October 26, 2020 Feature

A Path Forward: The Value of Forensic Science Standards Development and Use to the American Legal System

Matthew F. Redle and The Honorable Christopher J. Plourd

The Organization of Scientific Area Committees (OSAC) for Forensic Science can trace its origins back to the 2009 report of the National Academy of Sciences Strengthening Forensic Science in the United States: A Path Forward [hereinafter Strengthening Forensic Science]. The National Academy of Sciences (NAS or Academy) is a private, nonprofit organization. In 1863, the U.S. Congress granted its charter. That charter mandates that the Academy advise the federal government on matters of science and technical issues. The Academy describes itself as “a self-perpetuating society of distinguished scholars engaged in scientific and engineering research” and “dedicated to the furtherance of science and technology.”

In November 2005, Congress enacted the Science, State, Justice, Commerce, and Related Agencies Appropriations Act of 2006. Under the terms of the Act, Congress authorized “the National Academy of Sciences to conduct a study on forensic science. . . .” A report accompanying the Act charged the Academy with, among others, the tasks of “assess(ing) the present and future resource needs of the forensic science community,” including crime laboratories and death investigators; making recommendations to maximize “technologies and techniques” to solve crime and aid death investigation and public safety; “identify potential scientific advances” for those same purposes; and perhaps most germane for our purposes, “disseminate best practices and guidelines concerning the collection and analysis of forensic evidence to help ensure quality and consistency” in its use.

Congressional interest in forensic science did not arise in a vacuum. “Forensic fraud,” as it became known, made its way into the news, reporting on the fraud or incompetence of practitioners like Fred Zain in West Virginia and Texas. Zain had lied about his educational credentials and failed a competency test administered by the FBI. Zain was also accused of “dry-labbing,” a practice in which testing may or may not have occurred and a favorable report written nevertheless. Joyce Gilchrist of Oklahoma and Arnold Melnikoff in the states of Washington and Montana also gained notoriety for playing “fast and loose” with scientific rigor in the crime laboratory.

Around the same time, the evidentiary reliability of forms of forensic analysis were being called into question as a result of challenges to the scientific validity of methods like comparative bullet lead analysis and microscopic hair comparisons. Bullet lead comparison had been performed somewhat regularly by laboratories from at least the early 1980s. In 2004 the FBI requested that the National Academy review the scientific merit of that methodology. The report by the Academy concluded that the elements used for testing were likely adequate for purposes of determining correlation and the chemical method of analysis used was probably sufficient. Significant questions nevertheless existed with respect to the statistical statements of conclusions reached by experts and the subsequent re-interpretation of those statements by prosecutors. Following review of the report by the FBI, the Bureau ceased its further use. Similarly, questions arose regarding the strength of an expert’s stated conclusions in cases where the methodology at issue was microscopic hair comparison. Its use was reined in significantly when conclusions reached by hair examiners were tested against mitochondrial DNA tests of the same hair specimens.

The reports that accompanied the 2006 Appropriations Act, not unsurprisingly, drew a comparison between DNA technology and its scientific pedigree on the one hand and an unspecified number of disciplines and methods on the other. “While a great deal of analysis exists of the requirements in the discipline of DNA, there exists little to no analysis of the remaining needs of the community outside of the area of DNA.” Congress recognized the need to bring greater scientific rigor to the field of forensic science. The 2006 Act called on the National Academy of Sciences to provide a blueprint for doing so, and the Academy was happy to accommodate that request, especially when it came to the question of greater standardization within the field.

The Report of the National Academy of Sciences

The Academy, in its final report in 2009, recognized the value of standards, but to be meaningful, standards must advance the enterprise of crime detection and preserve public safety by simultaneously providing the means for protecting the innocent and preserving the evidence of their innocence. The report, Strengthening Forensic Science in the United States: A Path Forward, recognized the due process needs of the criminal justice system. Science and due process required that evidence of a crime, once detected, be effectively collected, stored, and preserved. The evidentiary value of the evidence ideally should be maintained for appropriate testing by a qualified laboratory to assist the prosecution in making correctly informed judgments along the way.

Evidence should be preserved after testing by the prosecution because testing may also be needed by the defense in order to challenge the state’s theory of the case or to advance its own. The National Academy report recognized these needs and that standardized protocols would best serve these separate interests. However, But of equal importance, the Academy report pointed out that evidence of recent advances in testing, such as by DNA techniques, also made it possible to jump-start stalled investigations and identify the previously unknown perpetrator.

The Academy was a reminder that the errors of the past that had been discovered through advances in science and were the product of faulty analysis suggested a need for more robust testing methods. These cases also pointed out the danger of allowing exposure to biasing factors to improperly influence decision-making in the analysis of the evidence in the laboratory. In the same way, exaggerated testimony might improperly skew decision-making in the courtroom. As the Academy said in this regard, “best practices and guidelines concerning the collection and analysis of forensic evidence to help ensure quality and consistency in the use of forensic technologies and techniques” should be disseminated. Strengthening Forensic Science, supra, at 2.

Fragmentation Within Forensic Science

One theme that the National Academy report returned to time and again, was what the authors of the report referred to as the fragmented nature of forensic science in the United States. By that they meant that in the field of forensic science, at least as practiced in the United States,

operational principles and procedures for many forensic science disciplines are not standardized or embraced, either between or within jurisdictions. There is no uniformity. . . . Often there are no standard protocols governing forensic practice in a given discipline. And, even when protocols are in place they often are vague and not enforced in any meaningful way. In short, the quality of forensic practice in most disciplines varies greatly because of the absence of adequate training and continuing education, rigorous mandatory certification and accreditation programs, adherence to robust performance standards, and effective oversight.

Id. at 6. The ongoing efforts of the OSAC represents a giant leap forward in correcting this “oversight” and bringing the field into greater harmony.

The Academy report recognized that interpretation of evidence was not always based upon scientific studies for validity. Here, the Academy’s report continued its effort to remove the fragmentation that it argued existed in forensic science as a scientific discipline. Next, they attempted to unite forensic science within a space in the law reserved for science and technology.

In 1993, in Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court ruled that, under Rule 702 of the Federal Rules of Evidence . . . a “trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” The Court indicated that the subject of an expert’s testimony should be scientific knowledge, so that “evidentiary reliability will be based upon scientific validity.” The Court also emphasized that, in considering the admissibility of evidence, a trial judge should focus “solely” on the expert’s “principles and methodology,” and “not on the conclusions that they generate.” In sum, Daubert’s requirement that an expert’s testimony pertain to “scientific knowledge” established a standard of “evidentiary reliability.”

Id. at 9–10. Strengthening Forensic Science made 12 recommendations for addressing the problems that were evident in forensic science. In actuality, there were many more recommendations than the 12 the authors chose for the purpose of organization. The proposals contained in the report could be reorganized any number of ways. But if you look at the recommendations from a functional point of view, the attack on the fragmentation of forensic science through standardization, use of best practices, protocols, etc. are raised in various contexts in more than half of the recommendations. This is the task that OSAC is presently pursuing. The standards development process is uniting all of those interested parties be they scientists, lawyers, or others, all of those with expertise, to unite behind a common scientific model to achieve a common goal of enhancing the quality of justice in this country. In this way, the Academy has truly realized its path forward by consolidation of what was and what remains of fragmentation.

The Mystery of Science in America’s Courts

As noted by the NAS report, occasionally American courts have been proven wrong when they face the impenetrable problem of when to admit or exclude new or novel scientific evidence. This dilemma reflects the reality of the scientific illiteracy of lawyers and judges, which renders them unable on their own to decide the admissibility of evidence proffered through expert witnesses correctly. Supreme Court Chief Justice William Rehnquist perhaps most poignantly, though undoubtedly unintentionally, wrote in his opinion in the Daubert opinion:

I defer to no one in my confidence in federal judges; but I am at a loss to know what is meant when it is said that the scientific status of a theory depends upon its “falsifiability,” and I suspect some of them will be, too.

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 600 (1993) (Rehnquist, C.J., concurring in part & dissenting in part). Part of our judicial legacy is that new scientific techniques were developed and put into immediate use in crime laboratories, and then brought into court, but little or no independent forensic scientific research was conducted.

One infamous example of this was the once widely accepted use of a diphenylamine (paraffin) test for nitrate gunshot residue on a suspect’s hand, admitted by a Pennsylvania court in 1936 as scientific evidence. The defendant had an alibi that he was nowhere near the scene of the crime at the time of the victim’s death by multiple gunshots to the head. There were no eyewitnesses to the killing. Three hours after the killing, a paraffin glove was made of the defendant’s right hand and at the same time control tests were done. An examination of the defendant’s paraffin glove revealed black specks, mostly on the index finger and some on the back of the hand. Two forensic experts testified that upon the application of a reagent (diphenylamine) to the defendant’s paraffin glove, the black specks turned a dark blue color and that this chemical reaction demonstrated the presence of gunpowder residues. The experts further informed the jury that this paraffin testing procedure was well known to the profession for over 50 years. The Supreme Court of Pennsylvania upheld as scientific expert testimony the results of the nitrate paraffin test, observing that the unexplained presence of specks of partially burned gunpowder on the defendant’s right hand a few hours after the shooting, as chemists found and testified, was significant. Commonwealth v. Westwood, 324 Pa. 289, 188 Atl. 304 (1936). A precedent was set by the Pennsylvania court, and many state courts thereafter accepted the paraffin nitrate test, like the Pennsylvania court, without questioning the science. For the next two decades, there were numerous convictions based on the paraffin nitrate test, including some where the defendant was sentenced to death, before multiple scientific studies conclusively demonstrated that many residues of compounds totally unrelated to gunshot residue (tobacco, tobacco ash, fingernail polish, fertilizer, many varieties of pharmaceuticals, foods, etc.) gave identical positive test results on someone’s hand. The erroneous admission of the paraffin test in not an isolated example of a systematic error in admitting scientific evidence. One is forced to ask whether our courts are able to take a more critical attitude to the validity and admissibility of forensic tests. Courts can look to scientific standards and lessen if not eliminate incorrect admissibility decisions.

Over the past 20 years, the reinvestigation of cases by innocence projects has evolved as the result of deficiencies uncovered after court case convictions were overturned by DNA evidence. With improved technology and increasing awareness, previously untested assumptions by forensic scientists are being replaced by a concerted effort to build a solid scientific foundation and standard protocols. There is now a better understanding by forensic scientists of the inherent variability and resulting errors in many traditional forensic science disciplines. There is a new emphasis by forensic experts who have accepted objective, empirically based scientific research that supports opinion evidence at a higher, more reliable scientific basis. Scientific studies have been undertaken that demonstrate reliable methods and approaches that minimize the potential for subjective bias.

How the Organization of Scientific Area Committees (OSAC) for Forensic Science Is Making a Difference

Following the 2009 NAS report, the National Science and Technology Council’s (NSTC) White House Office of Science and Technology undertook an evaluation of the concerns expressed in that report. The Organization of Scientific Area Committees (OSAC) for Forensic Science grew out of that evaluation of those concerns. In 2013 U.S. Attorney General Eric Holder, on behalf of the US Department of Justice (USDOJ), and Director Patrick Gallagher, on behalf of the National Institute of Science and Technology (NIST), entered into a bilateral agreement to form two organizations. One, the National Commission on Forensic Science, would be administered by USDOJ to address forensic science policy issues. The other, OSAC, would be established by NIST to improve forensic science through a standards development process. The charter of the National Commission on Forensic Science expired in 2017. OSAC continues in operation.

OSAC is a professional organization that facilitates the development and promotes the use of high-quality, technically sound standards for forensic science. Its 550+ members have expertise in many forensic science disciplines, as well as scientific research, measurement science, statistics, law, and policy. NIST, under the Department of Commerce, is responsible for the overall administration of the OSAC program.

The Forensic Science Standards Board (FSSB) serves as OSAC’s governing board and directs the organization through governance rules and policies. FSSB is comprised of the chair from each Scientific Area Committee (SAC), representatives from several national forensic science professional associations, researchers, members-at-large, and one NIST representative (ex-officio member). FSSB oversees the SACs and forensic science subcommittees. Most importantly, FSSB oversees the final approval process for standards being placed on the OSAC Registry.

The standards development process begins when a subcommittee identifies a need for a standard or guideline. An OSAC standard can start as a revision to an existing standard or guideline, a preliminary concept for a new standard or guideline that has not been thoroughly developed, or a new draft document that goes through a formal standards developing organization’s (SDO) voluntary consensus standards development process. All OSAC committees are required to have balanced representation across stakeholders and reach consensus. Consensus is the general agreement of members within each OSAC unit and is achieved through the examination of issues, including the discussion of dissenting opinions and the resolution of disagreements.

To ensure the development and approval of high-quality standards, OSAC has dedicated task groups comprised of experts who focus on human factors, legal, quality, and statistics. The OSAC standards approval process is being revised. Effective October 1, 2020, OSAC proposed standards will be subject to a technical assessment by members of a Scientific and Technical Review Panel. After this technical review, a standard will be sent out for open comment from the larger stakeholder community and then forwarded to an SDO for further development.

The OSAC Registry serves as a repository of scientifically sound forensic science standards that address discipline-specific forensic science needs. There are currently 29 standards listed on the Registry. Before a document is placed on the OSAC Registry, it is put out for open comment to determine whether it should be included. The open comment period is publicly available via the OSAC website. The Registry can be accessed through the OSAC website.

In industry, science, technology, and other endeavors, advancements in the field are often the product of bringing together all interested parties and finding consensus among experts in terminology, processes, methods, and techniques. Consensus might be achieved by open dialogue among peers of best practices to achieve repeatable and accurate results.

Standards are created by bringing together all interested parties such as manufacturers, consumers, and regulators of a particular material, product, process, or service. All parties benefit from standardization through increased product safety and quality.

Generally, the term “standard” (or “technical standard”) includes (1) common and repeated use of rules, conditions, guidelines or characteristics for products or related processes and production methods, and related management systems practices; (2) the definition of terms; classification of components; delineation of procedures; specification of dimensions, materials, performance, designs, or operations; measurement of quality and quantity in describing materials, processes, products, systems, services, or practices; test methods and sampling procedures; formats for information and communication exchange; or descriptions of fit and measurements of size or strength; and (3) terminology, symbols, packaging, marking, or labeling requirements as they apply to a product, process, or production method.

Most standards are voluntary in that they are offered for adoption by people or industry without being mandated in law. Some standards become mandatory when they are adopted by regulators or legislators as legal requirements in a particular jurisdiction. Forensic science standards may also be incorporated into a laboratory’s accreditation scope or into its quality manual, requiring the lab to be assessed to the standard during its accreditation process.

The use of a standard is voluntary unless mandated by regulation or statute. Standards are developed outside of government by an SDO, an entity that develops or sponsors the development of voluntary standards for use or information by any person involved in the manufacture, distribution, sale, or use of products or services or the legal regulation of such products or services. This definition includes but is not limited to voluntary consensus standards bodies.

Courts Would Be Benefited by Looking to Forensic Science Standards

Forensic science, simply defined, is the application of science to the law or legal matters. When the judicial system needs science to resolve a question, we refer to the person who is called upon to bring science into the courtroom as a “forensic scientist.” The disciplines of law and science are strange partners. Science is an empirical method of learning anchored to the principals of observation and discovery as to how the natural world works. Scientific knowledge advances human understanding by developing experiments that provide the scientist with an objective answer to the question presented. Through a scientific method of study, a scientist systematically observes physical evidence and methodically records the data that support the scientific process. The law, on the other hand, starts out with at least two competing parties who use the courthouse as a battleground to resolve factual issues within the context of constitutional, statutory, and decisional law. In science, all answers are provisional, while the law seeks finality. The scientific advancements that have found their way into courtrooms have resulted in legislation that allows for a reset post-conviction. For example, statutes are regularly found that allow for post-conviction DNA testing for cases where a DNA result in conflict with the original verdict may contradict the finding of the original trial. Some states have adopted legislation that similarly allows for reconsideration of a conviction where the forensic science of the time (e.g., paraffin tests, as mentioned above) has been discredited.

The legal system—criminal, civil, and administrative—must resolve controversies. Forensic science has long been at the forefront in answering complicated questions brought before the bar of justice. Forensic scientific standards, simply stated, enhance the value and usefulness of forensic science to the legal community. A good forensic science standard not only helps assure high-quality results in the laboratory, but also shows how work performed in accordance with the standard is both well-grounded in theory and data and presented within the boundaries of “the knowledge and experience of [the expert’s] discipline.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148 (1999) (quoting Daubert, 509 U.S. at 592). Standards address four principal features that are important to the legal system’s utility of a given standard: (1) Standards are written as clearly as possible, and without undefined technical terms and symbols, to enable lawyers and judges to grasp the main ideas and requirements. (2) Standards describe in detail how the peer-reviewed and readily available scientific literature establishes the validity of the assumptions underlying the scientific tests and the interpretation of test results. (3) Standards list the limitations of the tests and results and provide for expressions of the uncertainties in measurements and inferences drawn from them. (4) Standards include recommendations or requirements for the creation and retention of documentation of the test and the contents of reports, including the scientific limitations of the tests and related conclusions or inferences. OSAC-approved forensic science standards developed by practitioners working with other stakeholders address all the questions being asked by courts.

Courts are concerned with both technical merit and legal importance. Courts are not able to assess the scientific merit of a standard on their own. Therefore, having a process that reviews whether a standard makes a case for the scientific validity of the method and legal utility (or, in the terms of Daubert, legal reliability) of the kinds of expert opinions that a standard contemplates is invaluable to the decision-making, truth-seeking function of the court.

Forensic Standards Are Relevant to Court Litigation When a Scientific Test or Method Is Being Considered as Evidence

A scientifically reliable analytical testing technique should ideally have a high probability of a “true” result and minimize the probability of a false positive. A judge would want to know if the test at issue meets any recognized forensic scientific standard. Another question could be whether the laboratory conducting the test follows a recognized scientific standard protocol. For example, in a drug possession or sale case, a drug identification test could be challenged. A court may look to a recognized forensic science standard for doing seized drug testing. If a standard addresses the test method being questioned, the standard would be an invaluable resource and a court could quickly and reliably address admissibility concerns and resolve legal questions raised by the parties and required to be decided by the admissibility decisions in the jurisdiction. A standard that identifies a testing methodology protocol may provide one party in litigation support for the conclusion reached by the forensic scientist. The failure to abide by that protocol in some meaningful way may provide the opposing party the means to attack or undermine that same conclusion.

For example, a recognized standard known as ISO 17025 is a forensic scientific standard originally promulgated by the International Organization for Standardization (commonly referred to as ISO); it is an OSAC-approved standard. ISO 17025 specifies the general requirements for the competence to carry out tests and/or calibrations, including drug sampling. It covers testing and calibration performed using standard methods, nonstandard methods, and laboratory-developed methods. If a laboratory adopts and uses this standard in performing testing, it provides some evidence that the method has met a degree of scientific acceptance. If ISO 17025 does not recognize a test as valid, the opposite conclusion may be reached.

The American Society for Testing and Materials (ASTM) is an American nonprofit corporation that has some 30,000 members. Its membership is primarily comprised of scientists and technical experts from 110 different countries representing various companies, manufacturers, major users, academia, and government. ASTM’s core mission is to provide a forum for volunteer technical experts to develop and publish standards for materials, products, services, and systems and standardized methods for testing different properties and materials. ASTM standards have been recognized in both reported cases (see, e.g., Garrett v. Howmedica Osteonics Corp., 214 Cal. App. 4th 173, 179 (2013); Howard v. Omni Hotels Mgmt. Corp., 203 Cal. App. 4th 403, 413 (2012)) as well as statutes, including California Public Resources Code sections 42356 and 42357. ASTM has a technical committee known as E30 that deals with forensic sciences. The purpose of the E30 committee is to promote knowledge and development of standards (test methods, guides, practices, classifications, and terminology) for definitions, methods, and standard reference materials for the collection, preservation, scientific examination, preparation, and reports relating to physical evidence for forensic purposes, and the general practice of forensic science.

Under the jurisdiction of the ASTM Committee E30 on Forensic Sciences, ASTM published as a consensus-based forensic standard “E2329-17 Standard Practice for Identification of Seized Drugs” [hereinafter E2329-17]. This scientific-based practice standard is applicable to all testing used to identify a seized drug. ASTM E2329-17 is an OSAC-approved standard and has been demonstrated to produce highly accurate results. “Results indicate the DEA drug identification process is characterized by high sensitivity (99.90%) and specificity (99.12%), with very low type I (0.87%) and type II (0.092%) error rates.” S.E. Rodriguez-Cruz & R.S. Montreuil, Assessing the Quality and Reliability of the DEA Drug Identification Process, 6 Forensic Chem. 36 (2017). This standard practice requires the use of multiple uncorrelated testing techniques. The E2329-17 drug identification criteria require that when a test is used as part of drug identification practice (i.e., when making an analytical identification), at least three different validated techniques “shall be employed.” E2329-17 requires any analytical test scheme must demonstrate the precise identity of the specific drug present and “shall preclude a false positive identification and minimize false negatives.” Does the testing laboratory used meet this requirement? Did the test used in the case before the court meet or fail to meet the minimum criteria set forth in the E2329-17 standard?

Accepted forensic standards can help judges make decisions when the critical issue faced by courts deals with the use of experts and the admissibility of expert opinions. Forensic standards cover minimum requirements for expert qualifications in a forensic specialty. Forensic fire investigation deals with a determination of the cause, origin, and development of a fire within a jurisdiction. Reports of findings usually go to the state and conclusions can determine whether a crime may have been committed in cases of arson or criminal negligence. If there is no evidence a crime may have been committed, then the fire marshal classifies the fire as natural, accidental, or undetermined. Fire investigations commonly result in civil litigation rather than criminal prosecution, and therefore courts are required to evaluate opinions of experts.

An example of a useful forensic standard is an OSAC-approved standard on qualifications for arson experts titled “Standard for Professional Qualifications for Fire Investigator” [hereinafter NFPA 1033], developed and published by an SDO known as the National Fire Protection Association (NFPA). This fire investigator standard was developed within a consensus standards development process approved by the American National Standards Institute. NFPA 1033 was approved by the NFPA Technical Committee on Fire Investigator Professional Qualifications. The intent of the standard was to identify clear and concise job performance requirements that can be used to determine that an individual, when measured against the standard, possesses the skills and knowledge to perform as a fire investigator. Job performance requirements are applicable to fire investigators both public and private. To meet the requirements of NFPA 1033, the standard recognizes that arson expert investigators must have certain minimum qualifications. The standard details requisite knowledge and skills to accomplish the duties of an arson investigator.

In Richey v. Bradshaw, 498 F.3d 344 (6th Cir. 2007), defendant Kenneth Richey was convicted and sentenced to death by the State of Ohio for aggravated felony murder in connection with the arson death of a two-year-old child. Richey’s conviction was reversed because his trial attorney did not conduct an adequate investigation to locate a competent fire investigator expert who would have rebutted the false scientific testimony of the state’s two arson experts. The court found that Richey’s trial counsel failed in his constitutional obligations at nearly every stage of the process. He selected an ill-qualified expert, failed to work with that expert to any meaningful degree, and had no idea what investigation the expert made or how the expert reached his conclusions. Because he had not consulted a competent expert, Richey’s trial counsel could not even effectively cross-examine the state’s expert witnesses about the cause of the fire.

An opinion of a qualified expert witness is admissible if it is based upon facts or data, it is the product of reliable principles and methods, and the expert has applied the principles and methods reliably to the facts of the case. Fed. R. Evid. 702. Trial courts are given wide latitude in determining whether an expert’s testimony is reliable. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).

Another example of an NFPA SDO-approved forensic standard that can be used by lawyers and judges to evaluate the reliability and relevancy of opinions proffered by arson experts is NFPA 921, Guide for Fire & Explosion Investigations. This OSAC-approved standard has been quoted by judges in both federal and state courts in decisions regarding expert testimony. NFPA 921 outlines the principles and methodology for conducting fire and explosion investigations. It outlines both the science underlying those principles and the process that experts should follow in their investigations. The case of Fireman’s Fund Insurance Company v. Canon U.S.A., Inc., 394 F.3d 1054 (8th Cir. 2005), involved a fire that destroyed a video rental store and other businesses located in a strip mall in Minnesota. Insurers and mall tenants were plaintiffs in a suit against Canon USA Inc. for product liability alleging that a copy machine manufactured by Canon caused the mall fire. At trial, the district court excluded the plaintiff’s expert testimony on the copier being the sole cause of the fire, and the case was dismissed. The district court’s decision was affirmed on appeal because the experts did not apply the principles and methods of forensic standard NFPA 921 reliably to the facts of the case. NFPA 921 required that hypotheses of fire origin must be carefully examined against empirical data obtained from fire scene analysis and appropriate testing; the district court did not abuse its discretion in concluding that plaintiff’s expert opinions were unreliable and, thus, it was not error to exclude these opinions.

Thus, as it was with the courts in Richey v. Bradshaw and Fireman’s Fund Insurance Company v. Canon U.S.A., Inc., NFPA OSAC-approved forensic standards would be a significant benefit to the court when deciding issues relating to arson experts. A court, for example, could and should use NFPA 1033 in deciding to authorize the expenditure of funds when appointing a qualified expert to assist a defendant. See AKE v. Oklahoma, 470 U.S. 68, 84 (1985); Paul C. Giannelli, AKE v. Oklahoma: The Right to Expert Assistance in a Post-Daubert, Post-DNA World, 89 Cornell L. Rev. 1305 (2004).

What Is the Value of Forensic Science Standards to the American Legal System?

We asked at the outset, “what is the value of forensic science standards to the American legal system?

  1. It helps to remove the forensic science from the fragmented system that the National Academy identified in its 2009 report.
  2. In its place it substitutes operational principles and procedures that are more standardized and represent greater harmony, and performance standards that are subject to effective oversight.
  3. It provides greater guidance to judges and lawyers as to whether the forensic evidence should be admitted or excluded. It offers information about whether testing or analysis was conducted appropriately, and if not, whether the evidence should be excluded for that reason. If proper protocols were not followed, but for whatever reason exclusion is not an appropriate remedy, nevertheless it may provide fertile ground for discrediting the witness and the evidence.
  4. It provides more resources for lawyers and judges to access information about forensic evidence that may be at issue in a case at bar. The information provides transparency regarding the strengths and weaknesses (or limitations) of the methodology or discipline and may make that information more accessible for bench and bar. Part of that accessibility is a function of terminology being defined or otherwise explained.
  5. Because the SDO process is based upon gathering representatives of all interested parties, weaknesses and strengths should reasonably be expected to be exposed for consideration and scrutinized from all angles.
  6. As we have seen, it may identify necessary qualifications for lawyers to look for in choosing their experts or attacking the opposition.
  7. We mentioned accessibility in point 4. Another way in which the OSAC standards are accessible is by virtue of the fact that accessing this information requires only to access this NIST link.
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Matthew F. Redle

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Matthew F.  Redle was a 38-year veteran of the County and Prosecuting Attorney Office for Sheridan County, serving as the elected prosecutor in that office for 32 of those years. He is a Past Chair of the Criminal Justice Section, a recipient of the Charles R. English Award, and a past Vice President of the National District Attorneys Association.

Honorable Christopher J. Plourd

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Honorable Christopher J. Plourd is a Superior Court of Imperial County California judge, a fellow of the American Academy of Forensic Sciences, a member of ASTM International E-30 Committee on Forensic Science, and a member to the Organization of Scientific Area Committee (OSAC) Forensic Science Toxicology scientific subcommittee.