Deputy Attorney General Sally Q. Yates Delivers Remarks During the 68th Annual Scientific Meeting Hosted by the American Academy of Forensic Science
Las Vegas, NV United States ~ Wednesday, February 24, 2016
Remarks as prepared for delivery
Thank you, John [Butler], for that kind introduction, and for your many years of work to advance forensic science. You and Nelson Santos at DEA (the Drug Enforcement Administration) have demonstrated great leadership as the Vice-Chairs of the National Commission on Forensic Science (NCFS), and both Dr. Willie May and I are grateful for your efforts.
Let me also thank Dr. Victor Weedn, Matthew Wood and everyone at the American Academy of Forensic Science for inviting me to speak here today. For nearly 70 years, the academy has brought together scientists, practitioners, academics and attorneys to support and strengthen the field of forensic science. Whether it’s developing best practices or convening conferences like this, the academy plays an invaluable role in promoting the professionalism and integrity of those who practice in this field.
When I started my career as a federal prosecutor in Atlanta 26 years ago, I certainly did not expect that one day I’d be addressing a thousand forensic scientists in a Las Vegas ballroom. But it many ways, it’s fitting. During my two-and-a-half decades with the Justice Department (DOJ), I’ve worked hundreds of cases, ranging from guns and drugs to financial fraud and domestic terrorism. I’ve seen the way that forensic evidence can transform investigations, from the firearms examination performed by a local crime lab to the most complex digital analysis of a suspect’s cell phone or laptop.
Now, as Deputy Attorney General, I’m responsible for day-to-day operations of the Justice Department, which includes not just our nation’s federal prosecutors, but also FBI, DEA, ATF, the U.S. Marshals Service, the National Institute of Justice (NIJ) and a range of other entities. As I’ve seen, the department is more than just a consumer of forensic sciences—we are also a sponsor of cutting-edge research and a model for government agencies at the federal, state and local level.
I’ll be the first to admit, however, that I stand before you as a lawyer, not as a scientist. I may know how to put on an expert witness during a Daubert hearing, but I’d never claim to be an expert myself. Still, there are important similarities between law enforcement and scientific study. Both involve the search for truth in a world of uncertainty. And both reward those willing to ask hard questions of anyone—including themselves—until they are confident they have arrived at the right answer.
One of the first lessons I learned as a young prosecutor is still true today. As prosecutors, our job is not to win convictions, or to obtain the longest sentences possible, but to ensure that justice is done in each and every case. It requires the humility and maturity to recalibrate your approach as new evidence comes in—and to do what you believe is right based on all the information before you.
The same thing is true for forensic scientists. Throughout my career, I have witnessed the thoughtfulness and thoroughness of scientists and analysts across forensic disciplines—following the facts, wherever they may lead.
And that’s why forensic science is so important to those who care about criminal justice. It brings all of us closer to the truth—whether it’s identifying the perpetrator of a crime or clearing the innocent.
But it is precisely because forensic evidence can be so powerful and so persuasive that we must be careful in how and when it is used. The authority afforded to scientific experts is second to none—certainly a lot more than lawyers—and it’s both of our jobs to make sure that those unschooled in forensics understand the strengths and the limitations of the science. We should always qualify what we know with a clear explanation of what we don’t.
I’m happy to say that we’re making real progress in our efforts to strengthen the way forensic science is practiced in our laboratories and presented in our courtrooms. It’s been a little more than two years since the Justice Department entered into a groundbreaking partnership with the National Institute of Standards and Technology (NIST) to support forensic science. This partnership—which brought us both the National Commission on Forensic Science and the Organization of Scientific Area Committees—is generating tangible results.
This past December, for example, the Justice Department responded to one of the commission’s first recommendations, concerning expanded accreditation of forensic laboratories. For the first time in the department’s history, the Attorney General will require that DOJ’s non-digital labs obtain or maintain accreditation, and that, whenever practicable, DOJ prosecutors use accredited labs when testing evidence. In addition, the department will be modifying its grant-funding mechanisms to encourage accreditation at the state and local level, including by giving a “plus factor” to grant applicants who will use the money to seek accreditation. These policy changes demonstrate the Justice Department’s commitment to this issue—not simply by modeling good behavior, but also by supporting those who lack the resources of the federal government. We look forward to acting on additional recommendations from NCFS in the coming months.
These efforts to strengthen forensic science dovetail with work already underway within the Justice Department. As many of you know, DOJ supports the forensic science community through the National Institute of Justice, under the great leadership of Dr. Nancy Rodriguez. Since 2009, NIJ has invested nearly $900 million in forensic sciences, through research grants, training programs and technical assistance. This includes DOJ’s unprecedented effort to process and test thousands of sexual assault kits across the country, helping state and local governments clear their substantial backlogs. Among other things, NIJ has partnered with FBI to test and analyze these kits, free of charge. To date, over 360 DNA profiles have been uploaded to the CODIS (Combined DNA Index System) database, resulting in more than 130 “hits,” or investigative leads, from evidence that had not been previously tested by a forensic lab.
This is just one of NIJ’s many great projects—along with the National Missing and Unidentified Persons System (NamUs), which has helped identify the remains of more than 600 missing persons, and the Postconviction DNA Testing program, which has reviewed more than 50,000 cases and resulted in 26 exonerations. It’s part of the reason why, in September 2015, the National Academy of Sciences concluded that NIJ had made significant progress in advancing research and development to support forensic sciences. We’re proud of these many efforts, and we look forward to supporting similar projects in the future.
Inevitably, there are challenges, too. Over the last few years, the field of forensic science has been subject to scrutiny and, in some cases, criticism. I know how frustrating this can be for the many dedicated men and women who serve in this field—those of you who work hard, day in and day out, in your efforts to advance science and do justice. But that same integrity requires that—like any good scientist or lawyer—we occasionally step back, look at all the facts, and make sure we’re doing everything right.
I truly believe that the Justice Department operates some of the very best forensic laboratories in the world. We strive to set the global standard for excellence, and we are always striving to be better. But like any human institution, there will be times when we don’t reach that goal.
As many of you know, last April, the Justice Department released a statement with the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL) regarding the FBI’s use of microscopic hair comparison analysis prior to the year 2000. Our joint review of lab examiners’ testimony revealed that at least 90 percent of trial transcripts contained erroneous statements relating to forensic hair analysis. We take this matter very seriously, and I want to thank everyone at the FBI, the Innocence Project and NACDL for their unprecedented collaboration as we seek to identify past errors and ensure that justice is done in each case.
It goes without saying that the FBI’s current practices regarding the presentation of hair evidence are different now compared to two or three decades ago. In addition, since the late 1990s, the FBI has conducted mitochondrial DNA hair analysis in addition to microscopic analysis. But these changes do not negate the need for us to think carefully about what we can do better in the future.
And so I’d like to discuss some of the department’s efforts in this area. In the near future, we expect the FBI to solicit bids for an independent review—or “root cause analysis”—to determine what went wrong and why in the hair analysis field. We hope that this review will help us identify potential blind spots in our own practices and develop effective corrective measures.
But it does not take a root cause analysis to draw some initial conclusions about errors arising in the FBI’s pre-2000 hair cases. It’s clear that, in at least some of the cases reviewed, lab examiners and attorneys either overstated the strength of the forensic evidence or failed to properly qualify the limitations of the forensic analysis. This doesn’t necessarily mean that there were problems with the underlying science—it means that the probative value of the scientific evidence wasn’t always properly communicated to juries. And as you all know, it’s crucial we put this type of evidence in its proper context, given that laypeople can misunderstand the science.
To address this problem, the FBI is close to finalizing new internal standards for testimony and reporting—which they’re calling “Approved Scientific Standards for Testimony and Reports,” or ASSTR. These documents, designed for almost all forensic disciplines currently practiced by the FBI, will clearly define what statements are supported by existing science. This will guide our lab examiners when they draft reports and take the witness stand, thereby reducing the risk of testimonial overstatement.
While the FBI is preparing an ASSTR for each discipline, it’s fair to say that the risk of overstatement can vary depending on the discipline. The risk is arguably the lowest in certain types of disciplines, such as those involving chemical analysis. In drug testing, for example, the current technology makes it possible for experts to determine the chemical composition of a controlled substance with a high degree of certainty and with very little human interpretation.
But, as you all know, the degree of certainty may be more difficult to quantify in other forensic disciplines. For example, a relatively small number of disciplines call on forensic professionals to compare two items—such as shoe prints or tire treads—and make judgments about their similarities and differences. These so-called “pattern” or “impression” disciplines present unique challenges, especially when an examiner attempts to assess the likelihood that the two items came from the same source.
In any business, whether it’s medicine or manufacturing, it is standard practice to regularly review your internal procedures to make sure you’re performing at the highest level possible. Our DOJ labs do this all the time, and we plan to do it here, too. The department intends to conduct a quality assurance review of other forensic science disciplines practiced at the FBI—to determine whether the same kind of “testimonial overstatement” we found during our review of microscopic hair evidence could have crept into other disciplines that rely heavily on human interpretation and where the degree of certainty can be difficult to quantify. We’re thinking of it as a forensics “stress test.”
Now, to be clear, we are undertaking this quality assurance review because we think it is good operating procedure—and not because of specific concerns with other disciplines. We believe that this type of review will help ensure the public’s ongoing confidence in the work we do, and put the entire field on stronger footing in the future.
We recognize this is no simple task, and we want to make sure we do this review in a deliberate, thoughtful and transparent way. Therefore, at the next meeting of the National Commission on Forensic Science, scheduled for the third week of March, the Justice Department will present a framework for the review and invite feedback from the broader forensic community. We hope this effort will serve as a model for demonstrating our commitment to strengthening forensic science, now and in the future.
This is an important moment in forensic science. The rise of new technologies presents both tremendous opportunities and potential challenges. At the same time, we must grapple with some of the most basic questions that lie at the intersection of science and the law: how do we make complex scientific principles understandable for judges, attorneys and jurors? How do we accurately communicate to laypeople the many things that forensic science can teach us—ensuring that we neither overstate the strength of our evidence nor understate the value of this information?
There are no easy answers, but the Justice Department is committed to the effort. We benefit greatly from the work of so many others in the field—at NIST, in state and local labs, in research centers across the country and here at the American Academy of Forensic Science. We are grateful for the extraordinary network of professionals who care deeply about addressing these challenges head on. We have much to do, but I’m excited about what we can accomplish together, in our shared pursuit of justice under law and in the service of science.