[Senate Hearing 111-554] [From the U.S. Government Publishing Office] S. Hrg. 111-554 STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES ======================================================================= HEARING before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED ELEVENTH CONGRESS FIRST SESSION __________ SEPTEMBER 9, 2009 __________ Serial No. J-111-43 __________ Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 54-720 PDF WASHINGTON : 2010 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman HERB KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa CHARLES E. SCHUMER, New York JON KYL, Arizona RICHARD J. DURBIN, Illinois LINDSEY GRAHAM, South Carolina BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma AMY KLOBUCHAR, Minnesota EDWARD E. KAUFMAN, Delaware ARLEN SPECTER, Pennsylvania AL FRANKEN, Minnesota Bruce A. Cohen, Chief Counsel and Staff Director Matt Miner, Republican Chief Counsel C O N T E N T S ---------- STATEMENTS OF COMMITTEE MEMBERS Page Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement.................................. 80 Franken, Hon. Al, A U.S. Senator from the State of Minnesota..... 4 prepared statement........................................... 86 Leahy, Hon. Patrick J., A U.S. Senator from the State of Vermont. 1 prepared statement........................................... 120 Sessions, Hon. Jeff, A U.S. Senator from the State of Alabama.... 3 WITNESSES Buel, Eric, Laboratory Director, Vermont Forensic Laboratory, State of Vermont Department of Public Safety, Waterbury, Vermont........................................................ 6 Giannelli, Paul, Professor, Case Western Reserve University, Cleveland, Ohio................................................ 12 Hurtt, Harold, Chief of Police, Huston Police Department, Houston, Texas................................................. 10 Matson, Barry, Deputy Director, Alabama District Attorneys Association, Chief Prosecutor, Alabama Computer Forensics Laboratories, Montgomery, Alabama.............................. 14 Neufeld, Peter, Co-Director, The Innocence Project, New York, New York........................................................... 8 Redle, Matthew F., County and Prosecuting Attorney, Sheridan County, Sheridan, Wyoming...................................... 17 QUESTIONS AND ANSWERS Responses of Eric Buel to questions submitted by Senator Specter. 34 Responses of Paul Giannell to questions submitted by Senator Specter........................................................ 40 Responses of Harold Hurtt to questions submitted by Senator Specter........................................................ 41 Responses of Barry Matsor to questions submitted by Senator Specter........................................................ 43 Responses of Peter Neufeld to questions submitted by Senator Specter........................................................ 44 Responses of Matthew F. Redle to questions submitted by Senator Specter........................................................ 48 SUBMISSIONS FOR THE RECORD Bohan, Thomas L., Peaks Island, Maine, statement................. 54 Buel, Eric, Laboratory Director, Vermont Forensic Laboratory, State of Vermont Department of Public Safety, Waterbury, Vermont, statement............................................. 60 Castelle, George, Chief Public Defender, Kanowha County, West Virginia, statement............................................ 67 Cole, Simon A, Associate Professor & Chair, Department of Criminology, University of California, Santa Barbara, California, statement.......................................... 74 Donohoe, Colonel W.F., Superintendent, West Virginia State Police, statement.............................................. 77 Findley, Keith A., President, University of Wisconsin, Madison Law School, Madison, Wisconsin, statement...................... 82 Garrett, Brandon L., Associate Professor of Law, University of Virginia School of Law, Charlottesville, Virginia, statement... 88 Giannelli, Paul, Professor, Case Western Reserve University, Cleveland, Ohio, statement..................................... 95 Human Factors Consultants, Ralph Norman Haber, PH.D., and Lyn Haber, Ph.D., Partners Swall Meadows, California, statement.... 101 Hurtt, Harold, Chief of Police, Huston Police Department, Houston, Texas, statement...................................... 113 Matson, Barry, Deputy Director, Alabama District Attorneys Association, Chief Prosecutor, Alabama Computer Forensics Laboratories, Montgomery, Alabama, statement................... 122 National Association of Criminal Defense Lawyers, Washington, DC, statement...................................................... 141 Neufeld, Peter, Co-Director, The Innocence Project, New York, New York, statement................................................ 153 Redle, Matthew F., County and Prosecuting Attorney, Sheridan County, Sheridan, Wyoming, statement........................... 166 Rudin, Norah, Forensic Consultant, and Keith Inman, M. Crime, Senior Ferensic Scientist, Forensic Analytical Sciences, Inc and Assistant Professor, California State University, East Bay, Hayward, California, statement................................. 177 Saks, Michael J., Regents Professor, Sandra Day O'Connor College of Law, Arizona State University, Tempe, Arizona, statement.... 183 Shelton, Hilary, Director, NAACP Washington Bureau & Senior Vice President for Advocacy and Policy, Washington, DC, statement... 195 Sloan, Virginia E., President, Constitution Project, Washington, DC, statement.................................................. 198 ADDITIONAL SUBMISSIONS FOR THE RECORD Submissions for the record not printed due to voluminous nature, previously printed by an agency of the Federal Government, or other criteria determined by the Committee, list: Virginia Law Review, Volume 95, March 2009, Number 1 STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES ---------- WEDNESDAY, SEPTEMBER 9, 2009 U.S. Senate, Committee on the Judiciary, Washington, DC The Committee met, pursuant to notice, at 10:10 a.m., Room 226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Durbin, Whitehouse, Klobuchar, Franken, and Sessions. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Chairman Leahy. Good morning everybody. Please sit down. Please, I'm sorry. I was somewhat plagued getting in. I was just whispering to Senator Sessions that it can take well over an hour to go 10 miles, it seems like. A bit excessive, around here. Dr. Buel and I both live on dirt roads in the little town of Middlesex, and we measure our travel in minutes, even during rush hour. Rush hour means you sometimes have 5 to 10 cars every 10 minutes or so. But on a more serious matter, in March this Committee began our examination of the serious problems in forensic science that go to the very heart of our criminal justice system. Both Senator Sessions and I used forensic science in our past lives as prosecutors. But today we're going to hear from representatives of the professional communities that are going to have to work together to make advances to solve the problems. We know a lot of important work is done through forensics, and those who are with us should be proud of their good work. Scientific advancements can help prove that you have the guilty person. At the same time, it is equally important, it can help exonerate the innocent. We have to ensure that the forensic science rises to the highest scientific standards, has the maximum possible reliability. Unfortunately, since the report and testimony from the National Academy of Sciences earlier this year, we've heard more about the severity of the problem. The current issue of The New Yorker includes an article that presents strong evidence that in 2004, what we would all consider the unthinkable happened: an innocent man may have been executed for a crime he did not commit, based in large part on forensic testimony and evidence. The Committee will soon turn to reauthorizing and strengthening the Innocence Protection Act, and that provides very important tools, passed by bipartisan majorities in the Congress, to prevent that kind of tragedy. The key point for today's hearing is that the prosecution of Cameron Todd Willingham, discussed in The New Yorker article, rested largely on forensic evidence--in that case, burn analysis--that may not have had any scientific basis. Our criminal justice system, particularly the most serious cases, have to be based on facts. Also, the Supreme Court held in the case of Melendez-Diaz v. Massachusetts that forensic examiners must present evidence in court, be subject to cross-examination, rather than simply submitting reports of their findings. Again, that's something I did as a routine matter as a prosecutor 35 years ago. The Supreme Court holding stems from a recognition that forensic findings may not always be as reliable as we would hope or as they might appear. You know, many have the image from the television shows like ``CSI'' that forensic scientists get to review crime scene evidence in sleek, ultra-modern, state-of-the-art laboratories. Well, those of you who are experts know that is not always the case, by any means. In fact, the so-called ``CSI effect'' may be doing harm by suggesting that forensic science is well- funded, and that their results are almost always infallible. As it turns out, that's not the reality examined by the National Academy of Sciences. According to the latest available statistics from the Justice Department in 2005, the backlog of forensic exams was more than 350,000--the backlog--nationwide, up 24 percent from 3 years ago. One out of every five labs does not meet the standards for accreditation set by the American Society of Crime Lab Directors. As the National Academy of Sciences report makes clear, we can't allow such nationwide deficiencies in forensic sciences to continue. I think it's critically important to our criminal justice system that we have accurate, timely forensic science so we can find and punish the guilty, but also exonerate the innocent. What helps is when we take perpetrators of serious crimes off the streets. It doesn't help if we took the wrong person off the street because the criminal is still out there. We can't wait for the backlogs to get worse or the next scandal to take place. I'm looking forward to working with Senator Sessions, Senator Klobuchar, and other interested members of this Committee to find solutions to this. Now, we're going to hear testimony from Dr. Eric Buel, as I mentioned. He is the respected director of the Vermont Forensic Laboratory, someone who has the respect of both the prosecution and defense. Vermont's lab has done consistently excellent work and it's helped to solve many important cases. Dr. Buel nonetheless, recognizes the need for more standards, more research, more funding. I'm glad to welcome back to the Committee Peter Neufeld. Mr. Neufeld has worked with us. He's the co-director of The Innocence Project, and he's worked with us for years in this Committee. His work on individual cases and bringing important changes to the law has been very, very helpful. I look forward to the insights of fellow prosecutors and law enforcement officers who are on the front line every day. The report issued by the National Academy of Sciences is detailed and far-reaching and can provide a foundation for broad consensus for change. It calls for mandating national standards for enforcing best practices and points to a need for standards for the certification of individual examiners, accreditation of their laboratories, and the assets to invest in the research underlying modern forensic sciences. Now, there are areas of significant controversy, including the report's recommendation of another major new government agency and for the total separation of forensics and law enforcement. There will be disagreement on that, but I hope we can find the areas that we all agree on. So, I hope we can work together toward strengthening our forensic system, rooted in science. With that, I'll put the rest of my statement in the record. [The prepared statement of Chairman Leahy appears as a submission for the record.] Chairman Leahy. Senator Sessions. STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE OF ALABAMA Senator Sessions. Thank you, Mr. Chairman. Forensic sciences in America does present a challenge, in my view. It's something that I have felt strongly about for many, many years. If you look at the criminal justice system as a comprehensive whole and you ask yourself, are there bottlenecks in this system that are causing difficulties, I think you would say that the forensic sciences are being shortchanged financially and we can do better. I have believed that for some time. You consider huge sheriffs' departments, huge police departments, probation departments, judicial centers, prison systems, the amount of money going to that decisive entity, the forensic scientist who can make the difference in a case being ready to go to trial and being tried fairly and objectively and can be really adverse to the whole criminal justice system. So, I worry about that. As a prosecutor and one who felt that trials were too much delayed, I conducted research of it as Attorney General of Alabama and concluded one of the biggest things that was delaying justice in America is getting your forensic sciences reports completed in an effectively and timely way. Prosecutors have a slam-dunk cocaine case, the person is tape recorded, but months go by before somebody comes back and says the powder is cocaine. Now, maybe there are more complicated drugs, pills and that kind of thing that need to be analyzed before the case can go forward. Some prosecutors will use testimony to go forward with an indictment. Some will not return an indictment until they've received that information. Some cases cannot go forward based on fingerprints, based on lack of fingerprints or lack of ballistics or DNA evidence that needs to be promptly produced. So if you look at the entire criminal justice system, I think you could say that more innocent people could have a cloud removed from them and not be charged. More guilty people could be charged and proceed forward to justice and get their just desserts with a more effective forensic system in America. The Commission report has some good recommendations. I don't accept the idea that they seem to suggest that fingerprints is not a proven technology. I don't accept some of the other forensics that are not scientific well-based. For example, the Commission strongly praises the scientific analysis that has gone behind DNA and suggests that should be done more comprehensively in other areas, and perhaps it should. Perhaps it should, Mr. Chairman. Maybe we can tighten that up and have some sort of better scientific basis for fingerprints and other analysis. But I don't think we should suggest that those proven scientific principles that we've been using for decades are somehow uncertain and leaving prosecutors having to fend off challenges on the most basic issues in a trial. So, tens of thousands of people, I suggest, are not being promptly tried. While they're out on bail or un-indicted, they're committing crimes this very moment. A lot of that is because we've not invested enough in our forensic sciences so that we can get accurate and prompt reports. I believe it's a very important issue, Mr. Chairman. Thank you for having this hearing. I believe the Commission kicked off a national discussion, and maybe we can make some progress. I certainly hope so. Chairman Leahy. Well, thank you, Senator Sessions. You and I have worked on these issues for years, and I think this is an important thing. Senator Feingold has a statement to place in the record. [The prepared statement of Senator Feingold appears as a submission for the record.] Chairman Leahy. Did you want to---- Senator Franken. Yes. I have a statement, Mr. Chairman. Chairman Leahy. Go ahead. STATEMENT OF HON. AL FRANKEN, A U.S. SENATOR FROM THE STATE OF MINNESOTA Senator Franken. Okay. Thank you. Thank you, Mr. Chairman, for holding this incredibly important hearing. We incarcerate more people than any other industrialized nation--in fact, we incarcerate more people than any nation, period. We have 2.3 million prisoners behind bars. Compare that to China, which has four times our population but only--only 1.6 million prisoners. We also have the world's highest incarceration rate, more than five times higher than the world's median rate; even though we have 5 percent of the world's population, we have 25 percent of its inmates. These are worrying figures for any country, let alone the world's leading democracy. But they are especially troubling when we consider that the forensic techniques used to prosecute and convict many of these individuals have come under serious question. Earlier this year, pursuant to a congressional mandate, the National Academy of Sciences released a report evaluating the scientific integrity of the forensic techniques used daily in thousands of crime labs around the country, including DNA analysis, fingerprinting, firearms identification, and hair/fiber analysis. The report which was published after 2 years of research and review had a damning conclusion, which I will restate here. It concluded that, ``With the exception of nuclear DNA analysis, no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source. The fact is that many forensic tests have never been exposed to stringent scientific scrutiny.'' For example, the National Academy's report revealed that there is currently no objective uniform method of fingerprint analysis or standard for fingerprint identification. In fact, in the United States the standard for identification, how many points match between two prints, ``has been deliberatively kept subjective'' to allow for maximum flexibility by the examiner. This means that one examiner can require just 6 points for comparison before declaring a match, while another can require 14 points. Bad forensic techniques result in false convictions. That's obvious. In a review of 242 DNA exonerations, The Innocence Project found that a large number of the cases involved invalidated or improper forensic science. The number of false convictions is surely higher, however, since 90 percent of criminal cases actually do not involve biological evidence that can irrefutably exonerate someone through DNA testing. What is less obvious is that bad forensics keeps the real criminals on the streets. Of the 242 DNA post-conviction exonerations nationwide, the real perpetrators were identified in 105 cases. In those 105 cases, while innocent people were in jail, the real perpetrators committed, and were convicted of, 90 serious violent offenses, including 56 rapes and 19 murders. False convictions are a threat and tragedy, both for the innocent and for every law-abiding citizen in the Nation. In 2006, Supreme Court Justice Antonin Scalia declared that ``there has not been a single case, not one, in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it. The innocent's name would be shouted from the rooftops.'' Sadly, that day has come after the execution of Cameron Todd Willingham. It's being shouted from the rooftops today, this week, by The New Yorker. The Fifth and Fourteenth Amendments guarantee that all Americans will not be deprived of life, liberty or property without due process of law. This due process right applies to States and it applies to the Federal Government. If it means anything, it means that the tools we use to determine innocence or guilt must be based on sound, rigorous science. Until we can be confident of that, I think we should ask ourselves whether it would be appropriate to impose a nationwide moratorium on the death penalty. Can we, as a law-abiding Nation, execute anyone without being 100 percent certain that they are guilty? Can we risk another Cameron Todd Willingham? I look forward to hearing from all the witnesses today. Thank you, Mr. Chairman. Chairman Leahy. Thank you, Senator Franken. The first witness is Dr. Eric Buel, current director of the Vermont Forensics Laboratory, a position he's held for the last 11 years. He has 30 years of experience analyzing forensic evidence for the State of Vermont and he is widely recognized for his expertise on forensic DNA analysis. In 1990, Dr. Buel established the Vermont DNA Analysis Program. He is a past board member of the American Society of Crime Laboratory Directors. He serves on the editorial review board of The Journal of Forensic Sciences and has published articles on forensic drug and DNA analysis. He received his bachelor's degree from the University of Delaware and his Ph.D. in biochemistry from the University of Missouri at Kansas City. As I mentioned earlier, he lives in one of the prettiest towns of Vermont. Dr. Buel. Is your microphone on? STATEMENT OF DR. ERIC BUEL, LABORATORY DIRECTOR, VERMONT FORENSIC LABORATORY, STATE OF VERMONT DEPARTMENT OF PUBLIC SAFETY, WATERBURY, VT Dr. Buel. I haven't been here for a while, sir. Chairman Leahy. We have changed a bit. Dr. Buel. Yes. Technology. Good morning, Mr. Chairman, members of the Senate Judiciary. Thank you for the invitation to speak with you about how best to provide forensic science to the citizens of our great country. I have been in the field of forensic science for almost 30 years, the last 11 as a laboratory director. I am privileged and honored to speak with you about forensic science and how best to implement the recommendations in the National Academy of Sciences report. With your permission, Mr. Chairman, I'd like to read a statement into the record. Chairman Leahy. Please. Dr. Buel. Okay. Several years ago, I served as a board member for the American Society of Crime Lab Directors. A theme that I brought forward for consideration was a long-term goal for us and for society. That goal was for every crime victim to expect the highest level of forensic science services regardless of where in the United States he/she was victimized. Her case would not lie for months in a freezer awaiting examination, resources would be available to perform DNA profiling, and the DNA database would be current. Fingerprints recovered would not fade with time awaiting analysis, and the AFIS database would be fully supported and recently updated. The laboratory would have the resources to provide the type of services our citizens should have in their time of need. The resources necessary to make that desired reality have not been provided to the State and local crime labs. The Federal funds have flowed toward the reduction of backlogs in DNA, and although this assistance is appreciated and has done much good, crimes continue to go unsolved, citizens continue to be victimized as the backlogs in other forensic disciplines grow and leave cases unresolved. Mr. Chairman, we need to address the capacity in our crime lab system. We need to provide resolution to these cases. We need secure and stable funding. We need comprehensive forensic reform. As you know, the National Academy of Sciences clearly recognized this and it provided numerous recommendations to reform and modernize our system. Let me briefly highlight just a couple of points detailed in the NAS report. Quality assurance is a critical component to ensure quality work. The forensic community has made great strides in this regard through the accreditation process. I agree with the findings of the NAS report that all laboratories performing forensic science must be accredited with certified staff. Accreditation and certification of both laboratories and individuals should be prioritized and funded to allow these activities to occur as soon as possible. There has been much discussion about forensic services that may require further research to address accuracy and reliability. Let me briefly describe a process that may assist us to find a path forward in that regard. During the early days of DNA analysis, there were many questions concerning how to apply this new science appropriately to forensic case work. Studies by the National Research Council culminated in two reports that offered recommendations and suggestions for DNA testing by the forensic community based on adherence to high-quality standards and uniform procedures. Through the work of the council and working groups, a pathway was created for the forensic DNA community to follow. The Federal Government recognized the need to fund this emerging science, and did so. This provided laboratories with the resources to properly train their scientists and purchase state-of-the-art instrumentation. These funds permitted laboratories to initiate programs, submit expectations, and has resulted in the implementation of what has become a very successful forensic program. This model could be replicated for the other disciplines with the proper resources from the Federal Government. Through a full vetting of the data, methods and procedures currently used by a discipline, appropriate procedures could be modified or additional standards applied if the research indicates the need for change. If further research is needed, Congress must fund this research to resolve unanswered questions. The committee members reviewing the science must include experts from both academia and the forensic community to allow a mutual exchange of ideas and understanding of the work that is performed. Through this collaborative effort, the success recognized by the DNA program could be realized by each forensic discipline. The National Academy of Sciences has identified the needs of the forensic community and we have an opportunity to make use of the report to make the necessary improvements in our science. I would recommend that Congress take appropriate steps to meet these challenges discussed in the report and to promote and provide the best possible science for our people. Thank you very much. Chairman Leahy. Thank you very much, Doctor. Thank you for being here, as always. Peter Neufeld co-founded and co-directs The Innocence Project, an independent, nonprofit organization affiliated with the Benjamin N. Cardozo School of Law. He is also a partner in the civil rights law firm, Cochran, Neufeld and Scheck. For the last 12 years, he's served on the New York State Commission on Forensic Science, which has responsibility for regulating all State and local crime laboratories in New York. He has co- authored several influential books on the use of forensic evidence in criminal cases and post-conviction review. Prior to his work with The Innocence Project, Mr. Neufeld taught trial advocacy at Fordham University Law School and was a staff attorney for the Legal Aid Society of New York. He received his law degree from New York University School of Law, his bachelor's from University of Wisconsin. He's no stranger to this Committee, and it's nice to have you back here with us. Go ahead, please. STATEMENT OF PETER NEUFELD, CO-DIRECTOR, THE INNOCENCE PROJECT NEW YORK, NEW YORK Mr. Neufeld. Thank you, Chairman Leahy, Ranking Member Sessions, and of course, Senator Franken. Thank you all for being here. I am the co-founder of The Innocence Project and it is a special occasion for me to be back here. I have an incredible respect for this Committee. After all, it was this Committee that played such a pivotal role in the passage of the Innocence Protection Act in 2004, which gave people who have been imprisoned access to DNA testing to prove their innocence. It was also this Committee that played a critical role in passage of the Coverdell amendment in 2004 which required State and local crime laboratories that receive Federal funding to conduct independent audits whenever there were serious questions about negligence or misconduct that would call into question the reliability of their forensic results. In that regard, I'd like to congratulate the speaker to the left of me here, Harold Hurtt, who is the police chief of Houston who, frankly, embarked on probably the most comprehensive forensic science audit in the country of a laboratory, and did it before the Coverdell amendment went into effect, just simply did it proactively on his own, and it should be an extraordinary role model for other crime laboratories in the country. So, thank you, Chief Hurtt. But what I'm here to talk about today is the real-life cost of what happens when forensic science is either misapplied or invalidated forensic science is relied upon to secure a conviction. On May 23, 1991 in upstate New York, a young social services worker was found dead outside of the farmhouse where she lived. She had been strangled, she had been stabbed. Her assailant had bitten her in half a dozen places, right through her nightgown into her skin. Roy Brown, who is sitting here behind me today, became a suspect in that case, primarily because he had a beef with the social service agency where this victim had worked. The centerpiece of the police case and the prosecution's case to convict Roy was testimony from a forensic dentist. The forensic dentist used what was then the prevailing methods of comparing bite marks found on a body with the dentures of a suspect. He examined them and he decided that he had a match with Roy's bite. He so testified in court and Roy was convicted. Fortunately for Roy, it happened just before, a year before the New York State legislature brought back the death penalty, and so Roy received a life sentence. While in prison, he got very ill. He contracted hepatitis and almost died. But Roy never gave up fighting. He actually, through the FOIA request, got some police reports which identified a person who he believed had actually committed the crime. Roy wrote to him and said, ``One day they'll do DNA testing on those saliva stains left by the biter and it will demonstrate that you're the real perpetrator: repent now! '' The letter was sent, and 3 days later that man threw himself in front of an Amtrak train in upstate New York and killed himself. We got involved in the case, and of course we couldn't do DNA testing on the deceased because of the way he died, but we were able to eventually get DNA testing on the saliva stains all over the woman's back and compare them with DNA from the daughter of this man who threw himself in front of the train. Lo and behold, it was a perfect paternity. Again, the remnants of this man were exhumed, DNA testing was done, and everybody agreed, the prosecutor and the judge, that Roy Brown was completely innocent, having spent 15 years of a life sentence in prison for a crime he did not commit. You've already heard from both Chairman Leahy and also Mr. Franken the story of Todd Cameron Willingham, who very well may have been executed, albeit completely innocent, simply because a State arson investigator used what were then prevailing, generally accepted means to determine when a fire was deliberately set as opposed to an accident. It just so happened that those means that he relied upon had never been scientifically validated and turned out to be unscientific, at least so say the five national experts who have reviewed the data in that case since. These are only two of the examples of the 242 people that we worked with at The Innocence Project who have been subsequently exonerated through DNA. Although Mr. Willingham was not exonerated through DNA, I think it's pretty clear he was innocent based on the other evidence. What folks have to realize about these cases, as Senator Franken pointed out, is it's not just about exonerating innocent people because in each of these cases the real perpetrator was out there committing other heinous crimes. In fact, in the 105 cases where we at The Innocence Project worked with police and prosecutors to identify the real perpetrator, it turns out that those real perpetrators committed a minimum of dozens of other vicious rapes and murders, rapes and murders that could be avoided if something had been done about that early on with better science. The real question here as we go forward is, are we going to try and have an independent scientific entity that can rigorously scrutinize the forensic disciplines and make sure that we have the best, robust methods possible, or are we going to allow the same old system to be perpetuated and allow innocent people to be wrongly convicted and the guilty to go free? I am confident that this Committee will not let that happen and will do the right thing. Chairman Leahy. Thank you very much. Again, thank you for your help in the past, especially the original Innocence Protection Act. Chief Harold Hurtt is the chief of police in Houston, Texas, a position he's held since 2004, am I correct, Chief? Chief Hurtt. Yes, sir. Chairman Leahy. Chief Hurtt began his career in 1968 with the Phoenix, Arizona police department. He rose to the post of executive assistant chief of police. After serving as chief of police for Oxnard, California, he returned to Phoenix in 1998 and served as chief of police there. Chief Hurtt has been selected twice by his peers as president of the Major Cities Chiefs Association. Chief Hurtt received his undergraduate degree in sociology from Arizona State University, and later received his master's in organizational management from the University of Phoenix. He and his associate are well known to this Committee, of course. It was about 38 years ago when the District Attorney of Harris County, a man named Carol Vance, was also the president of the National District Attorneys Association. I know that only because I was one of the officers of the National DAs at the time and went to Harris County and went to Houston a couple of times for meetings and one time for an extradition. Houston has changed a great deal since then. Chief Hurtt. Yes, it has. Chairman Leahy. Chief, it's good to have you here. Please go ahead, sir. STATEMENT OF HAROLD HURTT, CHIEF OF POLICE, HOUSTON POLICE DEPARTMENT, HOUSTON, TEXAS Chief Hurtt. Mr. Chair and members of the Committee, good morning, and thank you for inviting me to testify today. It is, indeed, an honor. Today I will give you an historical account of the Houston Police Department's crime lab, talk about reforms implemented, and potential solutions for addressing challenges in forensics. In November of 2002, the Houston Police Department requested an independent audit of the DNA Section of the Houston Police Department by the Texas Department of Public Safety. Deficiencies were found that resulted in the suspension of DNA testing. An Internal Affairs investigation was conducted and discovered criminal and administrative violations. Two grand juries reviewed the evidence and no indictments were returned. Results of that investigation led to reprimands, suspensions, and separation of management and employees of the crime lab. In 2003, a review of cases in which DNA testing was performed began, in consultation with the Harris County District Attorney's Office. Three outside DNA laboratories were employed to conduct DNA re-testing. The police department hired the National Forensic Science Technology Center to assist in the evaluation of the crime lab's operation and to assess its employees. In September of 2004, I sought an independent review of the crime lab and property room. A stakeholders' committee was put together to oversee the selection and progress of an independent investigator. Mr. Michael Brumwich, a former Inspector General with the U.S. Justice Department, was selected. The stakeholder committee included various community leaders, civil rights advocates, prosecutors and defense attorneys, forensic scientists, and members of the academic community. The primary elements addressed by this study or investigation consisted of reviewing the past and present operation of the crime lab and property room. Serology incarceration cases from 1980 to 1992 were reviewed. The final report was issued in the summer of 2007. The investigation revealed the following: for the previous 15 years prior to the 2002 closing of the HPD DNA crime lab, or the DNA lab, there was a lack of support and resources for the crime lab. Ineffective management was in place. There was a lack of adequate quality control and quality assurance. There have been many reforms implemented in the Houston Police Department crime lab. We have implemented new crime lab testing procedures, practices, and policies. In 2005, the Texas State legislature mandated accreditation for all crime labs in the State. During that year, the crime lab received national accreditation from the American Society of Crime Lab Directors' Laboratory Accreditation Board. It was accredited in the following areas: controlled substances, firearms, toxicology, question documents, and biology. In 2006, the crime lab received accreditation in DNA and trace analysis. Our hiring criteria has been upgraded, with emphasis on experience, certifications, and educational credentials. We have also imposed rigorous training requirements, including yearly ethics training. We have instituted a comprehensive quality assurance program and we have continued our cooperation with The Innocence Project. We have started case assessment strategies based on the United Kingdom model. A new property room has been built and robots are being evaluated for DNA testing. Now we'd like to make some recommendations in reference to addressing the challenges in forensic science. First of all, proper funding for crime labs must occur. We need to take advantage of the new technology, especially robotics. The hiring of competent staff and training will be critical. Case assessment strategy that was implemented by and used in the United Kingdom must be used here. Also critically important is the educating of judges, prosecutors, and defense attorneys of the basic principles of scientific evidence. Thank you. Chairman Leahy. Chief Hurtt, thank you very, very much. We appreciate the help you and your colleagues have given to this Committee over the years. I appreciate it very much. Chief Hurtt. Thank you, sir. Chairman Leahy. Paul Giannelli is the Albert J. Weatherhead, III and Richard W. Weatherhead Professor of Law at Case Western Reserve University. He began his career as a military prosecutor and defense counsel, where he became an academic expert in the field of evidence and criminal procedure. Mr. Giannelli has authored numerous articles and books on the use of scientific evidence. He received his J.D. and Master of Laws from the University of Virginia, and he has a Master of Science degree in forensic science from George Washington University. Mr. Giannelli, welcome. Please go ahead, sir. STATEMENT OF PAUL GIANNELLI, PROFESSOR, CASE WESTERN RESERVE UNIVERSITY, CLEVELAND, OHIO Mr. Giannelli. Thank you, Mr. Chairman, Senator Sessions, Senator Franken. While serving in the Army during the Vietnam War, I was assigned to the forensic medicine program at the Armed Forces Institute of Pathology at Walter Reed. At the same time, I earned a Master's degree at George Washington University and I then taught a course on scientific evidence at the Army JAG school in Charlottesville for 2 years. I've been at Case Western Reserve University for going on 35 years, and scientific evidence has been my area of research interest for that time. The publication of the National Academy of Sciences report is one of the most important developments in forensic science since the creation of the first crime laboratory in this country in the 1920s. The report is both comprehensive and insightful. Its findings are well-documented, and the need for a new approach, one rooted in science, as outlined in the report, is critical. In sum, I believe this is an exceptional report. Its recommendations, if adopted, would benefit law enforcement and prosecutors in the long run. It would allow forensic science to develop a strong scientific basis and limit evidentiary challenges regarding the reliability of scientific evidence. First, I want to stress the importance of scientific evidence in the criminal process. It is often superior to other forms of proof. Forty years ago, the Supreme Court noted that ``fingerprinting is an inherently more reliable and effective crime-solving tool than eyewitness identifications or confessions and is not subject to such abuses as an improper line-up or the `third degree.' '' More recently, the DNA exoneration cases have highlighted the problems with eyewitness identifications, jail informant testify, and false confessions. According to The Innocence Project, there are now over 240 exonerations. However, the exoneration cases have also exposed problems with scientific evidence, and I want to focus my remarks on what I believe is the crucial issue: the lack of empirical research in some forensic identification disciplines and how to address that. The lack of empirical research is noted in the report over and over again. ``Among existing forensic methods, only nuclear DNA has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, to demonstrate a connection between an evidentiary sample and a specific individual source.'' Another passage states, ``Some forensic science disciplines are supported by little rigorous, systematic research to validate the discipline's basic premises and techniques. There is no evident reason why such research cannot be conducted.'' Common identification techniques, those that rely on an examiner's subjective judgment, lack sufficient empirical support. For example, the report wrote, first, ``sufficient studies on firearms identification have not been done to understand reliability and repeatability of the methods''; two, ``the scientific basis for handwriting comparisons needs to be strengthened''; three, ``research is needed to properly underpin the process of fingerprint identification''; four, ``testimony linking microscopic hair analysis with particular defendants is highly unreliable''; five, ``there is no science on reproducibility of the different methods of bite-mark analysis.'' Chapter five of the report documents these conclusions in detail and my research is in accord. Similar concerns can be found in court decisions for more than a decade. After the Supreme Court's decision in Daubert v. Merrill Dow Pharmaceuticals, some lower courts began to question how expert testimony was being presented at trial. In the Mitchell case, Judge Becker wrote, ``The testimony at the Daubert hearing indicated that some latent fingerprint examiners insist that there is no error rate associated with their activities. This would be out of place under Rule 702,'' which is the governing standard on expert testimony. In United States v. Green, the judge wrote, ``the more courts admit this type of tool mark evidence without requiring documentation, proficiency testing, or evidence of reliability, the more sloppy practices will endure; we should require more.'' In United States v. Crisp, the judge wrote that ``the government has had ten years to comply with Daubert. It should not be given a pass in this case.'' The case dealt with fingerprint and handwriting evidence, and this was six years ago. Firearms identification. Examiners testified in another case to the effect that they were 100 percent sure of their match. The judge wrote, ``Because an examiner's bottom-line opinion as to identification is largely a subjective one, there is no reliable statistical or scientific methodology'' to support that conclusion. In United States v. Glynn, the court wrote that the ``Government did not seriously contest the Court's conclusion that ballistics lacked the rigor of science, and that whatever else it might be, its methodology was too subjective to permit opinions to be stated to a `reasonable degree of ballistic certainty.' '' In Williamson v. Reynolds the court wrote: ``this court has been unsuccessful in its attempts to locate any indication that hair comparison testimony meets any requirements of Daubert.'' This decision was handed down in a habeas case five days before the scheduled execution date. A New York case in 1995 concluded that, ``forensic document examination, despite the existence of a certification program, professional journals, and other trappings of science, cannot, after Daubert, be regarded as scientific knowledge.'' Independent scientific research is critical and the most thorough and well-reasoned reports in the field have come from independent scientific investigation: the National Academy's voice print report in 1979, its DNA reports in 1992 and 1996, its polygraph report in 2002, the bullet lead report in 2004. The creation of a National Institute of Forensic Sciences, recommendation one in the report, is essential. An independent agency, steeped in the traditions of science, is required. In addition to independence and strong scientific credentials, a new entity should be dedicated solely to forensic science. It should not be encumbered with multiple missions. Once in place, it could focus quickly on the agenda outlined in the report. Moreover, a national institute would have the prestige to attract top scientists to the field and to influence universities to conduct peer-reviewed research and to establish rigorous educational programs. In contrast, an entity that is part of an agency in another department will not attract the same level of talent. Finally, there are many talented, conscientious examiners working in crime laboratories throughout this country. These examiners need to be supported, they need funds for better equipment and advanced schooling, and continuing education. Thank you. Chairman Leahy. Thank you very much, Mr. Giannelli. Mr. Matson is from Alabama, and I'd ask if Senator Sessions would like to introduce him. And we thank you for being here, Mr. Matson. Senator Sessions. Thank you, Mr. Chairman. It's a delight to introduce Barry Matson to the Committee. He is an experienced prosecutor who has personally tried many serious major felonies, including capital cases. He's conducted grand jury investigations and personally worked with a lot of complex cases. He now is the chief prosecutor for the Alabama Computer Forensic Laboratories and is deputy director of the Alabama District Attorneys Association. He is founder of the National Computer Forensic Institute in Hoover, Alabama. I think he'll provide some valuable information to us from a practical perspective, Mr. Chairman. Thank you for inviting him. Chairman Leahy. Thank you, Senator Sessions. Please go ahead. Senator Sessions. I would note, his degree is from Jacksonville State University in criminal justice, undergraduate, which has got an excellent criminal justice program, and his law degree at Birmingham School of Law. STATEMENT OF BARRY MATSON, DEPUTY DIRECTOR, ALABAMA DISTRICT ATTORNEYS ASSOCIATION; CHIEF PROSECUTOR, ALABAMA COMPUTER FORENSICS LABORATORIES MONTGOMERY, ALABAMA Mr. Matson. Thank you, Your Honor. Mr. Chairman and members of the Committee, I want to thank you for the honor of appearing before you to discuss the National Academy of Sciences' report. It is especially significant that we appear before you on a subject so vital to the future of law enforcement, prosecution, and the administration of justice everywhere. I'm a career prosecutor. Prior to my current position, I was Chief Deputy District Attorney in Talledega County, Alabama for 16 years. In that county, in Talledega County, it's not unlike most jurisdictions across this country. We were faced, and are faced every day, with challenges facing the criminal justice system while our dockets were exploding. We faced those challenges with a strong work ethic, a deep passion to protect the public, and to do justice. Mr. Chairman and members of the Committee, please know, a prosecutor is held to a higher standard than that imposed on other attorneys because of the unique function we perform in representing the interests and exercising the sovereign power of the State. In my testimony today I will endeavor to give a voice to the everyday prosecutor, struggling with too few resources, expanding caseloads, as well as agenda-driven criminal defense lobbies. We applaud Congress for directing the National Academy of Sciences to undertake the study that led to this report. It is not in spite of the fact that we are prosecutors that we welcome a serious critique of the forensic science process, it is because we are prosecutors. But like many endeavors, those with agendas have made an impact, not only on this report, but now in the courtrooms across this country. The absence of prosecutors on the National Academy of Sciences Committee on Forensic Sciences has not been lost on those of us serving every day in the trenches of America's courtrooms. The failure of the Committee to seek the consultation of State or local prosecutors in its eight separate meetings is glaring and overlooks one of the criminal justice system's most vital components. Mr. Chairman and members, you well know the role of the prosecutor in the American system. A prosecutor is to judge between the people and the government. He is to be the safeguard of one and the advocate of the rights of the other. Make no mistake about it: I and my colleagues--I'm a tough prosecutor and I vigorously seek justice for the victims in the community. However, that toughness is tempered with a simple desire to do what is right. One thing that has been grossly overlooked in all the process that has gone on in this report is that prosecutors and forensic science professionals do more every day to free the innocent and safeguard the liberties of our citizens than any defense project or academician will ever do in their career. Those entities have no burden or have taken no oath to seek the truth. Conversely, they are required to suppress the truth when it serves the best interests of their needs and of their client. Have regrettable instances occurred in the forensic setting? Yes. Is it to the level that some entities and special projects would have us to believe? Absolutely not. As long as human beings are involved, we will endeavor to do the very best we can, but no system we ever have will ever be perfect. However, the NAS report before you seems to erroneously focus on perceived biases in the forensic law enforcement communities. Forensic technicians and scientists are said to be rife with cognitive bias. This report says they demonstrate bias by seeking to play supervisors or by basing results on suggested data. Some passages suggest that forensic scientists simply might see things that don't exist or skew their outcome by intentionally presenting their findings in an unfair way to produce a particular result. If we follow that logic, we must ask this question: when a fingerprint examiner in some jurisdiction tells us that a suspect is excluded as a source of the latent print, meaning that person didn't do it, should we now charge him anyway because the examiner's cognitive bias may affect the examination? Obviously the answer is a resounding no. That's a silly question. But it makes a point that this report overlooks. In other words, this report suggests that the only time forensic sciences is wrong or inaccurate is when the conclusion by the scientist or technician points to the guilt of the accused. If the evidence does not, then everything is okay. As we speak in courtrooms all across this country and in jurisdictions of yours and your States, a prosecutor is trying to do the right thing. As a seeker of truth, that prosecutor must be able to do everything possible and take every tool into the courtroom that they can to seek justice. If she does not have the forensic evidence juries have come to demand from a satiation of crime scene television and the defense bar demands, she is bludgeoned with pleas of, where are the fingerprints, or where is the bullet? But if that prosecutor has such evidence and it is relevant and admissible, she must now defend that evidence from the defense lawyer's attacks using this NAS report as Defendant's Exhibit Number 1. It's happening every day in our courtrooms. Members of this Committee, it is vital that you know the negative impact this report has already had on prosecutors trying to find the truth in every jurisdiction across this country. Former convictions and current prosecutions are being challenged by using the words of the NAS report to attack forensic science evidence. This is true, even though the report made efforts to say that no judgment is made about past convictions and no view is expressed as to whether courts should reassess the cases that have already been tried. We welcome the recommendations of this Committee, in conclusion, and of the NAS report. We believe that some of these recommendations will serve to strengthen forensic sciences for years to come. However, we absolutely recognize and vehemently disagree with portions of the agenda-driven attack upon well-founded investigative techniques. These same techniques or sciences are used every day to find the truth in every type of case. As an investigative tool, every discipline of forensic sciences has not simply led to convictions, but has delivered the truth. I know this truth, and I sleep very well at night knowing that the dedicated prosecutors, forensic technicians and scientists working in independent law enforcement agencies or labs use their craft to see that justice is done, innocents are exonerated, and the guilty are held responsible for their actions. I thank you for your time. Chairman Leahy. Thank you very much. Our next witness is Matthew Redle. Did I pronounce that correctly? Mr. Redle. Redle, Mr. Chairman. Chairman Leahy. Redle. Redle. Sorry. Mr. Redle. That is the note that I had from my staff, so it's my fault, not theirs. Matthew Redle is a County and Prosecuting Attorney in Sheridan, Wyoming. Mr. Redle has given lectures and conducted training on forensic issues at the National Advocacy Center and for organizations including the National District Attorneys Association, the Wyoming Division of Criminal Investigation, and the Wyoming State Crime Laboratory. He's been a panelist at the National Institute of Justice on post-conviction DNA issues. He's a member of the Council of the Criminal Justice Section of the American Bar Association. Mr. Redle received his undergraduate and law degrees from Creighton University. Mr. Redle, please go ahead, sir. STATEMENT OF MATTHEW F. REDLE, COUNTY AND PROSECUTING ATTORNEY, SHERIDAN COUNTY SHERIDAN COUNTY, WYOMING Mr. Redle. Thank you, Mr. Chairman, Senator Sessions, members of the Committee. My name is Matt Redle. I'm the duly elected county and prosecuting attorney of Sheridan, Wyoming. It is an honor, a distinct honor, to appear before you today. As a prosecutor, I'm charged to act as a minister of justice, to seek justice in the discharge of my duties. When a crime is committed a victim cries out for justice, the evidence necessary to satisfy that plea may rely upon the work of earnest members of the forensic science community. It is their careful analysis of physical evidence that may provide a critical link in the chain of proof that is necessary to lead to the perpetrator of their crime being brought to justice. Police, prosecutors, and dedicated men and women in our Nation's crime laboratories know that the arrest of the wrong person, the arrest of an innocent person, may result in yet another innocent person being victimized at the hands of the true perpetrator. It does not satisfy our victim's plea to arrest the wrong person, neither does it fulfill my duty to seek justice, nor protect the citizens of my community. Prosecutors know that justice is best served by exonerations of the innocent before trial. The reliability of forensic science is critical to that effort. The release of the National Resource Council report titled, ``Strengthening Forensic Science in the United States'' was one step in a dialog. It a dialog on how best to provide reliable scientific evidence to the criminal justice system. This hearing and your work are a critical next step in that process. My prepared remarks concern one recommendation of the Research Council that misses the mark in our effort to secure reliable scientific evidence. Recommendation No. 4 suggests the removal of public crime laboratories from law enforcement or prosecution agencies. I believe, Mr. Chairman, that the question of where a laboratory is located is not nearly as important to the reliability of its evidence compared to the question of how it operates. Two things, in my estimation, are far more important in promoting scientific reliability in a crime laboratory. The first, is the culture developed within that laboratory. Hopefully that culture is one that recognizes the contribution that the integrity of the process makes to the reliability of the results and therein to the success of the investigation. It is that culture that fosters autonomy within a law enforcement agency, encouraging objective clinical judgment. Such a culture insulates scientists from inappropriate influences and promotes the scientific value of transparency in the testing process. The second is more concrete. It is the implementation of effective programs of quality assurance and quality control. Quality control measures, such as laboratory accreditation, certification of scientists, adherence to validated testing protocols, proper and complete documentation, internal and external performance audits and inspections, regular proficiency testing, and appropriate corrective procedures in the event error is discovered promotes values of transparency and reliability and are far more important than the name of the agency outside the building. With all due respect to Mr. Brown, I would suggest, Mr. Chairman, that Mr. Brown's case represents not so much a failure of science. As much as it pains me to say so, my understanding of the events involved in that case, it represents a colossal ethical failure on the part of the prosecution in that case. The prosecutor, as I understand it, had retained a forensic dentist well-known in New York State to examine the evidence in that case. That doctor, Dr. Levine, returned a finding that was exculpatory of Mr. Brown. The prosecutor, not abiding by his ethical responsibilities, not following the constitutional rule of Brady v. Maryland, withheld that information from the defense and instead shopped for a new expert, a local dentist. As a result of that failure, that ethical failure, this tragic injustice was perpetrated on Mr. Brown, and I apologize on behalf of prosecutors everywhere. Mr. Chairman, as you and the members of the Committee work through the issues raised by the report, I look forward to providing whatever assistance I might to help you in your efforts. Thank you. Chairman Leahy. Thank you, Mr. Redle. Both you and Mr. Matson and others have stressed the need, as a prosecutor, you're in a pivotal part of the criminal justice system, not only the ability to bring charges, but you're the only one who has the real ability to withhold bringing charges if you don't feel the evidence is sufficient. You do stand at that juncture between society and the criminal justice system. I've always felt that. In many ways, the prosecutor carries the most important part, having to make those decisions. I won't have time to ask all my questions, and I'll submit some for the record after I finish, because of an appropriations matter. I'm going to turn over the gavel to Senator Klobuchar, who is a former prosecutor herself. Dr. Buel, you emphasize the need for comprehensive forensic reform, substantive reform, support for research, and in not just a few high-profile disciplines, like DNA. Now, Congress, again, in a bipartisan way, has pushed for important advances in DNA technology, standardization of DNA testing, funding to reduce the backlogs in DNA testing. The more traditional forensic sciences, fingerprints, ballistics, tool-mark examinations, for example, have not received comparable support. When I used to prosecute cases we didn't have DNA. We did have bullets, we did have fingerprints, we did have tool marks, we did have fiber analysis and so forth. I think every crime victim in America deserves to have the highest quality of forensics examination, whether it's DNA or whatnot. If we take on the challenge of comprehensive forensic reform, we invest more in research and training for all forensic sciences--I think I know the answer to this--not just DNA, would that help us solve more crimes? Dr. Buel. Mr. Chairman, if we can fix the infrastructure of our country, if we can fix the bridges, roads, we can improve forensic science. I think it's imperative. I think, like you mentioned, there's only a certain number of cases where DNA would be appropriate for use. The other disciplines provide much information for the prosecutor to either eliminate or include somebody as a suspect. The NAS report took some snapshots of these disciplines, and I believe what we need is a full album of pictures to see how best to go forward with some of these areas. That's my recommendation of something like the NRC report, done on a national level for some of these other areas. So, yes. The same sort of support we're giving to DNA, where we're trying to remove the backlogs, trying to improve the science, trying to make education paramount for each examiner would go a long way in solving crimes in our great country. Chairman Leahy. Well, Dr. Buel, I like the fact that you mentioned that there's not DNA evidence in a lot of crimes. I just want to underscore that. Many times now, because of, I call it the ``CSI effect'', people are saying, OK, where is the DNA evidence? In an earlier era, where are the fingerprints? In many cases we don't have that and we don't have those things. I think it's good that you emphasize this. Mr. Neufeld, you talked about forensic evidence exonerating people. You've worked very hard, you and the others, on this area. How important is comprehensive scientific research and testing of the non-DNA forensic sciences? Are we doing enough in the non-DNA forensic sciences in our standards and our testing? Mr. Neufeld. Well, you know, it's interesting. Congress historically has been extremely generous in providing States and localities money to do forensic DNA testing. I think one of the main reasons they were generous is that everybody understood the validity and reliability, the robustness of this technology. It made sense. It was good public safety. What this issue---- Chairman Leahy. Could we not be doing the same in some of the other areas? Mr. Neufeld. Well, I mean, what the NAS report is saying, you know, these other areas are not as robust and they need more research, basic research, applied research. They need standards, like DNA has. Once they have those things in place, sure, they should be getting additional funding as well. But to simply give the funding for the other disciplines---- Chairman Leahy. But isn't there kind of a chicken/egg thing there? I mean, if you're going to improve them you're also going to have to have funding, training, and standards to improve them, are you not? Mr. Neufeld. Well, absolutely. But what you have to do scientifically, is the first thing you do is you have the basic and applied research to validate. Once it's validated you come up with standards and parameters for understanding when the technology will work and when it won't work, and then you have additional funding to train all the people who are utilizing it to make sure they do it the right way. It's not a chicken and egg, it's actually a very logical procedure---- Chairman Leahy. So what you're saying is, establish the standards and then make sure you've got the money so the standards can be used. Mr. Neufeld. Absolutely. And to establish the standards, do the necessary research. Chairman Leahy. Thank you. And if I might, with the forbearance of Senator Sessions, just ask one other question. I'll put the rest in the record. Chief Hurtt, I read more than I laid out in my introduction of you about the problems you faced in Houston. You actually had two choices. You could have tried to sweep it under the rug or you could have confronted it and tried to make changes and do the necessary retesting, evaluation, and so on. Based on your experience, and based on your experience of 40 years in law enforcement, what would you tell another police chief if they called you up and said, hey, chief, I think we're a little shaky in our labs here. What should I do about it? Chief Hurtt. Thank you, Mr. Chairman. The first thing the chief did, as far as admitting to, is that he did have a problem. The other is to make sure that any process that is undertaken to fix that problem, that they be very transparent. The only way that we're going to be able to regain the confidence of forensic science, whether it's DNA or the other sciences, we need to make sure that we make it plain that we understand that there were mistakes or errors made and that we're taking the appropriate steps, and that we will employ experts in the field like we did in the Houston Police Department to come in and do an extensive investigation and then implement the recommendations from that investigation. Thank you. Chairman Leahy. Thank you very much, Chief. Chairman Leahy. Senator Sessions, thank you for your forbearance. Senator Sessions. Thank you. Mr. Brown, I also would say to you how distressing it is to hear your story and what you suffered as a result of an injustice. That's pretty clear that that happened and it troubles me, as someone who has spent a lot of time in law enforcement. I've seen some close cases. The two I've seen that were innocent, the hair still stands up on my neck when I think about them. Neither served a lot of time. It was eyewitness testimony that turned out to be wrong. So, it's scary. We have to be careful in the criminal justice system. I would note that in the Corsican Daily Sun in Texas, Judge John Jackson, who was one of the prosecutors in the Willingham case, wrote a letter August 28th that was published. He said the trial of Mr. Willingham contained overwhelming evidence of guilt completely independent of the undeniably flawed forensic report. He said, for example, the event which caused the three children's death was a third attempt by Todd Willingham to kill his children, established by the evidence. He had attempted to abort both pregnancies by vicious attacks on his wife in which he beat and kicked his wife with the specific intent to trigger miscarriages. Blood gas analysis revealed that he had not inhaled smoke, contrary to his statement which detailed rescue attempts. He rejected taking a polygraph. He was a serial wife abuser, both physically and emotionally. His violent nature was further established by his vicious attacks on animals, which is common to violent sociopaths. Witnesses heard him, at the funeral of his deceased older daughter, at the funeral home, whispering to, I guess, the body, ``You're not the one who was supposed to die.'' A refrigerator had been pushed against the back door, making it difficult, if not impossible, to get out. When a plea bargain was discussed with him, it was rejected with an obscene and potentially violent confrontation with his defense counsel. So I don't know what the truth is in that case. That does not excuse a flawed forensic report, but it looks like there was other evidence in the case indicating guilt. Chief Hurtt, you have a big police department. You bring a lot of cases every year. Do the delays in forensic sciences overall, a lack of resources in the forensic science laboratories, does that present a problem for your police officers who go out and make a case, but then you have to wait before it can go forward to prosecution for these reports to be completed? Chief Hurtt. That is, indeed, a problem that we face in the Houston Police Department on a daily basis. For instance, we were investigating a serial rapist and homicide case in north Houston and we wanted to send out some evidence to the FBI DNA lab. It took almost a year for us to get a return on that because of the backlog that they were facing and the requests that they were getting from around the country. Senator Sessions. So you send your DNA to the FBI lab routinely? Chief Hurtt. In some cases, sir, we send it to the FBI lab, but we do have a fully operating lab within the Houston Police Department. Senator Sessions. Mr. Matson, I guess you're still prosecuting, but as a Talledega County prosecutor do you find that frustrating for law enforcement officers and prosecutors, the delays in getting forensic reports? Could those delays actually result in a criminal being able to run loose in the community and commit more crimes? Mr. Matson. Yes, it is. It's frustrating. One case comes to mind. We would not report a case out of grand jury until we got the forensic reports back to make certain. An individual that wanted to plea on the information, which is a pre-indictment form of plea in our State, they made the written request. He said, I was caught with it, it was powder, it was LSD, and I want to plead guilty. The report came in about 6 weeks later and it was not. He had been ripped off when he bought it and it wasn't LSD. He couldn't plead to the controlled substance. He could have plead guilty to something he thought he had, but we had to wait. That delay caused serious problems in that case. So delaying those cases--we can't go to trial until we have those reports, and sometimes when you get the reports, then you need further analysis. But I will say this: our State has an independent forensic sciences department and they have made great strides in our State to overcome that backlog, but it's come at a great cost, financially and manpower. They're working tremendous hours to get this backlog. I remember several years ago--many years ago, about 10 or so, maybe, going to the lab to speak with an expert, with the defense lawyer, on a case upcoming. I walked in and there were refrigerators down the wall full of rape kits waiting to be done that had to be compared to some perpetrator or to the database system. Senator Sessions. Did Federal funding help the backlog, to your knowledge? Mr. Matson. Yes, sir, and we thank you so much. They really did. They were just backed up, and they've been able to get those taken care of and it's been a great help. But that backlog is a tremendous burden for us. Senator Sessions. My time is over. Mr. Redle, do you believe that the report, perhaps trying to get our attention, used some pretty strong language suggesting the unreliability of what I have always understood to be proven scientific techniques? Is that something that the District Attorneys are finding, as Mr. Matson said he's finding in Alabama, that this is being thrown up to create the impression with a jury that there's no basis for these kinds of reports? Mr. Redle. Senator Sessions---- Senator Sessions. You might push your button there to go on record. Mr. Redle. Thank you. Senator Sessions, yes. It seems to be spotty around the country, but as a result, we're trying to track that within the national DA's community to see where the impact is, what disciplines are being subject to attack. There are some concerns, although I would note that the National Academy report does indicate that it is not passing any judgment on the use of any of these techniques in prior cases, in past cases. It's simply calling upon the country, the Nation, as it were, policymakers such as yourself, to provide the necessary leadership to see that unvalidated issues of science are given the resources to be validated. Senator Sessions. Well, you're right, it does make those qualifications. But there is some language, I assume, that's probably being thrown up in court a lot. I'd like--Madam Chairman, maybe we can talk with Chairman Leahy, you, and others on this issue. Maybe some national training. Maybe we don't have enough national training centers. It would be something the Federal Government could do without taking over local law enforcement, providing training at a discounted rate, or free, for people so we reduce the possibility of error. Thank you. Senator Klobuchar. Thank you very much, Senator Sessions. Senator Franken. Senator Franken. Thank you, Madam Chair. I have a question for Mr. Neufeld. I read the article in The New Yorker about Mr. Willingham. Actually, I find some of Mr. Jackson, the prosecutor's, testimony to be very suspect. It doesn't seem that it washes. There are parts of this article that really--first of all, five experts said that there was no arson in this. But I don't want to argue this case, but I found the article extremely disturbing and the findings of the National Academy's report to be terrifying, both for the falsely accused and for the safety of our communities who falsely think the real criminals are off the streets. In my opening statement I asked whether we should consider a nationwide moratorium on the death penalty. What do you think of this? Do you think it is necessary at this point in time? Mr. Neufeld. Thank you, Senator. First of all, just to follow up on the remark you made in response to Senator Sessions' statement about the case in Texas, in all these cases, Senator, where we've exonerated people, there was overwhelming evidence of guilt. It just so happened the person was innocent. What we find so extraordinary in these cases is that when we go back and we deconstruct them, all those different pieces that, together, look like overwhelming evidence of guilt, turn out to not hold scrutiny. For example, in Mr. Brown's case there was also a jailhouse informant who said he had confessed to him. He, too, had a wife who said not such nice--an ex-wife who said not such nice things about him during the course of the prosecution. It turned out that the informant was wrong, that the wife's remarks had a certain bias themselves, and indeed, this man, Roy Brown, was completely innocent, but nevertheless spent 15 years in prison. The same can be said for the other 241 post-conviction DNA exonerees, 17 of whom had been sentenced to death. Many of them had been sentenced to death based on the misapplication of forensic science. The case that Mr. Giannelli referenced of Ron Williamson, came within five days of execution. The centerpiece of that case was bad hair evidence from the State hair examiner. Mr. Brown, fortunately, was never on death row, but we had a death row inmate in Mississippi where the leading forensic dentist said it was absolutely certain it was his teeth, to the exclusion of the whole world. He was dead wrong. He came within months of being executed. Again and again and again, in hair, in serology, in bite marks, and in fingerprints. Brandon Mayfield could have faced the death sentence as a terrorist had he been convicted as an accessory in the bombing of the Madrid train station. Nevertheless, completely innocent. So the point is, to answer your question, finally, is that whereas we can debate all kinds of things about the death penalty politically, philosophically, religiously, the one thing we can't debate is that all these wrongful convictions demonstrate quite compellingly that the system is not quite as perfect, as invulnerable as we always thought it was and to have a punishment where you can't reverse it in the event you find new evidence of innocence, as in the Willingham case, raises a very serious problem and perhaps a justification for considering suspending temporarily the death sentence unless and until we can make these forensic sciences sufficiently rigorous that we don't have to have those reservations. Senator Franken. Thank you. Mr. Matson, the National Academy's report unequivocally says that DNA testing is far and away the most reliable and scientifically sound forensic technique. Yet, as you mentioned, law enforcement agencies around the country have a major backlog of rape kits that often contain critical DNA evidence. These should be high-priority cases. Given your experience in the field, what do you think we should do, or could do, to make sure that funding is available for forensic testing, to maximize DNA testing? Mr. Matson. Senator, I think Congress has taken great steps to provide funding for that. I think those backlogs are starting to decrease. We're seeing that in our State, and in a lot of States. I think the state of forensic science, particularly with DNA in that area, even the NAS report and I think the folks at this table would agree, that DNA is in a place where we would like it to be. I think it's important, though, when we look at DNA cases and we look at the exoneration cases, to understand that when we say that serology and hair evidence that Mr. Neufeld mentioned earlier, that those cases are flawed science. Well, 75 percent of the cases that have gone through The Innocence Project, or those people that were exonerated, were cases that were hair and serology from maybe 20 years ago. Back then, you looked at ABO secreters for blood typing to determine if somebody left a sample. Well, we're beyond that, so those cases are not happening anymore. We're not having ABO secreters tested, it's DNA. If it's hair, it's mitochondrial DNA. I had the first mitochondrial DNA in the State of Alabama. In that case, we used a laboratory out of Virginia. It cost a tremendous amount of money. We had no local funding for it. We had to find the dollars. We did, and had that case. So I do think that there are things in place to help us in funding and DNA and getting that backlog---- Senator Franken. Thank you, Mr. Matson. Mr. Matson. Yes, sir. Senator Franken. I think you answered my question. Thank you very much. Mr. Matson. Thank you. Senator Franken. Thank you, Madam Chair. Senator Klobuchar. Senator Durbin. Senator Durbin. Thank you, Madam Chair. Mr. Neufeld, based on DNA evidence, how many prisoners have been exonerated following their convictions? Mr. Neufeld. As of today, we have 242 people who have been convicted who have subsequently been exonerated by DNA. I would point out that in almost all those cases, the exonerees had completely exhausted their direct appeals, had completed their collateral attacks on habeas corpus, and would have either been executed or spent the rest of their years in prison but for the sort of serendipitous intervention of DNA testing. Senator Durbin. In those States where access to DNA testing is not available on a post-conviction basis, what is the solution? Mr. Neufeld. Where there hasn't been access to DNA? Senator Durbin. States where there is no access to DNA testing. Mr. Neufeld. Well, that's a tough question, because I had the misfortune of arguing a case before the U.S. Supreme Court this last term to determine whether there was a constitutional right to post-conviction DNA testing, and five of the nine justices disagreed with me. So we're going to do everything we can to create access through the local legislatures as best we can. I do think that there is something more that Congress can do in that regard. When the Innocence Protection Act was passed, it was the will of the Congress that States pass bills that would provide easier access to post-conviction DNA testing, and if they did so there would be certain pools of money made available to them. What ultimately happened with that bill is that the pools of money that would be made available shrunk considerably so it no longer became that important to a State to allow for post- conviction DNA testing. Certainly when you reconsider the Innocence Protection Act, which is coming up, I think, this fall, it would be very useful to go back to the original position taken by many members of this Judiciary Committee to create a much greater incentive for those few States who have so far refused to grant access to DNA testing. Senator Durbin. Mr. Matson, as a professional prosecutor, don't you believe, in good conscience, that there should be DNA testing in every State? Mr. Matson. Yes, sir. I believe that when it's available, when the DNA evidence is available to show that, then it should be. I would give an example, though. Something we must understand is, post-conviction evidence, sometimes from so many years ago, that evidence, it could be an article of clothing, may be kept in a filing cabinet in a court reporter's office. I had a case that involved a post-conviction on a death penalty case. We were in the Rule 33, or post-conviction hearings. About a year into it, the person serving time, a clerk wanted to come down and look at some of the evidence. They opened the rape kit. He wanted to open it and actually touch it. Well, he would have left DNA in that sample. Senator Durbin. But that's an issue that would be raised, would it not, on chain of custody and credibility of the evidence? I mean, it could be that there is not any piece of evidence remaining that could either convict or exonerate a person. I mean, the court has to reach a threshold of where they have some credible piece of evidence. But assuming they have a credible piece of evidence and chain of custody, you're saying, as a professional prosecutor, you believe there should be DNA testing allowed, is that correct? Mr. Matson. Any time that we can do anything to find the truth, I support it. I just know that sometimes when you've got a case that is 8, 9, or 10 years old and you've got a sample, maybe from a rape kit or something of that nature, maybe an article of clothing you want to test, we don't know who's handled it and who hasn't handled it in 10 years. Then we come back if a motion for a new trial is granted. The prosecutor is dead, the witnesses are dead, and I'm left there reading a transcript into the record in front of a jury for 3 days. Senator Durbin. I think you make a valid point there, and I appreciate your statement. Mr. Neufeld, are there any forensic science methods that we should basically disregard based on what you've been through? I mean, we understand that nuclear DNA analysis is reliable, but are there some forensic methods that you believe are so intrinsically suspect or unreliable that we should not count on them? Mr. Neufeld. Senator Durbin, I'm not a scientist. I'm also not a good technician. I'm not a scientist and I'm unqualified to answer that question. In fact, there's only one scientist actually sitting at this bench right now, and that's the doctor from Vermont. Others have written who are scientists that a number of disciplines have not been adequately validated. I have seen firsthand, in the cases that I've represented individuals, where technologies that are still in use, such as bite marks and arson, are nevertheless misapplying science and the result is that there are wrongful convictions and the really bad guys are left out there to commit more crimes. If other scientists who are reputable scientists have reached that kind of consensus as they did in the National Academy of Sciences report, then that should be a cause for pause. But hopefully that decision will be made by other scientists, not by a mere lawyer. Senator Durbin. Thank you. Thank you, Madam Chair. Senator Klobuchar. Thank you very much. Senator Whitehouse. Senator Whitehouse. Thank you, Madam Chair. Chief Hurtt, I'd like to ask you to comment on the problem of delays, particularly delays occasioned by lack of resources in the processing of crime scene evidence, not only from the perspective of its effect on the prosecution of that particular offense, but from a police and investigation point of view as you try to develop leads that might relate to other cases. This was brought home by a recent visit in Rhode Island with a local police chief who had been waiting over a year for a simple firearms ballistics report to come back to him in a case. How significant is it, in terms of your own investigative authorities and responsibilities as police officers, to not just have accurate scientific evidence, but timely access to it while the crime is fresh and the witnesses are around and interconnections can be made with other evidence in other cases? Chief Hurtt. Madam Chair, Senator Whitehouse, that's a very good question, because as cases linger my investigators are assigned new cases every day. In order for them to be able to manage their cases, at some point they need to close a case, clear it, and move on, otherwise we'll have officers with stacks and stacks of cases. We are very interested in seeing that justice is done. When we have delays, as you say, witnesses disappear, people die, and I guess the worst part of it all, when we have to wait long periods of time for evidence to be tested, that suspect may stay free to continue to commit other violent offenses. So I guess to sum it up, number one, it increases the workload for the detective, it also gives an opportunity for that individual to remain free and commit other crimes, and justice is not being served to the victims that have been victimized by either property crimes or violent offenses. Senator Whitehouse. Thank you, Chief. I guess I'd like to ask prosecutors, Mr. Matson and Mr. Redle, this. When I was our Attorney General in Rhode Island, it's one of the very few States where the Attorney General is also the D.A. We, Delaware, and Alaska are the three. So I have been in your shoes and I remember very distinctly a case that happened during my tenure when a police officer who had been convicted of murder proved to have been innocent. He was imprisoned, and it was my, I guess, mixed duty-- happy to get the right thing done, unfortunate this happened in the first case--to move as rapidly as we could to secure his release from prison and proceed with the prosecution of the individual who had come in to confess to the crime after the police officer had spent several years in prison for a crime that he had not committed. Now, Rhode Island doesn't have a death penalty. We gave it up years ago after a murder back in 1850, when it appeared very much that the wrong individual had been convicted and hanged for the murder. So we haven't had to face the issue of dealing with death penalty prosecutions. But I was also U.S. Attorney. The U.S. Attorneys Offices have very rigorous standards for proceeding with a death case. They struck me as being good, thoughtful standards. I was glad, as U.S. Attorney, that there were these additional layers of process, procedure, internal review, disclosure, and so forth that were required for death penalty cases. I don't believe that those standards exist around the Nation. In many States there seems to be no real difference at all between a death penalty case and a regular case. I'm just wondering what your observations are as prosecutors about the extent and the merits of additional procedural protections in death penalty cases where, if there is error, the error becomes irretrievable by virtue of the application of the death penalty. Mr. Matson. You would like us both to respond? Senator Whitehouse. If you would. Mr. Matson. If I could, a judge that I've worked with for many, many years said he called death penalty cases death penalty cases because the judge and the prosecutor were dead before the defendant was because of the years it takes. That's actually true. It is a lengthy process. In our State, and I think in most States, you have, certainly, the charging process and the grand jury process, and then the trial itself, which is bifurcated here. We have a jury trial, and then once there is a finding of guilt of capital murder--and that doesn't necessarily mean death penalty. Probably more times than not when I've had a capital case I sought life without parole, or non-dead, which was the recommendation of the victims, the community, or law enforcement, and so we didn't seek death in those cases. It's not a given that it's going to be death. But we go through that process and then there is a stringent amount of appellate systems. We have lengthy post-conviction hearings that come back to State courts where evidence is taken, things can be retested, are retested, and they take years. I do think we do have those safeguards in our State system. Senator Whitehouse. And you're comfortable that that's true not only of your own State system, but across the country? Mr. Matson. I will say this. I'm asked a lot of times, are you for the death penalty? Until you've stood in front of a jury, 12 people, and asked for that punishment, you really don't know. Everybody in a coffee shop somewhere says they are, but they don't really know. That's why the jury selection process is very difficult. When I'm asked that, are you for the death penalty, I say, in the cases that I've had, in the horrible, gut-wrenching homicides that I've had, yes. In a case in some other States, the facts--it's hard for me to speak to a case in another State that I don't know the facts of, I've not sat on, I've not been part of that. So when those decisions were made, I trust the judgment of a person who lives in that community, who is a part of that community, who has weighed the evidence. I know the jury system, I know the evidence in the case, and I believe in those cases the right thing was done for those people, but I can't judge that for myself because I'm not in that State, in that circumstance. Senator Whitehouse. Mr. Redle, my time has expired, so it looks like you're off the hook. Madam Chair. Senator Klobuchar. If you want to finish up, Senator Whitehouse, you can. Okay. I wanted to thank all of you for your good testimony here, and I wanted to focus a little bit more on where we can find some agreement on the recommendations of the panel. I sit here and I've listened to both the prosecutors and I just feel that frustration when you want to get a case done and you have a delay in the evidence, and 2 years from now it's much harder to do, or a year from now, than it would have been if you could get it back in a month. I also have had my own experience with working and finding out that we thought we had the right person for 8 years, when-- you've all had these cases--some eyewitness comes forward and says this is the right person, and then you get the DNA back-- and what a blessing it is to have that science--and you find out, no, it's not the person that was arrested that happened to live in the building that looked like the guy, it's someone else. So I think the science has been truly a blessing, both for convicting people and also for making sure we are not convicting people who are innocent. So I want us to all remember that as we go forward. The questions I had were specifically, first, on this report, if there could be some agreement from the prosecutors on this accreditation issue, that this is something--despite the language you may not agree with in the report, that that is something that we could look at going forward as a possibility that could be helpful. One of the things with the delays, we've seen more and more testing, forensic testing going on, and there would be a reason, I would think, to try to have some set accreditation. I just wondered if you could comment on that. Mr. Redle. Senator Klobuchar, yes. I think in most instances we actually agree with a lot of the recommendations that the National Academy makes, accreditation being one of them. In fact, as a result of the DNA testing and the standards that were placed on that by the DNA Advisory Board, you now are looking at a community of forensic crime laboratories where I believe we're pretty close to 90 percent of the public laboratories are in fact accredited. That's a good thing. Certification needs to happen. That needs to be the next step. We believe in standards. The devil is always in the details, but we believe in the imposition of appropriate standards on those disciplines. Senator Klobuchar. Thank you. Mr. Matson, do you agree with that? Mr. Matson. Yes. Yes, I do. We have taken steps in our State, in the example of computers. Senator Klobuchar. I know. But how about this? Just to go back to the report, I think--correct me if I'm wrong--they're looking at some national standards for accreditation. Do you think that would be all right? Mr. Matson. Certainly. I think the more we can give credibility to the science and to the technology and the technicians that are doing it, the better. I would support that. Senator Klobuchar. Okay. And then the other piece of this is to suggest some kind of a National Institute of Forensic Science to try to get some more research. I realized, as we went on, we had the type of DNA testing, for instance, or other kind of testing got more and more refined as the science got more and more refined. Not only did this involve the training that Senator Sessions was mentioning, which I would hope would be a part of any effort that we would have here, some training dollars as well as some of the backlog that you're talking about, but this idea of the research that is suggested by the report, is that something that you think would be helpful? Mr. Redle. Madam Chair, in terms of research, I believe we do need more dollars for research. Whether or not that would best be provided through some kind of National Institute of Forensic Sciences, I very much doubt it. I think that we can be more efficient than that. I think we have the framework for accomplishing a lot of those things through already existing agencies. It was odd to me when I read the National Academy report that it proposed the National Institute of Forensic Sciences and rejected the National Science Foundation and NIST as being host agencies, perhaps, for research funding. It did so on the basis that they had modest experience in research funding. Yet, it was proposing the creation of a brand-new agency that at least presumably would have no experience in research funding. Senator Klobuchar. Okay. Do you want to answer that, Mr. Giannelli. Mr. Giannelli. I was a prosecutor for 2 years in the Army, so I appreciate the frustration that prosecutors are now facing with this report. I've talked to lab people and they're frustrated, too. The problem, though, is if you look at the cases by 1995, some of the cases I cited, this evidence was being challenged under Daubert and the research was not done. It's been 14, going on 15 years when we've had these first cases and the research has not been done under the current system. So that is the problem here. Now, the money was being given, but it was not funneled through the right type of research. I think you need some sort of independent scientific research program. Thank you. Senator Klobuchar. Okay. Thank you. Do you want to add anything, Mr. Matson? Mr. Matson. Just, we agree with the concept of the research and having that, but I don't know that a new political entity that would go through the political process, the ebbs and flows of politics getting into forensic sciences, is not something I think we need at this time. Senator Klobuchar. Okay. We'll look at that. I had wanted to ask one question about a case that actually I asked now-Justice Sotomayor about, Mr. Neufeld. Just so people know, I actually worked with The Innocence Project a little bit when I was a prosecutor. We videotape interrogations in Minnesota, and actually our police have grown to like it because it has protected them in various claims and also has protected defendants, so we've worked together on that, as well as eyewitness identification. It was again I found that we could find some common ground on some of these issues. I had a question about the Melendez-Diaz case. I think I had told you that I disagreed with that case and agreed with Justice Kennedy's dissent. This is the case about requiring various people--it's not clear from the details--to testify in forensic cases. You yourself, in your written testimony, said that cross examination wasn't enough to weed out bad forensic science because judges and lawyers didn't usually have the scientific backgrounds to understand the limitations of some form of forensic science evidence. So I'm just curious about how that Melendez-Diaz ruling could be a good thing if it just guarantees more cross examination that may not be particularly useful in the first place. Mr. Neufeld. Senator Klobuchar, I think you're completely correct. It's our position that one of the problems right now, and why the court took the position that it's not enough to introduce a certified crime lab report, that you'd want the individual who actually created that report in court, is currently there are no national standards about the content of a report. We have seen too many forensic reports all over the country which have little more than a paragraph in length and a thumbs up or a thumbs down. The kind of report that if your doctor gave it to you for an important medical decision, you'd fire the doctor and go to a new hospital. What we're talking about here, and what the NAS is talking about, is having meaningful standards for report writing, standards which will require the forensic scientists to not only describe what items were tested, to describe what methods were utilized, to identify the results, and then draw conclusions. Those are the things that go into a standard scientific report. If they did that here, OK, I can assure you, based on my experience--and that's what happens with DNA--what happens is, there are more pleas based on that report. If there aren't pleas, there are stipulations to the content of the report, because the last thing a defense attorney needs is some scientist who can support all of those findings with comprehensive reporting. Senator Klobuchar. So your argument is, if you had more set standards for these reports, then you wouldn't need these witnesses testifying? Mr. Neufeld. My opinion, Senator Klobuchar, is if you have these reports you will ameliorate the problem considerably because people will simply stipulate to their results and they won't have that kind of need to confront somebody on the witness stand. There may be some occasions where someone does it, but there's no question that if you have more rigorous report writing, it becomes a more efficient system. Senator Klobuchar. Senator Sessions, do you have more? Senator Sessions was out, but we did have a good discussion at the beginning about some common agreements here on the accreditation issue, and perhaps more research. There was some disagreement on where that research should be housed, but I was trying to--as you and I had discussed up here, there is some common agreement we can find here with this important report, while people may not agree about all the language in it as we move forward, and I added that we may want to look at funds for the training that you addressed, as well as the backlog that we continue to deal with all the time, Chief Hurtt. Thank you. Senator Sessions. Well, law enforcement overwhelmingly is a State and local responsibility. The Federal Government has a lot of problems, but one of them should not be to try to micromanage every burglary, robbery, or rape case in America. It's just not possible to do that. What can the government do? Well, Fred Thompson, when he was on this Committee, he believed that we should conduct--the first thing the Federal Government could do in a positive way is to spend the money to do the kind of research that can benefit every State and local law enforcement agency in America, to provide training, to do those kinds of things. None of those result in a major bureaucracy, hopefully, nor a takeover of local responsibility. So I'm positive about a lot of things that we could do together. Dr. Buel, with regard to DNA, that's sort of uniquely capable of a virtual absolute scientific certainty, is it not? Not total, but it's---- Dr. Buel. We in Vermont still use statistics, so we give a statistical analysis of the results. Senator Sessions. How many chances---- Dr. Buel. If you're giving statistics in the town of Montpelier that has a population of 10,000, and they're in the billions, it's pretty good evidence. Yes. Senator Sessions. Well, I think that's true. Now, with regard to fingerprints, that is just never going to be an exact science, is it? Dr. Buel. Well, I guess my feeling is that under proper use, when it's in an accredited laboratory, when we use quality assurance controls, when we have proficiency testing, blind proficiency testing, peer review, verifications, that we're trying to do the best possible job that we can. If we use a conservative approach to how we are to do this work, I think it's properly done and provides excellent evidence. Senator Sessions. Well, I've seen them testify and I've seen blow-ups of the handwriting, and it's pretty impressive. If that was the only thing in the world I had as evidence against a defendant I might be a bit nervous if I were a juror or a prosecutor, but when you see that as cumulative, it makes you believe it's very unlikely somebody else wrote that document. But some handwriting, there's not enough of it and it's not so clear. With regard to your forensic people in Vermont, if they wanted to be trained in fingerprint analysis or ballistics or DNA, where do you go? What kind of--are there a lot of places? Could we do a better job of having training centers of the highest order? Dr. Buel. Yes. Our region has what we call a New England Laboratory Directors Group. Several years ago, we wrote, I guess, a very short position paper to NIJ, the National Institute of Justice, requesting them to---- Senator Sessions. To a National Institute of Justice? Dr. Buel. Of Justice. Yes. To try to provide some funding such that we can establish centers for fingerprint examiners and firearm examiners to go through a college such that when they come out, that they would be able to pass a CTS, a collaborative testing program proficiency test. Now, that would get them up to a point, but they would still need further in- house training in the laboratory. Okay. So that is---- Senator Sessions. Does that exist today? I mean, how does a fingerprint person who comes out of college and they want to be a fingerprint analyst, where do they get trained? Dr. Buel. What we do in forensics, is we steal one from the other laboratory. [Laughter.] Dr. Buel. And it's unfortunate. We just stole one from Chicago. Hopefully we won't have somebody steal one from us. But it's a very small group. It's a lot of on-the-job training that takes a couple of years to do. But there could be educational programs that allow individuals to come out with, perhaps, a 5-year degree, able to do at least the basics and have the understanding to do a proficiency test. That would not prepare them to do casework, but that would prepare them to do in-house training. Senator Sessions. Chief Hurtt. Chief Hurtt. Thank you, Madam Chair and Senator Sessions. I listened to the conversation about more, I guess, training in fingerprints and trace evidence and firearms to ensure that we're doing a good job in identifying suspects. In my 40-plus years of law enforcement, I've found DNA to be the best source, or dependable source, of identifying the suspect in criminal cases. Last year, myself---- Senator Sessions. If you have it and the scientific analysis is good, reliable. Chief Hurtt. Yes. But I think, with major cities, counties, and State labs and FBI labs, small jurisdictions should have access to DNA. Whether they have to send it to the Federal, the State, or one of the major cities in this country, there should be access to DNA. Last year, I'm going to share with you, myself and several of my staff members made a trip to the U.K. to visit their crime lab, as far as DNA, and also to visit new Scotland Yard. At Scotland Yard, they have used DNA for the identification of property suspects, burglary suspects. They've used skin cells and also information that they gained because the person left prints at the scene, whether it was fluids or skin cells. Their detection rate of suspects increased from 15 percent to 50 percent. Now, is it a good investment of our time to continue to train people in being able to do fingerprint identification or should we move the practice toward using DNA or touch-DNA to solve problems or property crimes? I would submit, the best process would be, move toward using DNA to solve property crimes as well as violent crimes. Senator Sessions. Good point. Madam Chairman, I would just say that to me, we give billions of dollars to the Department of Justice. I don't know why they're not working on this anyway. I mean, you have to go over there, the police chief of Houston. It seems to me the Department should be on top of all these issues, cutting-edge technology, providing what does work, what is reliable, what's not reliable, and feel that they are a resource, a supportive entity with the best science available, to our local and State law enforcement. To me, I've always felt a bit blase about that. The National Institute of Justice and Bureau of Justice Statistics provide a lot of valuable information, but I think we could do a better job of getting into that. Mr. Chairman, I would offer for the record the Corsican Daily Sun. Senator Cornyn had provided that to me. He was not able to be here at this hearing and he wanted it made a part of the record, and I would offer that. Senator Klobuchar. Without objection, it will be included in the record. [The article appears as a submission for the record.] Senator Klobuchar. All right. Well, I wanted to thank all of you for being here today, and especially for Mr. Brown, for sitting through this hearing and everything that you've had to endure. I want to thank you for your courage in being here. Also, just to point out again, I do think that we have some common agreement on the need to move forward here with some of the recommendations from this report. Again, we will work out the details and we will work with all of the groups involved here. That's how we like to get things done. But I will stress again that I have found some common ground with prosecutors, defense lawyers, and police, that we always want to get the right person, if for no other reason than the person who committed the crime is still out there, not to mention, no one wants to put an innocent person behind bars. So I think that there's good reason to move forward here. This has been a very helpful hearing. Thank you very much. We are adjourned. [Whereupon, at 12:02 p.m., the Committee was adjourned.] [Questions and answers and submissions follow.] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]