Deputy Attorney General Sally Q. Yates Delivers Remarks at the Ninth Meeting of the National Commission on Forensic Science

We’ve got a lot to cover today and so I’m going to keep my remarks brief. 

First, I’m pleased to announce that we are expanding the Department of Justice’s forensics team.  As you know, there’s a lot we’re trying to accomplish in the remaining months of the administration – from launching our “quality assurance review” of forensic science disciplines, to reviewing and implementing this commission’s recommendations, to building relationships with other federal agencies, especially in the area of medicolegal death investigation. 

I’ll be the first to admit: I’m a lawyer, not a forensic scientist.  I care deeply about making sure our criminal justice system operates in a fair and just manner – and I know firsthand that’s only possible when we use forensic evidence in a responsible, scientifically rigorous way.  But as DOJ expands its efforts, our work becomes more and more technical and we need people who have deep expertise in forensics when designing our policy response.

As we sought to expand our team, I was looking for someone outside the Justice Department – ideally, a well-respected academic who understood both science and law, who had actually worked a forensic practitioner and who had experience inside a large institution. 

We found the perfect fit.  Many of you already know Dr. Victor Weedn.  He just completed a term as the President of American Academy of Forensic Science.  He is chairman of the Department of Forensic Sciences at George Washington University (GW), here in Washington, D.C.  He founded the Armed Forces DNA Identification Laboratory.  He has both a law degree and a medical degree; he has served as a medical examiner and as a regional lab director; and he has published dozens of peer-reviewed journal articles.  His judgment and insight are informed by his decades as a leader in the forensic science community. 

I’ve asked him to join the Office of the Deputy Attorney General for the final months of the administration.  We are finalizing the paperwork with GW now and we expect him to start work shortly.  He will advise me on a range of forensic science matters, helping us ensure that all of DOJ’s policies are rooted in sound science.  He will also serve as our office’s primary point of contact with this commission. Thank you, Dr. Weedn and we look forward to working with you. 

I also want to introduce you to Jonathan Wroblewski, who recently took over as head of DOJ’s Office of Legal Policy (OLP).  Early in his career, he served as both a state public defender and as a prosecutor in DOJ’s Civil Rights Division and since 1998, he has worked the Office of Policy and Legislation for DOJ’s Criminal Division.  This past December, the Attorney General asked him to lead OLP, which has long assisted the department in the development of forensic science policies.  Thank you, Jonathan and to your entire team, for all the work you’re doing. 

Many of you attended the American Academy of Forensic Science meeting last month, where I outlined the department’s plans to conduct a “quality assurance review” of certain forensic science disciplines.  I know that the speech generated considerable interest in the forensic community and I recognize that many people have questions about our next steps. 

As I made clear during my speech, I truly believe that DOJ operates some of the very best forensic laboratories in the world.  We strive to set the global standard for excellence and we are always striving to be better. 

We recognize how important it is that we accurately convey the strength of our forensic evidence to judges and juries.  The authority afforded to scientific experts is second to none and we must make sure that our statements are clearly supported by sound science. 

As you know, over the last few years, DOJ has worked with the Innocence Project and the National Association of Criminal Defense Lawyers regarding the FBI’s use of microscopic hair comparison analysis prior to the year 2000.  We’ve learned that, in at least some of the cases reviewed, lab examiners and attorneys either overstated the strength of the forensic evidence or failed to properly qualify the limitations of the forensic analysis.  This doesn’t necessarily mean that there were problems with the underlying science – it means that the probative value of the scientific evidence wasn’t always properly communicated to juries. 

During my speech at AAFS, I previewed our plans for a “quality assurance review” of other disciplines practiced at the FBI – to determine whether the same kind of “testimonial overstatement” that we found during our review of microscopic hair evidence could have crept into other disciplines. 

To be clear, we are undertaking this review because we think it is good operating procedure –and not because of specific concerns with other disciplines.  We believe that this review will help ensure the public’s ongoing confidence in the work we do and put the entire field on stronger footing in the future.

We recognize this is no simple task and we want to make sure we do this in a deliberate, thoughtful and transparent way.  That’s why we’ve asked our Office of Legal Policy to design the review – and why we’re seeking feedback from this commission and from the broader public. 

This will be an iterative process.  Today, Jonathan Wroblewski will describe a general framework for how DOJ plans to approach this review.  The goal is to start a conversation and to get your input on the best path forward.  After today’s meeting, we will open a 30-day period of public comment, so that others can also weigh in.  Based on this feedback, OLP will prepare a more specific methodology, which they will present at the next NCFS meeting.  Once again, we will invite your input and the public’s input.  This will take some time, but it’s absolutely crucial we get it right.

I’ll leave it to Jonathan to discuss the details of this framework shortly.

At the last meeting, Nelson Santos led a discussion on identifying Commission priorities.  This is an important task and I’m glad you are taking additional time this morning to discuss it.  As Nelson said, we want to use the remaining time in this administration as effectively as possible and that requires that we focus on the issues where we can accomplish the most.

Ultimately, we will defer to the judgment of this commission in setting its priorities.  But I strongly encourage you to identify a handful of the most important issues and direct your energy to developing thoughtful, robust recommendations for our consideration.  In addition, we hope to carve our time in future meetings for commissioners to discuss DOJ’s proposals for the quality assurance review, which necessarily requires trade-offs in our schedule.

Nelson will be leading this conversation later this morning and I look forward to hearing what the commission decides. 

I also want to discuss DOJ’s response to several recommendations recently approved by NCFS.  Over the weekend, we distributed to commissioners the Attorney General’s memo regarding this latest batch of NCFS work products.  I know that several Commissioners asked that we release these memos before the start of NCFS meetings and we’ll try our best to continue the practice of making them available beforehand.

We are responding to five work products:

• Recommendation on Root Cause Analysis;
• Recommendation on Interoperability of “Automated Fingerprint Identification Systems” (or AFIS);
• Recommendation to Create a “Medical Examiner and Coroner Electronic Information Network”;
• Views Document on Pre-Trial Discovery; and
• Views Document on Increasing the Supply of Forensic Pathologists.

Given the amount we need to cover this morning, I’ll only say a few words about these.  There will be additional time at wrap-up tomorrow for those of you who want to discuss them further.

Firstly, DOJ strongly supports the use of root cause analysis to identify errors and other non-conformities.  They allow us to identify potential blind spots in our own practices and develop effective corrective measures. 

DOJ makes use of root cause analysis when appropriate.  As I mentioned in my AAFS speech last month, the FBI plans to undertake a root cause analysis regarding its use of microscopic hair analysis and we expect the FBI to solicit bids in the near future.

As many of you know, all accredited forensic science providers are required to have corrective action policies, which include protocols for root cause analysis.  Since DOJ’s non-digital labs are already accredited, these labs have also implemented the necessary corrective action policies.

As we discussed at the last NCFS meeting, some but not all of our digital labs are accredited and we expect a recommendation from the commission in the near future about whether to expand our accreditation mandate to our digital labs.  And so while not all of our digital labs have formal protocols for root cause analysis, they do have their own internal quality assurance policies.  Nonetheless, we plan to address this issue in greater depth when we review our accreditation policy for digital labs in coming months.   

I should also note that the NCFS work product included a number of specific implementation proposals.  These proposals are very thoughtful and we are circulating them to our labs to determine how best to incorporate them into their existing policies.

DOJ also strongly supports increased AFIS interoperability.  We have been working on this issue for some time, but it is important that DOJ leadership make a clear statement in support. 

The FBI’s Criminal Justice Information Services – or CJIS – maintains the world’s largest criminal biometric database, which processes more than 4.5 million ten-print submissions and more than 20,000 latent print searched each month through its “Next Generation Identification” system.  In addition to CJIS, the FBI operates the Biometric Center of Excellence, which has been focused on advancing interoperability and connecting the nation’s major repositories at the Departments of Defense and Homeland Security.  We have shared the commission’s implementation proposals with the FBI for consideration as they seek to identify ways to improve state and local agencies’ access to various federal fingerprint systems.

The department also provides significant funding to purchase and upgrade AFIS systems.  The primary sources of these funds are through the Byrne JAG grant program, as well as the Office of Community Oriented Policing Services.  At our last meeting, we discussed the challenges associated with placing restrictions on DOJ’s grant programs to compel state and local compliance with our federal standards.  We continue to believe that we can use carrots, rather than sticks, to encourage progress in this area.  To support this, we will be redrafting our grant solicitations to make clear that DOJ funds are available to support the purchase of latent fingerprint technology and that, wherever possible, such funds should only be used on interoperable systems. 

In addition, NIJ has funded and participated in research to advance interoperability – with more than $2 million spent over the past decade.  In 2008, NIJ partnered with NIST to form the Latent Print AFIS Interoperability Working Group, which has published a number of documents to advance interoperability.  This includes guidelines and guidance for state and local law enforcement that are purchasing or upgrading to interoperable AFIS systems.  In response to the commission’s recommendation, we will be directing our Office of Justice Programs to broadly distribute the materials developed by this working group, so that state and locals have the tools they need to seek interoperability.

NCFS also recommended that the federal government create a “Medical Examiner and Coroner Electronic Information Network.”  DOJ supports the concept of creating an electronic network that would link medical examiners and coroners across the country.

This project will take time, but we are committed to working with other federal agencies to develop it.  As I mentioned at the last meeting, DOJ will be working with the White House’s Office of Science and Technology Policy to create an interagency group focused on a range of issues involving medicolegal death investigation.  We think it’s important that we work on these issues with our federal partners, including at the Centers for Disease Control and the National Institutes of Health.  We are working with OSTP to get this group off the ground and we hope to have it launched soon, so that it can address this proposal and others.  I know that Victor Weedn is particularly passionate about MDI issues and I look forward to his contributions in this area. 

Additionally, NCFS approved a Views Document that contains four general principles on pre-trial discovery.   We know that the Commission is considering a recommendation on this subject as well and we look forward to reviewing those specific proposals should they be approved by the full commission.

At the last meeting, I explained that DOJ would only be taking action on recommendations, not Views Documents.  But I wanted to provide some general feedback on this document:

We believe that the four principles outlined in the document establish a useful framework for both prosecutors and defense attorneys to consider when determining the scope of pretrial access to information about forensic science evidence.  DOJ agrees that substantial advance access to discoverable materials and timely disclosures will enhance parties’ ability to evaluate forensic science evidence. 

Forensic science evidence is often technical and complex.  The department understands that having more time to evaluate forensic science evidence that the parties plan to use in their case-in-chief will result in parties better understanding the role and impact of such evidence in a case.  The department also supports finding opportunities to increase reciprocal access to discoverable information and ensuring that both parties comply with any reciprocal agreements reached.

The Federal Rules of Criminal Procedures, along with constitutional and statutory disclosure obligations and relevant case law, embody these principles but also recognize that substantial advance access may not always be feasible.  Certain evidence, such as illegal substances, is often strictly regulated through court orders, protective orders and the litigating parties’ agreement.  In addition, there will be situations in which advance access may undercut countervailing concerns, such as witness security.

The department supports finding ways within the current legal structure to ensure disclosure of forensic science evidence and all aspects of pretrial discovery are meaningful.  In addition, we are committed to working with Congress, the Judicial Conference and others to consider any recommendations by the commission regarding pretrial discovery.

Finally, the commission approved a Views Document in support of increasing the supply of forensic pathologists.  DOJ agrees with this general principle.  We believe that forensic pathologists play a critical role in public health and safety and we support NCFS’s goal to raise awareness of the growing need for better training, funding and facilities.  We look forward to working with NCFS to advance these goals and this is one of the issues that we hope Dr. Weedn can help address during his time at the department.

Thank you, once again, for all of your work in developing these thoughtful recommendations.  Your documents are incredibly helpful – not simply in identifying areas where DOJ can improve specific policies, but also to help us establish general principles for examining all forensic issues.

With that, I’ll turn it over to Dr. Rich Cavanagh, who is speaking today on behalf of NIST.  Afterwards, we’ll go directly to Jonathan Wroblewski, who will present OLP’s framework for the quality assurance review.  We’ve set aside additional time at wrap-up for commissioners who have questions about other issues.