Thursday, August 10, 2017
Deputy Attorney General Rod Rosenstein Delivers Remarks at the International Association for Identification Annual Conference
Thank you, Governor Deal, for that kind introduction. I am grateful to the International Association for Identification for giving me the opportunity to participate in your Annual Conference.
It is an honor to address such a talented group of forensic examiners. I am excited to share with you what the Department of Justice is doing to advance the reliability of forensic science.
One of the keys to using forensic analysis appropriately is understanding the limitations of the evidence. You need to know what it means, and what it does not mean.
I recently handled a criminal appeal. The evidence showed that the defendant’s telephone had connected with particular cell towers. One of the disputed issues was the testimony of a telecommunications company employee. He testified that the cell tower range was about three miles, and digital records established that the phone had connected with a particular tower. The telecommunications provider routinely relied on these records in the normal course of business. It was hard evidence that required no analysis. A witness with no specialized knowledge could introduce it simply as the custodian of the company’s records.
Knowing what factors influence the range of a tower, on the other hand, requires special expertise. The range generally is imprecise, and therefore the exact location of the phone is difficult to determine from those records.
Given these limitations, we argued only that the records provided direct evidence that the defendant’s phone was in the neighborhood, and circumstantial evidence that the defendant himself was there.
Our case did not rely solely on that evidence. But it was relevant, it was true, and it was properly explained.
I have worked as a prosecutor for 27 years. I understand the critical role that forensic analysis can play in our criminal justice system. I know how forensics can be used to exonerate the innocent and convict the guilty.
Supervising the law enforcement components of the Department of Justice is now one of my responsibilities. This job gives me an even deeper appreciation of the Department’s work in advancing forensic science.
At the Department of Justice, we practice forensic science through our crime labs and digital analysis centers. We fund forensic science through grant programs at the Office of Justice Programs and elsewhere. And we are clients of forensic science in tens of thousands of cases we investigate every year. Given the Department’s deep reliance on forensic science to carry out our mission, we strive to set the standard for excellence.
The Attorney General has made it the Department’s top priority to reduce violent crime and improve public safety. The effective and proper use of forensic science advances that goal.
I am inspired by the outstanding work of the forensic examiners I’ve met, by the expertise they bring to the job, and by their dedication to justice.
FBI forensic examiners recently undertook an initiative to reexamine old fingerprint evidence. They used the FBI’s Next Generation Identification System to generate leads, identify missing persons, and solve crimes.
In 1992, Los Angeles experienced one of the deadliest riots in U.S. history. More than 50 people lost their lives. One of the victims was “John Doe No. 80.” His body was found in a store that had been set on fire. He was so badly burned that investigators were left with only a few clues as to his identity: Some teeth and a partial print from his left middle finger.
For nearly 25 years, John Doe No. 80 remained unidentified. But then an FBI latent print examiner had an innovative idea: use the FBI’s new NextGen technology to run the fingerprints of unidentified individuals. It relies on a sophisticated algorithm that increases the accuracy and the likelihood of an identification. Even where the FBI had already run someone’s fingerprints, the FBI Latent Print Unit believed this new technology could produce new leads. They were right.
After 25 years, John Doe No. 80 finally has a name. Thanks to hard work and ingenuity, we know that John Doe No. 80 is Armando Ortiz Hernandez.
The success story does not stop with the identification of one individual. The FBI Latent Print Unit partnered with a program funded by the National Institute of Justice. The National Missing and Unidentified Persons System stores information about thousands of deceased, missing, and unidentified individuals. The staff of the FBI Latent Print Unit worked to run the prints of approximately 1,500 unidentified people.
As a result of that hard work, the FBI identified 195 deceased individuals, including 55 suspected homicide victims. One of them was a Virginia native named Andrea Kuiper. Andrea disappeared 27 years ago. Through the new program, the FBI identified her as a woman who was killed in a car accident in California in 1990. After almost three decades, Andrea’s family finally knows what happened to her. Hundreds of other families were also able to experience closure, because of the FBI’s impressive latent print examiners.
Armando’s story and Andrea’s story are just the beginning. You are developing new ways to use technology to advance forensic science, and benefit the criminal justice system.
Last year, FBI lab personnel worked with database experts at the FBI’s Criminal Justice Information Services to re-examine 42,000 prints from unsolved crimes, including bank robberies, arson, and violent crimes. The prints had been examined previously, but FBI examiners thought that they may be able to generate additional identifications with the improved Next Gen system.
Running that many fingerprints required the FBI to develop a new interface to search large quantities of prints. And it paid off. The FBI generated leads about more than one thousand suspects in unsolved crimes.
Now, the FBI is working to make the bulk searching interface available to all law enforcement agencies nationwide. With this new technology in the hands of our law enforcement partners, many open cases can now be solved. Criminals will be brought to justice. Future crimes will be prevented. People will not become victims.
None of this would be possible without forensic analysis. Without the creativity and hard work of professionals like many of you, there would be thousands more unsolved cases. And thousands more victims waiting for justice.
Dedication to finding the truth is the mission of our criminal justice system. That is why it troubles me when people unfairly question the integrity of fingerprint examiners, and other legitimate forensic experts.
The practice of forensic science relies on human interpretation of scientific tests and examinations. This is not new. Almost every applied science relies on human interpretation. That includes medicine, computer science, and engineering. A doctor who testifies about the cause of a victim’s death bases that judgment on expert analysis. The same is true of forensic psychologists, entomologists, anthropologists, fire investigators, accident reconstruction experts, and a host of other trusted forensic disciplines. They use their scientific knowledge and training to analyze particular facts and data, apply judgment, and come to a reasoned conclusion. Those disciplines have been around for a long time. When subjected to informed cross examination, expert testimony can be tremendously probative and helpful to the jury.
Nevertheless, some critics have sought to limit the forensic evidence and testimony that can be presented in court. These critics suggest that unless a forensic discipline has a “known error rate,” evidence derived from that discipline should not be admitted in court. Under that standard, trusted and reliable forensic evidence would be excluded simply because the discipline is not susceptible to an easy-to-calculate error rate.
The folly of that approach is clear when critics question fingerprint analysis. They admit that it usually works. Their objection is that it requires judgment.
Those attacks are based on a mistaken view of the role of expert witnesses in the justice system. The bedrock principle of evidence law is that relevant evidence is generally admissible. Evidence is relevant if it tends to make a material fact more or less probable than it would be without the evidence. It is not necessary for the evidence to be indisputable.
For example, a shoeprint with irregular edges and unique wear on the outsole found at the scene of a burglary is likely relevant and admissible. Both the prosecution and the defense can use the evidence to help the jury decide whether to believe a defendant was at the scene of the crime.
Physical evidence may be more helpful to a jury if an expert can explain the evidence and place it in context. The jury may benefit from expert testimony in interpreting how probative the shoe print is. Is it the same size as the defendant’s foot? Does it match a shoe found in the defendant’s closet? Answers to those questions may determine whether the physical evidence is incriminating or exculpatory. If the testimony were excluded, the search for truth would be impeded. The jury would have no assistance in determining what to conclude about the discovery of the shoeprint.
Forensic evidence can be extremely important. But we also need to recognize that it can be abused and misused, as is true of every discipline. There have been instances in which people have operated in bad faith, masquerading as reliable experts when they lacked sufficient knowledge or failed to perform appropriate tests. In other instances, people have testified in good faith but used language that may have suggested more confidence than was warranted.
When the judicial system functions as intended, justice is advanced. Our adversarial system is based on the principle that the truth is most likely to emerge when opposing parties have the opportunity to cross-examine each other’s witnesses, and each party is able to call its own witnesses and introduce conflicting evidence.
Our criminal justice system provides important procedural protections for defendants. For example, a federal defendant is entitled to a written summary of the testimony of the government’s forensic expert. That allows the defendant to know in advance what the government’s expert plans to say, and to rebut it with his own expert testimony. The defendant also has the right to examine and challenge the results of any scientific test.
The search for truth benefits from those protections. But most of all, the quest for truth benefits from prepared legal practitioners and trained forensic examiners. When courts exclude useful evidence, it undermines the cause of justice.
The Department of Justice has undertaken unprecedented efforts to examine and strengthen the reliability of forensic science and its use in the courtroom. We are committed to improving forensic science.
With that goal in mind, the National Institute of Justice has provided $125 million over the past 6 years for grants dedicated to research and innovation. It will provide millions more this upcoming fiscal year as we continue to support the forensic community. We hope that this money will lead to the development of accurate, reliable, cost-effective, and rapid methods for the identification, analysis, and interpretation of physical evidence. Federal funding has been key to earlier advances in forensic science, such as the Ames black box study of ballistics.
Many state and local labs rely on funding from the Department through our grant programs. We are dedicated to ensuring our partners are able to access grant funds to conduct high quality, reliable, and probative forensic examinations.
The Department is also committed to ensuring that our own forensic experts testify only in ways that are supported by available research. Justice is not advanced if an expert exaggerates in describing the significance of the evidence.
To achieve that goal, I am announcing today the creation of a new Forensic Science Working Group. The first order of business will be to resume work on the Uniform Language for Testimony and Reports.
The Uniform Language project started in 2016. It was paused earlier this year. After discussions with Department components, I concluded that the project will help in setting the bounds of what examiners should say in court. Prosecutors and forensic examiners at the federal, state, and local level support the project. Accordingly, I have instructed the Working Group to finalize the Uniform Language program so we can implement it in the near future. We will rely on input from outside stakeholders, including defense attorneys, academic scientists, and statisticians, as well as forensic science practitioners.
Our efforts will not end with implementation of the Uniform Language program. I am also directing the Working Group to establish a process to continually monitor the accuracy of courtroom testimony by federal expert witnesses. The FBI already implemented a monitoring program to help ensure that its experts testify accurately about the results of their forensic examinations. A new Department-wide monitoring program will ensure that all examiners give testimony consistent with scientific principles.
The working group will be directed by our new Senior Advisor on Forensics. I am pleased to announce that the Attorney General has appointed Ted Hunt as Senior Advisor. Ted is a teaching faculty member for a number of organizations that train legal practitioners, law enforcement, and laboratory analysts. He was previously a supervisory prosecutor in Kansas City, Missouri. Ted is also a member of several forensic science commissions and organizations.
Some of you know Ted from his service on the National Commission of Forensic Science. Appointing Ted to serve in this new position demonstrates the Attorney General’s commitment to improving forensic science.
Ted will coordinate closely with federal, state, local, and tribal forensic science practitioners and identify ways to conduct ongoing outreach to those stakeholders.
We are taking other steps to improve forensic science. In April, we announced a “Needs Assessment of Forensic Laboratories.” We plan to examine workload, backlog, personnel and equipment needs of public crime laboratories, and the education and training needs of forensic science practitioners.
As part of the needs assessment, we will first collect and review existing data sources. We already started reviewing materials to assess what data and information exist, and to identify what else we need to collect. The next phase of implementation is outreach to forensic science practitioners. We welcome input from the forensic science practitioner community about where additional resources are needed.
We plan to establish a needs assessment steering committee of crime lab directors. We expect to convene the steering committee this fall and conduct listening sessions with the committee and other forensic science stakeholders. The listening sessions will explore forensic needs and ideas to increase efficiency.
The Department also will conduct an internal needs assessment. The needs assessment is an opportunity for us to develop comprehensive strategies about how best to improve the quality, reliability, and efficiency of forensic science processes.
I encourage you to participate in this process of data collection to advance our shared mission of using forensic science to improve public safety.
In April, the Department published an Issue for Comment in the Federal Register seeking broad stakeholder input about how the Department can best support the advancement of forensic science. That Notice closed on June 9. We received more than 250 comments, including one from International Association for Identification. We will use those comments to help develop a path forward.
Thanks to the diligent work of federal, state, and local leaders, there has been meaningful progress in advancing forensic science and employing it in the legal system.
We must use forensic analysis carefully. But we must continue to use it. We should not exclude reliable forensic analysis—or any reliable expert testimony—simply because it is based on human judgment.
Has anyone seen the movie My Cousin Vinny? In the film, a young woman takes the witness stand and surprises everyone by demonstrating her expertise about automobiles. It does not necessarily take a Ph.D. scientist to be an expert witness and to provide information that will be helpful to a jury. And it certainly does not require proof of a known error rate. Many factors may influence the weight of the evidence – how much the jury should rely on it – but we could rely on juries to make those decisions as long as the witness is competent and responsible, and the judge gives appropriate instructions about how to evaluate the testimony.
We face many law enforcement challenges – new challenges spawned by the internet and modern technology, old challenges like combatting violent gangs, and evolving challenges such as the unprecedented surge in drug overdose deaths from synthetic chemicals. The President has tasked the Department of Justice to address those challenges. The Attorney General strongly believes that forensic analysis can help us find solutions.
Our uniform language initiative, and continuous monitoring program, will provide assurance that forensic analysis is used correctly. That will advance the search for truth in federal courtrooms.
In closing, I want to thank you all for your commitment to responsible forensic analysis. I look forward to working collaboratively with you to ensure that reliable forensic evidence is available for use in court by all parties.
The truth is out there. Working together, we will help judges and juries find it. And make America safer in the process.