The U.S. Department of Justice announced recently that it will reopen work on setting federal standards on the appropriate way for analysts to testify about forensic evidence and techniques.
In 2015, the DOJ added confirmation to the case against exaggerated forensic testimony that had long been in the making. Following an extensive review of hundreds of trial transcripts where FBI hair analysts testified, the agency found that the analysts had overstated the validity of microscopic hair analysis in at least 90 percent of the cases.
The reliability of other common forensic techniques have been called into question, too. Bite-mark analysis, handwriting comparison evidence, bite mark evidence and other common techniques have been the subject of longstanding concerns.
After the 2015 review, the FBI developed a set of draft standards for the use of chemical and drug analysis, toxicology, body fluid testing, latent fingerprinting and others. The draft standards were completed last year and were to apply to the Drug Enforcement Administration and Bureau of Alcohol, Tobacco, Firearms and Explosives as well as the FBI.
The draft recommendations were in the comment and review process, but the Trump administration halted work on them.
In April, the Trump Justice Department also disbanded an independent expert panel that was working on a full-scale review of how reliable forensic techniques actually are and what analysts should be allowed to say about them in court. That group, National Commission on Forensic Science had been set to release its final report just as it was disbanded.
Now, a deputy attorney general has announced the formation of an internal “forensic science working group.” Unlike the National Commission, it will not be independent but will presumably be made up of federal prosecutors and prosecution experts.
Its primary goals are to set national standards for how analysts should testify about the forensic techniques they use, and to create a monitoring system to ensure compliance. It will also be looking into the nation’s underfunded and overburdened crime labs. It is not clear, however, whether the group will take a hard look at whether forensic techniques are actually scientifically valid.
“We must use forensic analysis carefully, but we must continue to use it,” said the deputy attorney general. “We should not exclude reliable forensic analysis — or any reliable expert testimony — simply because it is based on human judgment.”
Many criminal justice reformers and criminal defense attorneys are concerned that an independent commission would offer a fairer perspective on forensic evidence and testimony. A group made up of prosecutors and prosecution witnesses may be biased by the fact that they rely on such evidence to build their cases.