Skip to content

Materials & Models for Reform

Long term change can only be achieved through the enactment of concrete reforms and improvement in the field of forensic science. The section below will explore potential reforms and provide examples of actions taken in jurisdictions around the country that successfully model these reforms.

Forensics Reform Toolkit

Forensic evidence is increasingly important in criminal investigations and prosecutions, and yet the role that police officers, forensic examiners and crime labs play in our criminal system is largely unexamined and unregulated.

This toolkit explains how your community can take action first at the local level, with the larger goal of global, transformational reform at the state and even federal level over time. 

To reform areas where error or misconduct may flourish, this toolkit focuses on three areas of reform: (1) Independence; (2) Accuracy; and (3) Oversight.

Download Toolkit

Police Reforms

A sound forensic analysis process begins with thorough police investigations that collect evidence in an unbiased manner. Cognitive and contextual biases of officers analyzing crime scenes can affect the investigative process.  It is important that procedures are instituted that improve the flow of information to crime lab analysts, including procedures that selectively blind them to irrelevant and potentially biasing information. Maintaining structured and impartial collaboration between crime labs and law enforcement is crucial to ensuring forensic evidence’s proper use in the criminal legal system.

One major reform goal is to ensure that a jurisdiction has structures for crime scene investigation that maintain independent and bias-free operation of forensic laboratories. Most laboratories are not independent.  The most recent federal survey of 300 crime laboratories showed that 79% were located with law enforcement agencies and 57% only examined evidence submitted by law enforcement officials. Independence allows lab directors to have voice in making decisions and setting priorities. While communication and cooperation between forensic laboratories and law enforcement is necessary, such communication should not bias laboratory operations. In order to achieve independence for statewide crime labs, the state must establish an agency with an independent director, separate from the department of justice, that prohibits the employment of law enforcement officers. Removing forensic laboratories from the administrative control of law enforcement is an important step for reform.

In addition to removing forensic laboratories from the administrative control of law enforcement, there are additional quality assurance practices that assure more independence in those methods used to conduct forensic work, such as blind proficiency testing:

Proficiency testing is a quality control tool used to examine the performance of personnel and to determine whether personnel are following industry standards. Blind proficiency testing is where the proficiency test item is indistinguishable from normal customer items or samples received by the laboratory.[19] One example of a blind proficiency test is providing samples with known levels of alcohol or drugs to unknowing examiners at drug testing laboratories for analyses to determine whether examiners produce an accurate result. The National Academy of Sciences recommends blind proficiency testing in crime labs as a way to accurately assess the quality of a person’s work.

As new technologies are developed that make it possible to analyze evidence in new ways, collecting and preserving physical evidence is increasingly important.  Many criminal cases rely on forensic evidence throughout the criminal legal process. For example, in sexual assault cases, rape kits are a vital part of solving crimes. 

Most states have enacted some form of an evidence preservation statute, which requires the preservation of evidence until after trial. Yet many of these statutes are limited in substance and scope and create huge loopholes that permit early destruction of evidence that could have shed light on a person’s guilt or innocence.  For instance, many laws that guide the post-conviction preservation of evidence allow for premature destruction by only requiring evidence be preserved if a petitioner requests that it be retained. Yet we know there are many reasons someone might not petition for the retention of the evidence connected to their case, including not knowing this right is available to them under the law.

Even in the states that have evidence retention statutes, the protection provided by these statutes is fragmented and is subject to numerous limitations, so agencies charged with retaining evidence should maintain their own preservation policies.  The Department of Justice, which created a Technical Working Group to provide guidance to entities that preserve evidence require the following baseline retention recommendations: preserve all biological evidence in adjudicated homicides, rapes, felony assaults, kidnappings and felony robberies for – at minimum – the length of time a person remains incarcerated for the offense, regardless of whether the conviction was secured through a plea agreement. But we believe there should be even longer retention since people can still have consequences after release from incarceration, e.g. sex offender registration.

State law typically governs the scope of DNA collection that can be taken from individuals, either at the point of arrest or conviction.  Despite these laws, however, some police agencies operate unregulated DNA databases comprised largely of people who have volunteered their DNA samples for the purposes of helping the police to solve crime by eliminating themselves as suspects. What the people in these databases do not realize, however, is that oftentimes their DNA profiles are permanently maintained by the police agency in an unregulated database.  These databases should be banned, as they keep largely people of color in a perpetual suspect status.  This not only breaks community trust; it could even lead to wrongful conviction.

Another risk for wrongful conviction is law enforcement’s use of color-based field drug tests. These are “presumptive” drug kits, often used during roadside stops, that are used to attempt to determine if a given substance is a narcotic. The problem is that these color-based field tests are not reliable. They have identified household items like folic acid, jolly ranchers, soap, and cat litter as illegal drugs.  Because of the unreliability of color-based presumptive field tests, substances that test positive are supposed to be sent to a crime lab for a more reliable test to confirm whether it is actually a narcotic. Unfortunately, that rarely happens. Why is that? Because most people, facing detention, the loss of their jobs, housing or custody, will understandably plead guilty to avoid these issues and end up with a permanent conviction on their records. And who is affected most frequently? People of color arrested for low-level drug offenses. 

Police agencies, if they currently use presumptive color-based field drug tests, should stop using them, as the Houston Police Department did following the revelation of more than 100 wrongful drug arrests based on these tests.

 If a police department is going to use these presumptive tests, then they must take other steps so that a conviction is not entered before a crime lab has tested the substance and confirmed the test result. To prevent innocent people from pleading guilty in the face of a positive presumptive field drug test, police should never detain people during the period of time between a presumptive field drug test and confirmatory lab test.

Another entry point to a wrongful conviction is the use of facial recognition technology, which has been shown to develop unreliable “matches”.  As of the publication of this Toolkit, we are aware of seven highly publicized wrongful arrests based on the use of this technology, six of whom are Black people.  Most recently, facial recognition technology led to the wrongful arrest of a pregnant woman who was handcuffed on her front lawn in front of neighbors and her children despite the fact that the initial description of the suspect included no notation of pregnancy . Had she not been visibly pregnant, we do not know if her innocence would have ever been established. Far more unreported cases have likely occurred.

We should never use technology to develop suspects that have not been adequately tested. Further, its use to develop suspects can bias the memory of eyewitnesses and lead to eyewitness misidentification.  Until facial recognition technology has been fully and independently validated (which the National Academy of Sciences in an important 2024 report has determined is not presently the case), it should not be used by law enforcement or private companies.

A Model: The Houston Forensic Science Center

Until 2012, the Houston Police ran the Houston, Texas crime lab. In response to high-profile wrongful convictions, quality control failures, and evidence backlogs the city created the Houston Forensic Science Center as an independent local government corporation. They have publicly accessible standards that outline requirements for competence, impartiality, and consistent operation. Learn more about the Houston Forensic Science Center here.

Questions to Ask:

Oversight

  • What are the avenues for review of forensic analysis in your jurisdiction?

Independence

  • Do your state’s policing agencies’ code of ethics include a duty to impartially collect evidence? Are there any state laws or policies in place to support enforcement of this duty?
  • Do the forensic laboratories in your jurisdiction operate individually from policing agencies?
    • Is it located physically within the law enforcement offices?
    • Do they analyze evidence other than what is submitted by police?

Accuracy

  • Does the law require you to collect DNA profiles from people arrested – but not convicted – of crimes?
  • Does your agency use facial recognition technology as an investigative tool? For which crime categories?
  • Does your policy agency use presumptive or field drug tests? Which testing kits does your agency use, e.g. is it a colorimetric test? What is the error rate of the test(s) you use?
  • Does your state have an evidence preservation statute? Does the statute minimally comply with the recommendations issued by the Department of Justice?
  • If the lab is under your auspices, what steps do you take to address cognitive bias? Has your agency implemented blind proficiency testing?

Lab Level Reforms

According to data from the Department of Justice, 88% of crime laboratories are accredited. While this is a positive development, accreditation does not involve robust review of how well labs actually perform and meet those standards.  Accreditation largely involves review of policies on paper and is no substitute for using scientifically vetted methods and quality controls.

Quality assurance practices are management procedures that help improve the validity and reliability of findings by establishing standard processes and methods for conducting forensic work.

Proficiency testing is a quality control tool used to examine the performance of the crime lab personnel and to determine whether personnel are following industry standards. Blind proficiency testing is where the proficiency test item is indistinguishable from normal customer items or samples received by the laboratory. One example of a blind proficiency test is providing samples with known levels of alcohol or drugs to unknowing examiners at drug testing laboratories for analyses to determine whether examiners produce an accurate result. The National Academy of Sciences recommends blind proficiency testing as a more precise test of a worker’s accuracy.

A second examiner is provided with evidence to analyze but is not aware of the results of any other examiner also analyzing the evidence. Their results are then compared for consistency and accuracy.

The American Statistical Association (ASA) guidelines provide a strong basis for the development of statistically sound reporting policies. The guidelines state that all statements and opinions should “accurately convey the strengths and limitations of forensic findings.” Thus, it is crucial that examiners “prepare reports and testify using clear and straightforward terminology, clearly distinguishing data from interpretations, opinions, and conclusions and disclosing known limitations that are necessary to understand the significance of the findings.” Simply put, the statistical strengths and limitations of the methods need to be set out in all reporting.

State and federal law defines the scope of permitted DNA collection that can be taken from individuals, either at the point of arrest or conviction.  Despite statutory protections, however, some crime labs operate unregulated DNA databases.  These unregulated databases should be banned as they are not subject to oversight under DNA collection statutes.

Case review and/or reanalysis involves evaluating case related materials and determining if appropriate work was conducted. The review may also identify what additional work should be conducted, which may help reveal the truth about an event.

“Corrective actions” are potential solutions that eliminate or minimize the risk of repeating the nonconforming work or departure from policies and procedures. The purpose of quality corrective action is to bring about continuous improvement; corrective action is not considered punitive in nature. These practices specify steps and requirements to ensure a nonconformity is corrected and post corrective action monitoring is performed to avoid recurrence.

Formal assessments can be used to check whether or not an individual meets the standards of performance. Methods of assessment include observation, trainer reports, review of performance products, oral or written examinations, and more.

Many crime laboratories and other agencies involved in forensics work do not make their policies available to the public. Such standards should be shared with outside entities that review the work of a lab. 

Model Legislation: Maryland Lab Regulations

In 2007, Maryland began licensing crime labs after a high-ranking firearms expert had falsified credentials in hundreds of trials. Maryland General Code §17-2A applies to crime laboratories the same types of rules that apply to medical laboratories in the State.  Maryland is the only jurisdiction that adopts many of the same rules for medical and forensic laboratories.

Questions to Ask:

Independence

  • Is your lab administratively independent from the police department?

  • Do you share your work equally with the prosecution and the defense?

Accuracy

  • Does your local crime laboratories or forensic agencies have written standards which are publicly accessible?
  • What standards do the labs in your jurisdiction follow for reporting?
  • Are you entirely or partially funded through court fines and fees, e.g. by conviction or funded through the (jurisdiction’s) budget?

●  What steps do you take to address cognitive bias? For instance, has your lab implemented blind proficiency testing?

Oversight

  • Does your state require accreditation of forensic laboratories?
  • If your local forensic laboratories are accredited, which organization was responsible for their accreditation?
  • What quality assurance practices do your forensic laboratories implement? If your local labs do implement quality programs, what bodies are responsible for the implementation or review of these programs?

Prosecutor Agency Reforms

Some forensic disciplines, like bitemark evidence, or assays or tests, like presumptive field drug tests, have not been validated in a clinical setting and therefore have no evidentiary value or have some value, but no known error rate.  Absent validation, these forms of evidence should be avoided or rejected.

Unregulated local DNA databases should be banned as they are not subject to oversight under the DNA collection statutes. More generally, all forensic databases should be regulated to protect privacy, fairness, and accuracy in their use.

Even if a prosecutor’s office does not want to outright reject cases that have been referred to them based on the use of a presumptive field test, it can implement a policy that only permits a plea agreement, upon the request of a defendant, [SK1] [BJ2] [RB3] pending a confirmatory test.

It is not uncommon for crime labs to regard police or prosecutors as their “customers” and therefore share findings, conclusions, and underlying information and notes that inform those findings and conclusions only with one side of the adversarial system.  Not only could this be cured at the crime lab level, it could also be addressed through what is known as “open file discovery.” In an open file system, the information in the prosecutor’s file is available to the defense.  Open file discovery as a policy had the added benefit of providing evidence to the defense in advance of a plea agreement to avoid coercion of the innocent.

Crime labs should adopt open file discovery policies, just as prosecutors have in many jurisdictions, or laws should require it. Often, discovery rules only require sharing basic lab certifications or summary reports with the defense, and not the complete file, which may contain the information needed to understand how the forensic analysis was documented and conducted.

Questions to Ask:

  • Does your office have an open file discovery policy, enabling early and automatic sharing of information with the defense?
  • How are your line prosecutors educated about the possible misapplications of forensic science?
  • How does your office keep abreast of advancements in forensic science? What efforts does your office make to ensure that potential forensic evidence has been validated?
  • How does your office know when consensus in the scientific community changes or evolves with respect to the utility of a particular forensic discipline?
  •  

Local and State Level Reforms

Forensic Science Commissions provide oversight and guidance to crime laboratories to help ensure complete and accurate evidence collection.  Members of these commissions are most often determined by gubernatorial appointment and typical consist of individuals though to have professional stake in ensuring thorough forensic review (often lawyers, academics, law enforcement, forensic scientists, etc.). Twenty-one states have active forensic science commissions or advisory boards, but all are not created equal. Many commissions lack investigative authority, standards-setting authority, or the ability to take corrective action. The Texas Forensic Science Commission is an exception to this trend.

A Model: The Texas Forensic Science Commission

Texas is one of several states to create oversight commission for forensics. Created in 2005, the Texas Forensic Science Commission investigates allegations of professional negligence or misconduct, manages the accreditation of forensic laboratories, and makes recommendations to state lab. They have authority to conduct case reviews and have done so on topics such as the use of hair, DNA and bitemark analysis.  The Commission consists of seven scientists and two attorneys (one prosecutor and one defense attorney).  Learn more here.

Standards setting for forensic laboratories is important to create uniformity and reliability in the forensic field.  Currently, standards setting is developing at many levels.  At the state level, forensic science commissions, like the Texas Forensic Science Commission mentioned earlier, can set and enforce standards for the labs within their state. Few states have such a body, however.  There are also efforts to create standards at the national level, for example, through The Organization of Scientific Committees for Forensic Science (OSAC).  The OSAC is only gradually developing guidelines that can be adopted as standards, and some laboratories have already committed to adopting the standards once they are eventually complete. The National Forensic Commission has also adopted certain standards for federal agencies.

A Model: The Houston Forensic Science Commission Quality Division

The HFSC provides another model through their Quality Division. The division consists of a Quality Director, 5 specialists, and 1 quality/research associate. The Quality Division is organizationally separate and works to ensure compliance with the ISO/IEC 17025 standards, the ANAB supplemental standards, the Quality Manual and their sectional SOPs. Quality Assurance programs they implement include blind testimony transcript review, blind proficiency tests, and monitoring the validity of results.

Sites@Duke Express is powered by WordPress. Read the Sites@Duke Express policies and FAQs, or request help.