Following up on my last post, in which I asked why there were still no national standards for forensic science five years after the National Academy of Sciences’2009 report Strengthening Forensic Science in the United States, and with scandal after scandal in U.S. crime labs all over the country, there may be light on the horizon.  On January 10, the U.S. Department of Justice (DOJ)  and the National Institute for Standards and Technology (NIST) announced the formation of the National Commission on Forensic Science.

According to the announcement issued by DOJ and NIST:

Members of the commission will work to improve the practice of forensic science by developing guidance concerning the intersections between forensic science and the criminal justice system. The commission also will work to develop policy recommendations for the U.S. Attorney General, including uniform codes for professional responsibility and requirements for formal training and certification.

John P. Holdren, Assistant to the President for Science and Technology and Director of the White House Office of Science and Technology Policy, said that the Commission “will help ensure that the forensic sciences are supported by the most rigorous standards available—a foundational requirement in a nation built on the credo of ‘justice for all.’ ”

The formation of the Commission could be the a significant milestone in the march toward the use of real science and defensible national standards in forensic labs.  But it may be limited in what it can achieve just by its creation and structure: it is not a body created by Congress with power to come up with and implement standards or to regulate anything.  Rather it is a federal advisory committee, formed under the Federal Advisory Committee Act of 1972.  (A quick primer on the Act is here.)   It investigates and debate designated topics, and then reports its recommendations to the relevant federal department(s) that formed it (in this case, the DOJ and NIST).  Those agencies could choose to embrace and follow, or could choose to reject, some, all, or none of the Commission’s suggestions.

Still, this is a hopeful sign that we might be heading in the right direction.  At the very least, we will see a national conversation between the very large number of Committee members; they come from a variety of backgrounds in government, science, the legal system, and elsewhere.  See the list of more than thirty Commission members at the bottom of this announcement.

I hope readers will weigh in on the following question: realistically, what will come from the Committee?  Will the government adopt these recommendations?  Will the recommendations include national standards to regulate forensic testing, assure quality control, and the like? In the end, will the work that you foresee coming from the Commission improve the U.S.’s largely unregulated system?

Here we are, more than a month after chemist Annie Dookhan, formerly of the Massachusetts State Drug Laboratory, entered a guilty plea to producing fraudulent forensic testing results, and went to prison.  The scandal, potentially involving tens of thousands of cases, has resulted in the release of hundreds of convicted persons. All of this has reportedly cost the state of Massachusetts more than 8 million dollars, and the state has budgeted almost 9 million more for the continuing damage.    Readers have seen coverage of the Massachusetts scandal, and several others, here and here and here.

But Dhookan and the Massachusetts Drug Laboratory are far from alone.  According to a report by National Public Radio, there have been  twelve major crime lab scandals in the U.S. in just the last two years.  With all of this damage  — to individual cases and defendants, to state and local budgets, and to the public trust — occurring all over the country, how have policy makers at the national level responded?

Well, they haven’t.  At least not yet.

Almost five years after the release of the National Academy of Sciences’ report “Strengthening Forensic Science in the U.S.: A Path Forward,” which recommended (among other things) the establishment of national industry standards for forensic labs and a National Institute of Forensic Science,  as well as the independence of every crime lab from police agencies and prosecution offices, none of this has happened.  Nor is accreditation of laboratories required.

According to National Public Radio, Senators John Cornyn of Texas and Patrick Leahy of Vermont “are working to introduce legislation this year” which could address some of these problems.  But nearly five years after the NAS report, and with the parade of crime lab scandals  continuing without let up, why has it taken five years to get to this very preliminary point?

Readers, would mandatory national standards help?  Are they appropriate?  What about requiring accreditation?

If you are from outside the U.S., does your country set mandatory national standards for crime labs?  Is accreditation required?

The time has long since passed for us to do something about this set of problems in the U.S.  We just can’t afford the damage to the credibility of our criminal justice system and the costs of  reviewing cases and releasing convicted prisoners — some of whom may very well be guilty, but whose cases are tainted.

New York City will have a new mayor in 2014.  In my article “Ten Steps Bill de Blasio and Bill Bratton Should Take to Fix Stop-and-Frisk,” published in The Nation, I offer a way forward for Mr. de Blasio to start repairing the damage done by the Bloomberg-era policing of the last 12 years.

New York, and indeed the entire country, is waiting to see what the newly sworn-in Bill de Blasio will do the first week of January to fulfill his promise to reform stop-and-frisk.  His first step should be to drop the appeal of Floyd v. City of New York, a move he promised to make many times on the campaign trail….Once the stop-and-frisk appeal is dropped, here are the top ten steps de Blasio and Bratton should take as part of the Floyd remedies process to move forward with stop-and-frisk reform and end racial profiling.

Among the steps I recommend: allowing community stakeholders to be part of the reform process; setting up an independent monitor, and creation of an early warning system.  Many of what you’ll read echo what is in the court’s opinion setting out the remedies for the violations the evidence proved.

To get at least some sense of what Bratton’s approach may be, take a look at this article from the Wall Street Journal on December 20. Perhaps “collaborative policing” — Bratton’s most-frequently-used phrase so far — will include allowing stakeholder participation in the fashioning of reforms; it is too early to tell at this point.

The International Association of Chiefs of Police (IACP) is one of the leading organizations for law enforcement professionals in the U.S. and around the world.  I regularly turn to their model policy and training documents when working on those issues for police agencies.  So it’s a big deal to see their new report, prepared in conjunction with their partner, the U.S. Department of Justice Office of Justice Programs, announcing that their new effort in which they will play a leading role in fixing the problems in police investigation that cause wrongful convictions.

The report, titled, “National Summit on Wrongful Convictions: Building a Systemic Approach to Prevent Wrongful Convictions,” takes a full view of the issues that must be addressed to avoid convicting the wrong people, and announces a series of recommendations designed to bring the goal within reach.  It is based on work at a summit of people from IACP, DOJ, and a host of experts.  In a preliminary statement in the report, the President of the IACP and the Assistant Attorney General for the Office of Justice Programs, outlined how the report came to be and what it does.

This event gathered 75 subject matter experts from all key disciplines to address and examine the causes of and solutions to wrongful convictions across the entire spectrum of the justice system. Summit participants worked diligently during this one-day intensive event to craft 30 focused policy recommendations that guide the way to our collective mission to continually improve the criminal justice system. The summit focused on four critical areas: (1) making rightful arrests, (2) correcting wrongful arrests, (3) leveraging technology and forensic science, and (4) re-examining closed cases. The 30 resulting recommendations directly address these areas and lay a critical foundation for required changes in investigative protocols, policies, training, supervision, and assessment.

The report makes thirty recommendations on a number of topics: eyewitness identifications, false confessions, preventing investigative bias, improving DNA testing procedures, CODIS, correcting wrongful arrests, leveraging technology and forensic science, and re-examining closed cases with an openness to new information.

The report is absolutely essential reading for anyone interested in wrongful convictions and what can be done to correct them.  Readers of my book Failed Evidence will also recognize that the emergence of this consensus at the top of the law enforcement profession is exactly what I have called for: “Police and Prosecutors Must Lead the Effort” (pp. 158-159).

The use of DNA identification as a forensic tool, beginning in 1989, changed the way that we think about guilt, innocence, and traditional police investigation.  It isn’t just the 311 wrongful convictions that DNA identification has confirmed; it’s the far more numerous cases in which DNA has determined guilt — sometimes in cases years or decades old.

Now DNA identification is about to change: it will become even more powerful than it is now.  A new way of processing and interpreting DNA has arrived that will make our current DNA techniques look weak by comparison.

On Friday, Nov. 8, I attended an incredibly interesting talk by Dr. Ria David.  Dr. David is one of the co-founders of Cybergenetics, a company based in Pittsburgh.  Cybergenetics has perfected computer-based techniques and technologies that will change the way that DNA is analyzed.  With Cybergenetics’ TrueAllele (R) system, the analysis relies the power of computers instead of interpretation done by humans.   The talk was sponsored by the Center for Women’s Entrepreneurship (CWE) at Chatham University.  (Disclosure: my wife runs CWE; my wife and I know Dr. David and her Cybergenetics co-founder, Dr. Mark Perlin, but neither my wife nor I have any personal or financial ties of any kind to Cybergenetics.)

Most of us know that a DNA sample allows forensic scientists to say things like “the odds that this sample came from anyone other than the defendant are fifty million to one.”  Pretty powerful stuff — until you learn that Cybergenetics’ systems will allow prosecutors to offer juries odds of not tens of millions to one, but trillions or even quadrillions to one.  In addition, Cybergenetics will allow analysts to pull apart mixtures of DNA from different people, which is common at crime scenes, and which current DNA technology often can’t handle.  Readers of my book Failed Evidence: Why Law Enforcement Resists Science can get a little more information in Chapter 7, pp. 186-190; you can get the book here.

Cybergenetics’ DNA system has found ready acceptance in the United Kingdom, but the process has been slower in the U.S. There has been considerable resistance — something readers of Failed Evidence are quite familiar with — particularly at the FBI, which governs current DNA protocols and use.

There is much more to how the Cybergenetics’ TrueAllele system works, and what it can do; I’d urge readers to take a good look at Cybergenetics web site, which gives details on what they do, and the many criminal cases and mass disaster identification cases (including the identification of remains at the World Trade Center site).  Once law enforcement sees what this new method of using DNA can do, and once resistance to change is overcome, DNA will be able to identify many more guilty criminals, as well as exonerate many more of the wrongfully convicted, and it will do so with more certainty that we ever thought possible.

 

In mid October, police in New York City announced that they had solved the mystery of the “Baby Hope” case:  at last, they had the killer of a four-year-old child whose body had been found in 1991, 22 years ago.  And the accused killer, Conrado Juarez, had confessed.

Days later, Juarez  recanted the key part of his confession.  He said that under intense pressure by police during a long interrogation, he had lied:  he had not killed the child.  He had only helped his sister dispose of the body at her request.  He said that he had lied about killing the little girl because  “after a while and after so much pressure [from police], I accepted it and said what they wanted,”

The accused may have been telling the truth when he said he killed the victim, or when he said that he actually didn’t.  I certainly don’t know the answer to that.  But one thing that would help to resolve the question would be a video and audio recording of the entire interrogation, from start to finish.  A judge or jury could then look at the entire thing and decide whether the accused was coerced or not.  And over a year ago, NYPD Commissioner Ray Kelly announced that, after a long pilot project, the NYPD would begin recording all interrogations in homicide, felony assault, and sexual assault cases.

But in this case, that was not done.  Instead, a recording of only the confession itself — a statement of guilt by Juarez at the end of the process — was made.  No recording was made of the questioning that lead up to it.  So we have no record of how police got to the point of getting the admission of guilt.  And that leaves the confession in dispute: the accused will argue that he was coerced, and the police will say they did nothing to coerce him.  But there will be no recording for a judge or jury to see.

Why did this happen?  According to the NYPD spokesman quoted in media reports, “only 28 detective squads — there are more than 76 across the city — have an interview room set up with recording equipment.”  The interrogation did not take place in one of those 28 squads.  Getting the equipment into all of those police facilities just takes time, and so far, the Department remains a long way from completely implementing Commissioner Kelly’s order.  (It is worth noting that the detectives in the Baby Hope case did not take the suspect to one of the buildings that already has the equipment  necessary to record.)

Or maybe it’s something else else.  According to Michael Palladino, the head of the NYPD’s detectives union, it’s better if interrogations don’t get recorded.  “There are certain tricks of the trade, I should say, that I think should not play out in front of the jury.”   But the cost of hiding these “tricks” is that we now have uncertainty in the Baby Hope case.  And, after so many cases of wrongful convictions including false confessions — they show up in 25 percent of all DNA-based exonerations — there is a loss of public confidence.

Here’s hoping that things move faster as the NYPD transitions to the recording of confessions.  Assuming that they have the real killer of Baby Hope, we all want the guy off the street.  We don’t need uncertainty introduced because there’s resistance to recording.

According to a new study by researchers at Florida International University, the use of standard interrogation techniques can prompt false confessions by juveniles; the risk is higher with juveniles than with adults.

Dr. LIndsay Malloy, the lead researcher on the study, says that “people need to understand that juvenile suspects are especially vulnerable in the interrogation room,” because “the ways in which we question youth can have potentially devastating consequences in some cases.”

The study by Dr. Malloy and her colleagues, “Interrogations, Confessions, and Guilty Pleas Among Serious Adolescent Offenders.” appears in the journal Law and Human Behavior.  It was funded by the National Institute of Mental Health.  Here’s the abstract::

In the present study, we examined (a) the prevalence and characteristics of youths’ true and false admissions (confessions and guilty pleas), (b) youths’ interrogation experiences with police and lawyers, and (c) whether youths’ interrogation experiences serve as situational risk factors for true and false admissions. We interviewed 193 14- to 17-year-old males (M = 16.4) incarcerated for serious crimes. Over 1/3 of the sample (35.2%) claimed to have made a false admission to legal authorities (17.1% false confession; 18.1% false guilty plea), and 2/3 claimed to have made a true admission (28.5% true confession; 37.3% true guilty plea). The majority of youth said that they had experienced high-pressure interrogations (e.g., threats), especially with police officers. Youth who mentioned experiencing “police refusals” (e.g., of a break to rest) were more likely to report having made both true and false confessions to police, whereas only false confessions were associated with claims of long interrogations (>2 hr) and being questioned in the presence of a friend. The number of self-reported high-pressure lawyer tactics was associated with false, but not true, guilty pleas.

According to the researchers, the results call for “specialized trainings for those who interrogate youth, recording interrogations, placing limits on lengthy and manipulative techniques, and exploring alternative procedures for questioning juvenile suspects.”

You can see the full abstract here.  The study supplies yet another set of reasons to examine carefully our interrogation practices, to give up on interrogation for the purpose of getting a confession (instead, use the UK’s PEACE method), and to record all interrogation as a precondition to using them in court.