Earlier this week the Department of Justice issued a notice in the Federal Register asking the public to submit proposals to:
(1) Improve the underlying science and validity of forensic evidence; (2) improve the operational management systems of forensic science service providers; and (3) improve the understanding of forensic science by legal practitioners.
Notice of Public Comment Period on Advancing Forensic Science, 82 Fed. Reg. § 17879 (April 13, 2017).
The notice explains that public comment is necessary now because the 2-year charter for National Commission on Forensic Science (NCFS), which is a Federal Advisory Committee like the military justice system’s Judicial Proceedings Panel (CAAFlog page), is about to expire. The Department specified: “Proposals may include some combination of a Federal Advisory Committee, a new office at the Department, an inter-agency working group, regularly scheduled stakeholder meetings, etc.” Id. at § 17880.
Media response to the DOJ’s notice has been inaccurate and, at times, shrill. The Washington Post, reading an advance copy of the Notice, interpreted that the Attorney General had already decided not to renew the NCFS. Meanwhile, in a feature article, Rolling Stone lamented, “Jeff Sessions is Keeping Junk Science in America’s Courts” and “Trump’s attorney general is a threat to the rule of law he’s tasked with upholding[.]”
A more sober analysis reveals, as the Federal Register notice states:
The NCFS is [only] one of several federal initiatives relating to forensic science that was created following the 2009 report by the National Academy of Sciences National Research Council on ‘‘Strengthening Forensic Science in the United States: A Path Forward.”
82 Fed. Reg. § 17880.
Earlier this month, in an article entitled Forensic Science standards beginning to take form, this column discussed the recent work of one of those other Federal initiatives – the Organization of Scientific Area Communities (OSAC). Readers will remember that OSAC falls under the National Institutes of Standards and Technology (NIST), which is itself an agency under the Department of Commerce. NIST was tasked to meet Congress’ desire that “a new agency, separate from the legal and law enforcement communities, be created to provide oversight to correct these inconsistencies which impact the accuracy, reliability, and validity of forensic evidence.” OSAC is the result of that Congressional mandate.
To that end, as was discussed in this column’s earlier article, an OSAC committee recently issued an opinion establishing that a forensic scientist does not have to adopt the conventions of the legal forum he or she serves. Accordingly, when working on a criminal matter, the analyst does not have to presume innocence and does not have to use a beyond a reasonable doubt standard of proof for their conclusions.
OSAC’s entry into the forensic science fray might have prompted the DOJ to wonder whether the NCFS constitutes one too many cooks in the kitchen. Indeed, an argument could be made that Congress tasked NIST to fix forensic science because it didn’t want that work to be done by DOJ. In any case, the Federal Register notice does not indicate that the DOJ has lost interest in shaping the development of forensic science. To the contrary, the notice asks commentators to have their submissions address:
(A) What are the biggest needs in forensic science inside the Department and at the federal, state, local, and tribal level?
(B) What is required to improve forensic science practices at the federal, state, local, and tribal levels?
(C) What is needed to improve capacity at federal, state, local, and tribal levels?
(D) What are the barriers to improving capacity and what resources are needed to overcome those barriers?
(E) What are the specific issues related to digital forensic evidence analysis and how can the Department address those needs?
(F) How should the Department, or any Department entity, coordinate with the Organization of Scientific Area Committees?
(G) What resources and relationships can the Department draw on to ensure thoughtful and representative input?
Id. at § 17880.
There are many readers of this blog who might have valuable insights on those questions. Comments can be submitted before June 9, 2017 at www.regulations.gov.