the new UK statute is welcomed by Dr. Anya Hunt, CEO of The Chartered Society of Forensic Sciences, the professional body representing forensic practitioners worldwide.

“For too long there has been resistance to accreditation based on the work required to achieve it and the costs associated with it,” she said in an interview with The Crime Report.

“ Forensic practitioners should see a robust quality management system as an asset. At the Society we have developed a Generic Quality Management System and a network of reviewers and auditors who support scheme participants on their entire quality management journey.

“The scheme is available to all forensic practitioners enabling them to achieve and maintain accreditation, in a timely and cost-effective fashion, reducing the time away from fee earning.

“We are now ready to meet the requirements of statute that will be enforced by the regulator, and look forward to working with all parties to achieve it.”

As she notes, the new Act is a vital step to ensure that all forensic science disciplines in the UK provide the best scientific outcomes for the courts.

Those who follow the vagaries of the U.S. justice system were dismayed at one of the final acts of the Trump administration’s Department of Justice (DOJ). In an unsigned 26-page statement on Jan. 13, the department renounced the findings of a previous milestone report on forensic science published by the President’s Council of Advisors on Science and Technology (PCAST) in 2016.

That report, based on robust evidence and research, severely criticized the use of invalidated and flawed forensic science to secure convictions. In essence, the DOJ left the door open for these sciences to continue to be used―the very sciences that have historically contributed to hundreds of wrongful convictions in the US.

‘Smoke and Mirrors’

Less than a month later, Slate echoed this conclusion by calling the decision a “smoke-and-mirrors attempt to use the credibility of the federal government to prop up the uncritical use of flawed forensic evidence that has contributed to hundreds of wrongful convictions.”

 Slate added: “Like the Trump administration’s last-minute execution spree, the statement seems calculated to advance a regressive, reactionary, and cruel system of criminal prosecution.”

The UK forensic science community have always been determined not to be caught out in this way.

The ability of forensic scientists to independently, impartially and robustly present forensic science evidence to the courts has always been regarded as critical.

But with the fragmentation of the service to allow new providers into the market there was rightly a call to ensure that all scientific disciplines and newly developing practices such as human gait analysis, bitemarks analysis and digital forensics could demonstrate their validity as robust sciences in their own right.

This, coupled with police forces insourcing their own scientific activities, meant regulation and quality standards accreditation were needed to validate the authenticity of all of the scientific practices.

As a former senior cop with many years of experience working in and around forensic science, I know how difficult it has been to arrive at a point where regulation of a mature industry in the UK was required.

Science is continuing to develop new and innovative practices in support of justice, and it’s right that it can be formally accountable to a regulator with statutory powers mandated through robust quality accreditation controls. This is now about to happen.

So, can the U.S. learn from this?

The scientific disciplines that support criminal justice in both the UK and U.S. systems are broadly similar. The problem is the scale and complexity of providing a fair and consistent use of forensic science across local, state and federal jurisdictions.

There is an over- reliance on forensic evidence to convict, often in the absence of any other substantial evidence

It can also be argued that the political landscape requires prosecutors, appointed politically or with political party affiliation, to prosecute cases successfully. There is, perhaps, an over- reliance on forensic evidence to convict, often in the absence of any other substantial evidence.

And forensic evidence, as pointed out time and again through miscarriages of justice, will continue to let society down without proper quality controls, validation and accreditation of both the science and scientists,.

President Biden’s new scientific adviser Eric Lander has the opportunity now to redress the balance.

Serious bodies of work have already recommended reforms in forensic science in recent years. There is the PCAST report I cited earlier in this article, and there is the Office of Justice Programs report “Strengthening Forensic Science” 

The most recent iteration of how the system of forensic science needs to change is in the National Institute of Justice, Office of Justice Programs, report to Congress in 2019.

The 200-page report makes key points in a comprehensive needs assessment. It says that a strategic approach to planning, accompanied by sufficient and consistent funding of the whole gamut of forensic science within an institutionalized system of communication is required.

It could be deduced from this that the report is pointing the way towards a national, federal approach to service provision. This would be a huge undertaking, but not impossible, as size and complexity should not necessarily be an issue.

Europe already provides an example of a working approach. All members of the European Union provide a consistent approach to forensic science through quality management, communication, education, training and research and development through the European Network of Forensic Science Institutes (ENFSI).  Some 17 Expert Working Groups collaborate.

The beginning of a four-year presidential administration offers an opportunity for real change in a number of criminal justice areas. Forensic science should be on the list.

It cannot be beyond the administration to consider introducing a new federal body to oversee the regulation and accreditation of properly validated forensic science in the U.S. by scientific practitioners whose methods are robust, utilizing best practices from overseas.

In the interests of a fair justice, it’s time to end the use of junk science in U.S. courts, once and for all.

Perhaps a newly commissioned Federal Forensic Science Service could achieve this.

Additional Reading:

When Forensic Evidence Convicts the Innocent, The Crime Report, May 3, 2021

Will Biden’s Top Science Adviser Reform Forensics? The Crime Report, Jan. 22, 2021.

Houston Forensics Lab Emerges as National Model for Reform, The Crime Report, April 26, 2021

Gareth Bryon, a former Detective Chief Superintendent, served as a senior officer in the South Wales Police and the British Transport Police, where he led major crime investigations and forensic science services for 30 years.

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