Ninth Annual Prescription for Criminal Justice Forensics Program Department of Justice Forensic Science Projects to Support the Adversarial Process Kira Antell, Senior Counsel Office of Legal Policy U.S. Department of Justice

Priorities on Forensic Science Improving the reliability of forensic analysis to enable examiners to report results with increased specificity and certainty Facilitating coordination and collaboration on forensic science within the Department, across the federal government, and with state, local, and tribal entities Increasing the capacity and efficiency of forensic service providers so that evidence can be processed quickly and investigations can be concluded without delay

Forensic Science Projects Quality Assurance Designed to be implemented by Department forensic laboratories and digital analysis entities Intended to improve the practice of forensic science and reporting of results Prosecutor Practices Support the use of forensic science in the adversarial process

Goals of Forensic Science Projects Ensure that examiner analysis is based on sound scientific principles Contribute to the scientific principle of transparency Educate legal practitioners as to the limits of forensic analysis Support the appropriate use of forensic science in legal proceedings

Forensic Science Projects Research Projects Reasonable Degree of Scientific Certainty Uniform Language for Testimony and Reports Testimony Monitoring Posting of Quality Management System Documents Criminal Discovery Involving Forensic Evidence and Experts

I. Research Projects

Research Projects The Department, through the National Institute of Justice (NIJ) supports hundreds of forensic science research projects Funding opportunities are focused on meeting the needs identified by forensic science practitioners – particularly as identified by the Organization of Scientific Area Committees FBI is conducting decision-threshold studies in several pattern disciplines Studies are being developed through external entities to ensure they are double-blind Anticipated to assist in reporting results with increased specificity and certainty

II. Reasonable Degree of Scientific Certainty

Reasonable Degree of Scientific Certainty Forensic examiners have long explained that the legal phrase “reasonable degree of scientific certainty” doesn’t have a scientific meaning and can be misleading to a finder of fact Since September 2016, Department examiners and Department prosecutors have been prohibited from using the phrase or similar words (unless required to do so by a court or applicable law)

III. Uniform Language for Testimony and Reports (ULTR)

ULTRs Deputy Attorney General Rosenstein announced at the International Association for Identification annual meeting in August 2017 that the Department would develop ULTRs Department-wide; Created for all disciplines; Available publicly; Assist in training examiners and prosecutors

ULTRs ULTRs set prospective standards for use in testimony Terminology is consensus-based, scientifically sound, and technically justified; Appropriately qualified and limited in scope; Probative value of forensic findings is correctly stated and are not exaggerated; Conclusions are not overstated These documents also include qualifications and limitations for what should not be stated in reports and testimony

IV. Testimony Monitoring

Testimony Monitoring Deputy Attorney General Rosenstein announced at the International Association for Identification annual meeting in August 2017 that the Department would institute a testimony monitoring program Testimony Monitoring is a Department-wide program to review more examiner testimony in a timely fashion (effective June 18, 2018) Currently, few instances of examiner testimony are regularly reviewed (accreditation standards vary but do not require review of most testimonies)

Testimony Monitoring Ensures that examiners’ testimony is: Consistent with mandatory laboratory policies and procedures; Properly qualified and appropriately communicated; Does not exceed the scientific limitations of the method or discipline utilized; and In conformity with any applicable ULTR

V. Posting of Quality Management System Documents

Quality Management System (QMS) The Department started posting QMS online in March 2018 Includes quality assurance measures, laboratory policies, and standard operating procedures for testing and analysis Summaries of internal validation studies for forensic methods and techniques that are currently used by Department labs

QMS Posting Promotes the scientific value of transparency Improves the efficiencies of the Department’s discovery and disclosure obligations Shares high quality policies and procedures with other labs Enhances knowledge of Department forensic policies and practices by public (academics, lawyers, judges)

QMS Postings

VI. Criminal Discovery Involving Forensic Evidence and Experts

Criminal Discovery Involving Forensic Evidence and Experts In January 2017, the Department adopted the Supplemental Guidance for Prosecutors Regarding Criminal Discovery Involving Forensic Evidence and Experts The guidance assists prosecutors in providing all discovery to which defense counsel are entitled The guidance has been incorporated into the U.S. Attorneys Manual (USAM) at section 9-5.003

Criminal Discovery Involving Forensic Evidence and Experts USAM 9-5.003 describes the four steps that prosecutors should take to meet their disclosure obligations for forensic evidence under the federal rules, Supreme Court precedent, and statutory obligations: Obtain the forensic expert’s laboratory report; If requested, disclose a written summary for any forensic expert; If requested, provide the defense with a copy of, or access to, the laboratory or forensic expert’s “case file”; Provide information on the expert’s qualifications

Criminal Discovery Involving Forensic Evidence and Experts Based on the information provided in discovery for forensics, defense counsel can decide whether to seek Daubert hearings, consider pursuing their own expert witnesses, and better prepare their defense in general. This year all 6,000+ federal prosecutors received mandatory training on USAM 9-5.003

Next steps

Contact Information Kira Antell Senior Counsel Office of Legal Policy U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530 202-616-9987 kira.m.antell@usdoj.gov