Wednesday, March 28, 2012

The fundamental role of states in crime lab regulation

Apropos of recent Grits discussions of crime lab accreditation and oversight, reader Ryan Goldstein alerts me to his student note in the Texas Law Review titled "Improving Forensic Science Through State Oversight" (pdf).

Goldstein says forensic science faces two core problems: "questionable validity and questionable reliability." The "questionable validity" speaks to fundamental concerns whether the scientific basis underlying many forensic practices is truly sound: E.g., whether tool marks, ballistic matches or tire track comparisons should be considered dispositive identification in criminal courtrooms? Goldstein's suggestions for a state-centered regulatory structure do not speak to "validity" questions, and IMO it probably is a federal role to fund the sort of research needed to move that ball forward in the way that science, for example, has improved eyewitness ID techniques and arson investigations over the last two decades.

On questions of "reliability," though, where the underlying science is valid, Goldstein rightly calls state regulation of crime labs "an ignored resource." States inherently have a role regulating forensic science because forensic evidence is most often used in state courts. So in each state, either the legislature does the regulating, it hands off regulation authority to some executive-branch entity, or else the courts must do it themselves on an ad hoc basis. But somebody at the state level must do it, and Goldstein points out that states are "well positioned to implement reforms ... that target reliability." He argues that:
The NAS Report charged the federal government with implementing its recommendations. But, as mentioned above, this ignores the direct control that states have over their laboratories and criminal justice systems. Furthermore, federal reform requires uniformity and ignores the benefits of state experimentation. It ignores geographic differences in values and the differences in the ways that states administer their systems of criminal justice and criminal investigation. Finally, with the current political climate in Washington, federal reform may be difficult to pass. And even if it were to pass, it may reflect a compromise between differing interests rather than the most robust oversight possible.
Goldstein thinks mandatory accreditation is insufficient (as do I) in part because "accreditation only addresses issues of compliance with existing scientific practices. It does not address the validity of the underlying science, identify cases of technician negligence or fraud, remedy past injustices, or necessarily advocate for the best possible laboratory practices." For those issues, he said, states have turned either to independent investigations in high-profile cases, a tactic made more attractive by the availability of federal funds for the purpose in recent years, or else some type of oversight board or independent investigative body like Texas' Forensic Science Commission or the North Carolina's Innocence Commission. Each has pros and cons, but these are all examples of state-level experimentation through which we're learning important overall lessons about what crime lab regulation should look like, argues Goldstein.

Prof. Paul Gianneli has a response (pdf) to this piece in the same issue of the Texas Law Review pointing out the need for federal support on improving forensic "validity" while agreeing that "The states are indeed responsible for their crimes laboratories, and it is a responsibility that they have often neglected." Meanwhile. CrimProf blog points to another response (pdf) by Jessica Gabel and Ashley Champion arguing that centralized federal oversight would be more "practical." Gianelli, though, notes the federal and state approaches are not mutually exclusive: "The proposed federal legislation ... would not preempt state innovation; it would fund accreditation, not require it. This funding, however, may never materialize, and the states (as Mr. Goldstein notes) are independently obligated to regulate their crime labs."

On one, key point, I wholeheartedly, vociferously disagree with Mr. Goldstein when he writes that "the NAS Report‘s call for the removal of laboratories from law enforcement is infeasible and unlikely to receive political support." That's a political assessment, not a data-driven one, and in my experience it's deeply flawed. The political class generally gets why it's a conflict for police to control crime labs, they just don't have a great set of options available to them or, at the moment, extra resources. But politicians in Houston, e.g., which is the central example in Goldstein's essay, mostly pay lip service to the idea of removing the crime lab out from under law enforcement, though the devil is of course in the details. Still, I've neither seen nor heard of opposition in the political sphere so intense that it makes me think the goal of separating crime lab management from law enforcement is categorically impossible. Certainly, can't never could.

That said, in all, this student note was a worthy contribution, locating the cutting edge of a debate that's presently very much a moving target. This post portrayed just a fraction of what's in these three pieces, so those with more than a passing interest in such matters should read them for yourselves.


Anonymous said...

It's not surprising that law enforcement hasn't expressed any opposition to independent crime labs. Believe it or not, most law enforcement agencies/officers are not in the business of trying to influence forensic scientists in their findings. Instead, all they want is for the forensic analysis to be done quickly, at little or no cost to the agency, and correctly. It really does no good to try to "cook" the results. If there are errors, eventually that information will come out.

Regardless of whether the labs operate under the umbrella of law enforcement or independently, law enforcement agencies will continue to be the principal customers for forsensic testing. The labs will continue to need appropriate funding and staffing to do good work. If it will make the pro-criminal crowd feel all warm and fuzzy to have independent labs, then have at it. My guess is that at the end of the day, the quality of the work and the results of the testing will remain pretty much the same if you look at the stats and the data.

Anonymous said...

Anon 12:28 like to throw the "pro-criminal" lable at those with whom he disagrees. I suppose he thinks that somehow makes him superior. But, it actually just shows his ignorance and narrowmindedness. After all, its really just a matter of perspective. For example, you could just as easily lable the people that he attacks as pro-constitution, pro-fairness, pro-credibility in the criminal justice system, etc. Or, you could lable 12:28 as pro-government and those he attacks as pro-people. In the end there all just lables and using them may make 12:28 feel superior but really accomplishes nothing other than demonstrating his ignorance and narrow-mindedness. If a person has to resort to name calling, it just shows his argument is deficient in some way.

Anonymous said...

Not really, 12:40. One just gets the very distinct impression from reading many comments on Grits' blog that they are from criminals (probationers, ex-cons, sex offenders, etc.) or their supporters. They are usually being very critical of law enforcment, prosecution or the correctional system and support just about any measure which would weaken or hinder the ability of the state to bring guilty criminals to justice. They typically ignore the fact that crimes really do occur and the victims really do exist. Whether you call them pro-criminal, anti-law enforcement or bleeding heart liberals, it really doesn't matter nor does it make anyone feel superior. It just is what it is.

Gritsforbreakfast said...

There has been opposition, for sure to taking control of crime labs from PDs - generally from whatever PD would lose turf - but usually as in Houston, independence is suggested after some scandal that put the agency on their heels and makes their opposition relatively weak, with few institutional allies.

And 12:28, the recommendation to make labs independent comes from the National Academy of Sciences - do you think their agenda is "pro-criminal" or "pro-accuracy"? Warm and fuzzy has nothing to do with it.

As for your addendum at 12:55, name calling while hiding behind anonymity "is what it is": A punk move by a coward. If you're going to engage in such poor behavior in public, own it and put your name own it.