Forensic Magazine

September 13, 2016

DOJ's Code of Conduct: No More ‘Reasonable Scientific Certainty’

by Seth Augmentin

Forensic science, already under review and scrutiny from an alphabet-soup of federal agencies, is getting another reining-in from the Department of Justice.

Terms such as “reasonable scientific certainty” can no longer be used, DOJ labs have to post internal validation studies online, and forensic scientists will be expected to uphold a 16-part “Code of Professional Responsibility for the Practice of Forensic Science,” announced Loretta Lynch, the U.S. Attorney General, in a memorandum last week.

“Today’s announcement marks yet another step forward in the department’s efforts to strengthen the practice of forensic science in our nation’s laboratories and courtrooms,” said Sally Yates, the Deputy Attorney General. “We are continually looking at ways to ensure that forensic evidence is collected, analyzed and presented in a responsible and scientifically rigorous manner.”

Another term that cannot be used any longer is “reasonable (forensic discipline) certainty,” according to the AG’s directive, dated Sept. 6.

Any quality management system (QMS) documents created as part of the normal course of business in DOJ forensic laboratories, along with summaries of internal validation studies, will have to be posted online with 18 months.

The “Code of Professional Responsibility” includes 15 requirements for all forensic analysts, and a 16th specifically for managers. They mostly cover implied scientific and ethical standards, but seem to codify many of the widely-held set of rules:
  • Accurately representing credentials.
  • Being honest and truthful
  • Fostering professional competency
  • Continuous learning
  • Conducting research and forensic casework
  • Preventing evidence tampering
  • Avoiding conflicts of interest
  • Conducting examinations that are fair and unbiased
  • Making and maintain accurate records
  • Ensuring findings are backed by data and free of influence and bias
  • Issuing opinions and conclusions only within areas of expertise
  • Preparing reports with straightforward language – including known limitations
  • No alterations or omissions of information for strategic advantage
  • Encouraging whistleblowing of improper actions
  • Honest communication all informative findings to all parties, including defense
  • For managers: informing prosecutors of improprieties or breaches of law or standards
The National Institute of Justice will also consider a grant program to fund multiyear post-doctoral fellowships at national, state and local labs, they added.

Lawrence Kobilinsky, a professor of forensic science and chair of the Department of Sciences at John Jay College, is also part of the National Commission on Forensic Science's subcommittee on report writing and testimony. He told Forensic Magazine, in his individual capacity as a forensic scientist and educator, he believed that all of forensics is becoming much more stringent - and difficult. Even the "forensic certainty" term shows that only numbers might be good enough for courtrooms and juries of the future.

"I think it's going to be tougher and tougher to practice forensic science," the John Jay expert said. "Just about everything is going to have to be quantified. And not every scientist is a statistician."

The American Academy of Forensic Sciences did not respond to a request for comment about the AG’s directive.

The federal reevaluation of forensic sciences has continued recently. Last week, the President’s Council of Advisors on Science and Technology (PCAST) approved a report which dismissed some forensic science, such as bite marks and hair analysis, while casting doubt on other disciplines such as ballistics, which have traditionally been accepted.

Forensics first came under widespread scrutiny in 2009, with a report by National Research Council entitled “Strengthening Forensic Science in the United States: A Path Forward.” It called for major reforms to the criminal-justice system – and to establish national forensics scientific standards.

The American Association for the Advancement of Science (AAAS) has undertaken what could become a “transformational” reevaluation of American forensic science, in response to the 2009 report. Ten disciplines are going to be subject to investigation. First up is firearms and toolmark identification, latent fingerprints and arson investigations. Those are already underway.

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