forensic science oversight and policy development: lessons from new york and observations about the...

FORENSIC SCIENCE OVERSIGHT AND FORENSIC SCIENCE OVERSIGHT AND POLICY DEVELOPMENT: POLICY DEVELOPMENT:

LESSONS FROM NEW YORK AND LESSONS FROM NEW YORK AND OBSERVATIONS ABOUT THE COMING OBSERVATIONS ABOUT THE COMING

NEW ERA OF FORENSIC SCIENCE NEW ERA OF FORENSIC SCIENCE REFORMREFORM

Prof. Barry Scheck, Cardozo Law Prof. Barry Scheck, Cardozo Law SchoolSchool

Co-Director, Innocence Project,Co-Director, Innocence Project,Comm., NY Forensic Science Comm., NY Forensic Science

Comm.Comm.

GOALSGOALS

HISTORYHISTORY OUR SUCCESSESOUR SUCCESSES OUR FAILURESOUR FAILURES STRUCTURAL STRENGTHS AND STRUCTURAL STRENGTHS AND

WEAKNESSESWEAKNESSES DETAILED DISCUSSION OF SECTION 311 DETAILED DISCUSSION OF SECTION 311

ENFORCEMENTENFORCEMENT SUGGESTIONS ABOUT ANTICIPATING SUGGESTIONS ABOUT ANTICIPATING

NEW ERA OF REFORM POST NAS REPORTNEW ERA OF REFORM POST NAS REPORT

POST NAS ERAPOST NAS ERA AGREE WITH BARRY FISHER & PREDICTAGREE WITH BARRY FISHER & PREDICT

WILL PROPOSE FEDERAL FORENSIC SCIENCE WILL PROPOSE FEDERAL FORENSIC SCIENCE INSTITUTE, LIKE NIHINSTITUTE, LIKE NIH

WILL BE FEDERAL LEGISLATIONWILL BE FEDERAL LEGISLATION VIEWS FORENSIC SCIENCE AS INDEPENDENT VIEWS FORENSIC SCIENCE AS INDEPENDENT

THIRD FORCETHIRD FORCE FEDERAL INCENTIVES TO MAKE CRIME LABS FEDERAL INCENTIVES TO MAKE CRIME LABS

INDEPENDENT OF POLICE AND PROSECUTOR INDEPENDENT OF POLICE AND PROSECUTOR CONTROL & BUDGETSCONTROL & BUDGETS

WILL ENCOURAGE PUBLIC OVERSIGHT BY WILL ENCOURAGE PUBLIC OVERSIGHT BY STATE AND LOCAL ENTITIES AS WELL AS STATE AND LOCAL ENTITIES AS WELL AS PROFESSIONAL ORGANIZATIONS, LIKE CLIAPROFESSIONAL ORGANIZATIONS, LIKE CLIA

FOCUS WILL BE BEYOND DNAFOCUS WILL BE BEYOND DNA FORENSIC MEDICINE – NO CORONERSFORENSIC MEDICINE – NO CORONERS

POST NAS ERAPOST NAS ERA

NATIONAL BEST PRACTICE, Q/A NATIONAL BEST PRACTICE, Q/A STANDARDSSTANDARDS Proficiency tests on samples replicate Proficiency tests on samples replicate

casescases STANDARDS FOR REPORT WRITING, STANDARDS FOR REPORT WRITING,

DISCLOSURE OF INFO, TESTIMONYDISCLOSURE OF INFO, TESTIMONY ELECTRONIC DISCOVERY (BCS)ELECTRONIC DISCOVERY (BCS)

NATIONAL CODE OF ETHICSNATIONAL CODE OF ETHICS RESEARCH ON HUMAN OBSERVER & RESEARCH ON HUMAN OBSERVER &

CONTEXTUAL BIAS, ERROR RATESCONTEXTUAL BIAS, ERROR RATES


EDUCATIONAL OPPORTUNITY FOR UC EDUCATIONAL OPPORTUNITY FOR UC & CAL STATE (SECT. 2 (C) 1 (E)& CAL STATE (SECT. 2 (C) 1 (E) BASIC & APPLIED RESEARCH BASIC & APPLIED RESEARCH

COMPETITIVE, PEER REVIEWED GRANTS COMPETITIVE, PEER REVIEWED GRANTS FOR PHYSICAL, LIFE SCIENCES, INFO FOR PHYSICAL, LIFE SCIENCES, INFO TECHNOLOGY, FORENSIC PATHOLOGYTECHNOLOGY, FORENSIC PATHOLOGY

DEVELOPMENT OF INTERDISC DEVELOPMENT OF INTERDISC GRADUATE PROGRAMSGRADUATE PROGRAMS

DEVELOPMENT OF BEST PRACTICES DEVELOPMENT OF BEST PRACTICES OUTSIDE OF DNAOUTSIDE OF DNA


DISCIPLINES IN NEED OF STANDARDS, DISCIPLINES IN NEED OF STANDARDS, MEASURES, AND FURTHER VALIDATIONMEASURES, AND FURTHER VALIDATION FINGERPRINTSFINGERPRINTS

INTEROPERABILITY OF AFISINTEROPERABILITY OF AFIS IMPRESSION EVIDENCEIMPRESSION EVIDENCE

TIRES, ODONTOLOGY, SHOEPRINTSTIRES, ODONTOLOGY, SHOEPRINTS TOOLMARKS AND BALLISTICSTOOLMARKS AND BALLISTICS

OPERABILITY OF BALLISTICS DATABASEOPERABILITY OF BALLISTICS DATABASE DIGITAL EVIDENCE (ELECTRONIC DOCS)DIGITAL EVIDENCE (ELECTRONIC DOCS)


DISCIPLINES IN NEED OF STANDARDS DISCIPLINES IN NEED OF STANDARDS & MEASURES& MEASURES PAINT PAINT FIBERSFIBERS ARSON INVESTIGATIONARSON INVESTIGATION

NY Forensic Science CommissionNY Forensic Science Commission

Evolution: Poklemba Comm.Evolution: Poklemba Comm. Regulatory scheme borrowed from Dr. Regulatory scheme borrowed from Dr.

David Axelrod, head of NY Dept of David Axelrod, head of NY Dept of Health, for clinical labsHealth, for clinical labs

Axelrod father of CLIA Axelrod father of CLIA Last bill signed by Mario CuomoLast bill signed by Mario Cuomo Same structure recommended in first Same structure recommended in first

NRC Report on DNA & Forensic NRC Report on DNA & Forensic ScienceScience

PERSONAL BACKGROUNDPERSONAL BACKGROUND

POKLEMBAPOKLEMBA COLD SPRING HARBORCOLD SPRING HARBOR DNA LITIGATIONDNA LITIGATION

CASTRO – FIRST NRC REPORTCASTRO – FIRST NRC REPORT HELPED DRAFT NY STATUTEHELPED DRAFT NY STATUTE COMMISSIONER 13 YEARS – SPEAKER’S COMMISSIONER 13 YEARS – SPEAKER’S

APPOINTEEAPPOINTEE WORKED ON DNA IDENTIFICATION ACTWORKED ON DNA IDENTIFICATION ACT PROFICIENCY TESTING STUDY GROUPPROFICIENCY TESTING STUDY GROUP

PERSONAL BACKGROUNDPERSONAL BACKGROUND COMMISSIONER FOR JUSTICE DEPT COMMISSIONER FOR JUSTICE DEPT

COMMISSION ON FUTURE OF DNA EVIDENCECOMMISSION ON FUTURE OF DNA EVIDENCE ASHCROFT HOLDOVERASHCROFT HOLDOVER WORKED CLOSELY WITH FBI ON A NUMBER WORKED CLOSELY WITH FBI ON A NUMBER

OF PROJECTS, RECENTLY CBLAOF PROJECTS, RECENTLY CBLA JUDICIAL, POLICE, DEFENSE, DA, VICTIM JUDICIAL, POLICE, DEFENSE, DA, VICTIM

RIGHT EDUCATION RIGHT EDUCATION ALLY OF PROGRESSIVE FORCES IN FORENSIC ALLY OF PROGRESSIVE FORCES IN FORENSIC

COMMUNITY WHO WANT TO IMPROVE COMMUNITY WHO WANT TO IMPROVE SCIENCE, RELIABILITY, ETHICAL STANDARDSSCIENCE, RELIABILITY, ETHICAL STANDARDS

MAJOR PROPONENT OF ACCRED & CERTIF.MAJOR PROPONENT OF ACCRED & CERTIF.

PERSONAL BACKGROUNDPERSONAL BACKGROUND

DEEPLY INVOLVED IN JUSTICE FOR DEEPLY INVOLVED IN JUSTICE FOR ALL ACTALL ACT DNA PROVISIONS (DEBBIE SMITH, DNA PROVISIONS (DEBBIE SMITH,

BLOODSWORTH)BLOODSWORTH) SECTION 311SECTION 311 NAS GETTING FORENSIC SCIENCE NAS GETTING FORENSIC SCIENCE

GRANTGRANT WILL BE INVOLVED FEDERAL LEVEL WILL BE INVOLVED FEDERAL LEVEL

NO MATTER WHO IS PRESIDENTNO MATTER WHO IS PRESIDENT

Commission Structure: Key Commission Structure: Key FeaturesFeatures

InterdisciplinaryInterdisciplinary Merits atmosphere, cross fertilization, health Merits atmosphere, cross fertilization, health

departmentdepartment Stakeholders representedStakeholders represented

Apolitical atmosphere (Pataki administration)Apolitical atmosphere (Pataki administration) Helpful to get all perspectives, co-operation on Helpful to get all perspectives, co-operation on

policypolicy STAFFED BY DCJS (CAL DOJ equivalent)STAFFED BY DCJS (CAL DOJ equivalent)

DCJS Co-ordinator gets vote but DCJS staffs, DCJS Co-ordinator gets vote but DCJS staffs, provides data, and implements regulations and provides data, and implements regulations and policiespolicies

INDEPENDENCE KEYINDEPENDENCE KEY Subpoena power, penalties for Subpoena power, penalties for

misrepresentationmisrepresentation


FORENSIC CRIME LABORATORY DEFINITION FORENSIC CRIME LABORATORY DEFINITION – BIG MISTAKE!!– BIG MISTAKE!! REGULATION LIMITED TO LAB, NOT POLICE DEPT REGULATION LIMITED TO LAB, NOT POLICE DEPT

FORENSIC WORK OR CRIME SCENE ANALYSISFORENSIC WORK OR CRIME SCENE ANALYSIS NO REGULATION OF LIFTING PRINTS, ONLY LAB PRINT NO REGULATION OF LIFTING PRINTS, ONLY LAB PRINT

EXAMINATIONEXAMINATION NO REGULATION OF POLICE PRINT EXAMINERS IN NO REGULATION OF POLICE PRINT EXAMINERS IN

SMALL DEPARTMENTSSMALL DEPARTMENTS NO REGULATION OF POLICE BALLISTICSNO REGULATION OF POLICE BALLISTICS NO REGULATION OF ARSON CRIME SCENE EXPERTS, NO REGULATION OF ARSON CRIME SCENE EXPERTS,

JUST LAB ANALYSIS OF ARSON EVIDENCEJUST LAB ANALYSIS OF ARSON EVIDENCE ANTICIPATED FINGERPRINT, BALLISTIC, AND ANTICIPATED FINGERPRINT, BALLISTIC, AND

ARSON PROBLEMS BUT POWERLESS TO ARSON PROBLEMS BUT POWERLESS TO MAKE POLICYMAKE POLICY


Power to accredit all NY labs and private Power to accredit all NY labs and private labs doing business in NY, just like NY labs doing business in NY, just like NY Dept. of HealthDept. of Health

MANDATED ALL LABS BE ACCREDITEDMANDATED ALL LABS BE ACCREDITED BEST MOVE WE MADE – CRITICAL POWERBEST MOVE WE MADE – CRITICAL POWER

Mandated accreditation by ASCLAD-LAB and Mandated accreditation by ASCLAD-LAB and Toxicology Examiners as necessary condition Toxicology Examiners as necessary condition for NY accreditationfor NY accreditation

Every lab accredited although sometimes gave Every lab accredited although sometimes gave preliminary accreditation if had not yet met preliminary accreditation if had not yet met ASCLAD requirementsASCLAD requirements


BEST MOVE WE MADE – CRITICAL BEST MOVE WE MADE – CRITICAL POWERPOWER REVIEW ALL ASCLAD-LAB REPORTSREVIEW ALL ASCLAD-LAB REPORTS

GET TO KNOW STRENGTHS AND WEAKNESSES GET TO KNOW STRENGTHS AND WEAKNESSES OF LABS STATEWIDE – CO-ORDINATE POLICYOF LABS STATEWIDE – CO-ORDINATE POLICY

EVEN THOUGH LABS ACCREDITED LOTS OF EVEN THOUGH LABS ACCREDITED LOTS OF ERRORS, AND COMMON PATTERNSERRORS, AND COMMON PATTERNS

HELPED US UNDERSTAND ASCLAD-LAB HELPED US UNDERSTAND ASCLAD-LAB CRITERIA AND SUGGESTED CHANGESCRITERIA AND SUGGESTED CHANGES

ASCLAD-LAB MANDATE THAT LABS THEMSELVES ASCLAD-LAB MANDATE THAT LABS THEMSELVES DISCLOSE SERIOUS ERRORS – MISCONDUCT DISCLOSE SERIOUS ERRORS – MISCONDUCT EXTREMELY IMPORTANTEXTREMELY IMPORTANT


BEST MOVE WE MADE – CRITICAL BEST MOVE WE MADE – CRITICAL POWERPOWER WITHHOLDING NY STATE WITHHOLDING NY STATE

ACCREDITATION FORCED COUNTIES TO ACCREDITATION FORCED COUNTIES TO FUND LABSFUND LABS

ONEDAGA COUNTYONEDAGA COUNTY NASSAU COUNTYNASSAU COUNTY

FORCED NYC CRIME LAB TO DO FORCED NYC CRIME LAB TO DO PRELIMINARY ACCREDITATION TO PRELIMINARY ACCREDITATION TO PROTECT MULTI-MILLION INVESTMENTPROTECT MULTI-MILLION INVESTMENT


BEST MOVE WE MADE – CRITICAL POWERBEST MOVE WE MADE – CRITICAL POWER REVIEW OF ASCLAD-LAB REPORTS CREATED REVIEW OF ASCLAD-LAB REPORTS CREATED

ATMOSPHERE WHERE CRIME LABS ENGAGED ATMOSPHERE WHERE CRIME LABS ENGAGED IN DIRECT DIALOGUE WITH COMMISSION IN DIRECT DIALOGUE WITH COMMISSION ABOUT PROBLEMS AND OPPORTUNTIESABOUT PROBLEMS AND OPPORTUNTIES

DISPUTES AIRED BETWEEN LABSDISPUTES AIRED BETWEEN LABS EX: PRISON SUICIDE CONFLICTING P-30 RESULTSEX: PRISON SUICIDE CONFLICTING P-30 RESULTS

WHISTLE BLOWERS – ANONYMOUS LETTERSWHISTLE BLOWERS – ANONYMOUS LETTERS FORMAL PROTECTION NOWFORMAL PROTECTION NOW


POLICY MAKING POWERSPOLICY MAKING POWERS GOOD MOVES – DNA DATABANKINGGOOD MOVES – DNA DATABANKING

FORCED FIRST SAMPLES BE TAKEN FROM INMATES FORCED FIRST SAMPLES BE TAKEN FROM INMATES ON SUPERVISED RELEASEON SUPERVISED RELEASE

PUSHED FOR KEEPING NEW CASE BACKLOG LOWPUSHED FOR KEEPING NEW CASE BACKLOG LOW COULD BE BETTERCOULD BE BETTER

GOOD MOVES – UNTYPED RAPE KITSGOOD MOVES – UNTYPED RAPE KITS NYC SAFIR – GIULIANI INTIATIVENYC SAFIR – GIULIANI INTIATIVE

BURGLARIESBURGLARIES CAR JACKS & AUTO THEFTCAR JACKS & AUTO THEFT CRIME SCENE UNIT TRAININGCRIME SCENE UNIT TRAINING

PRECURSOR TO DEBBIE SMITH ACTPRECURSOR TO DEBBIE SMITH ACT


MISTAKEMISTAKE FAILURE TO INSTITUTE LIMS SYSTEMS FAILURE TO INSTITUTE LIMS SYSTEMS

EARLIEREARLIER PROFICIENCY TESTSPROFICIENCY TESTS

SECTION 311SECTION 311

REPORTSREPORTS STATE INVESTIGATIONS COMMISSIONSTATE INVESTIGATIONS COMMISSION IGIG

Co-operation and disclosure to DasCo-operation and disclosure to Das Re-examination of old casesRe-examination of old cases

forensic science oversight and policy development: lessons from new york and observations about the...

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