ADOPTED AMERICAN BAR ASSOCIATION JUDICIAL DIVISION CRIMINAL JUSTICE SECTION REPORT TO THE HOUSE OF DELEGATES RESOLUTION

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1 ADOPTED AMERICAN BAR ASSOCIATION JUDICIAL DIVISION CRIMINAL JUSTICE SECTION REPORT TO THE HOUSE OF DELEGATES RESOLUTION RESOLVED, That the American Bar Association urges the National Commission on Forensic Science to develop a model curriculum in the law and forensic science, and to provide training in that curriculum for federal, state, local, territorial and tribal judges.

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3 REPORT 115 The National Academy of Sciences (NAS) Report Strengthening Forensic Science A Path Forward, identified the problem of judges and lawyers who often lack the scientific expertise necessary to comprehend and evaluate forensic evidence 1. Since the report has been issued, Congress has not taken action to address the need for further education in this area. Therefore it is incumbent upon the judiciary and profession to move forward. Judges, lawyers, practitioners, and the general public all need education on the strengths and limits of forensic disciplines and, more generally, on the law governing expert witness testimony and evidence. Judges routinely request education in forensic science evidence. While some education programs work when attended by both judges and lawyers, judges prefer and may benefit more when the education program is limited to the members of the judiciary as attendees. The National Commission on Forensic Science has a subcommittee evaluating whether to make recommendations to the Attorney General on educational resources and programs addressing forensic discipline evidence, and, in particular, forensic science education for judges. A Forensic Science Judicial Curriculum development process should be established starting as a three-year pilot program for selected thought leader federal, state, territorial and tribal judges, from both trial and appellate courts. It is anticipated that these judges would meet for between two and four days a year rotating over three years at three different law schools working together to ensure informed development of curriculum and pedagogical methods. In addition to a day each year covering a core science curriculum for judges on issues such as statistics, validity, reliability, gate keeping legal standards, human factor issues, and the role of experts, each subsequent day would provide a balanced but in depth review of one or two forensic science disciplines which have been questioned by the 2009 NAS Report or that are novel that would likely come before courts. The subject matter areas would track disciplines under consideration by the National Institute of Standards and Technology and Justice Departments Organization of Scientific Area Committees (OSAC) as well as other challenging gate keeping science areas such as eyewitness identification evidence. The National Academy of Sciences or a similar entity would be responsible for assisting in developing the science curriculum and modular presentations by experts for the conference that could be brought back to state and federal jurisdictions and publicly distributed. The discussion among the judges themselves at these meetings would be private. The thought leader judges who attend the conference, in conjunction with the Federal Judicial Center, the National Judicial College, and state judicial educators, would be encouraged to make their own arrangements to replicate the four-day Conference based on the curriculum for judges in their own jurisdictions over the course of an entire year. This structure has a built-in multiplier effect that would assure a wide dispersion of a 1 NATIONAL RESEARCH COUNCIL, NATIONAL ACADEMY OF SCIENCES, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD, 85 (2009). https://www.ncjrs.gov/pdffiles1/nij/grants/ pdf. 1

4 balanced, first-rate forensic science curriculum throughout the legal profession in a costeffective fashion. Funding for the NAS to develop curriculum would be pursued through private foundation sources. Funding would be needed for conference expenses travel, lodging and expenses for instructors and attendees for at least the first three years and would be pursued through private foundations as well as state and federal grants. Respectfully submitted, Hon. David J. Waxse, Chair Judicial Division August

5 GENERAL INFORMATION FORM 115 Submitting Entity: Judicial Division Submitted By: Hon. David D. Waxse, Chair, Judicial Division 1. Summary of Resolution(s). This Resolution calls for the American Bar Association to urge the National Commission on Forensic Science to develop a model curriculum in the law and forensic science and to provide of training in that curriculum for federal, state, territorial, local and tribal judges. 2. Approval by Submitting Entity. The Judicial Division approved this resolution by vote on its Judicial Division Council conference call that took place on May 5, Has this or a similar resolution been submitted to the House or Board previously? While there has been no exact resolution submitted to the House or Board previously, the resolutions explained below in question/answer 4., which have all been adopted by the House of Delegates in the past, would all support the adoption of this Resolution. 4. What existing Association policies are relevant to this Resolution and how would they be affected by its adoption? The ABA has implemented certain policy adopting and reaffirming the majority of the 2009 National Academy of Sciences report on Strengthening Forensic Science in the United States: A Path Forward. Relevant ABA policies include the following and would only be strengthened by the adoption of this Resolution: 101C (February 2013) calls for a checklist of items that judges should consider when determining whether to admit forensic evidence. 101D (February 2012) calls for judges to consider potential jurors actual understanding of the forensic science, bias included, when forming jury voir dire questions in order to be sure of their understanding or capacity for understanding complex issues that may arise. 100D-I (August 2010) 100D asks for sufficient funding and resources for, among other things, scientific research to improve and further develop forensic science disciplines and to annually access and establish a prioritized agenda of and research needs in the area, and enable development of future technologies to assist with forensic science. The resolution and its related resolutions (100E-I) were intended as an integrated series of statements by the ABA and its membership to assist governmental policymakers as they proceed in the legislative implementation process. 3

6 100E (August 2010) calls for an examination of standards and certification for labs and those that work in them; implementation of programs to support accreditation and certification of labs and those that work in them, uniformity or best practices and adoption of standards and common terminology for clear communication in scientific testing; insurance of independence from internal and external pressure that would negatively affect analysis, a national code of ethics for the forensic science community, which would also be incorporated into the accreditation and certification system; the establishment of a process to regularly assess the adequacy of existing forensic science education and training programs (at all levels) across disciplines against recognized standards, or certification/best practices which takes into consideration (a) relevant research (b) changes or modifications to standards for lab accreditation (c) examiner certification (d) new and developing technologies and protocols for their use and (e) ethical issues to the role of the forensic practitioner; encouragement of and educational opportunities for students in life sciences to focus on forensic science fields; and to facilitate the implementation of training in forensic science for law enforcement, lawyers, and JUDGES, in such subjects as the scientific method, forensic science disciplines, relevant standards laboratory accreditation, certification, ethics and quality assurance and quality control measures. 100F (August 2010) focuses on the need to coordinate and integrate the forensic science community into the national effort aimed at homeland security. The disciplines and techniques involved in the investigation of crime are similarly used in the investigation of terroristic acts, threats, the tracking of terrorists and in the response to mass disasters. 100G (August 2010) focuses on improved professionalism, nationally, in the area of death investigation and continues ABA advocacy in favor of accreditation of medical examiners offices, examiner certification, adequate funding of labs and medical examiners offices. 100H (August 2010) addresses the lack of interoperability among fingerprint databases by asking equipment vendors to collaborate with in creating baseline standards for sharing fingerprint data and a common method of interface; law enforcement agencies to receive sufficient resources needed to transition to the resulting implementations for interface and data sharing; and development of coordinated agreements and policies that will allow broader sharing of data by law enforcement. It also supports operational and technological improvements to the National Integrated Ballistic Information Network, including best practices. 100I (August 2010) supports access to forensic science services and experts by indigent defendants, emphasizing that the ability of a defendant to test, re-test, and consult with testimonial and non-testimonial experts is critical to the reliability and fairness of the criminal justice system. 4

7 5. If this is a late report, what urgency exists which requires action at this meeting of the House? N/A. 6. Status of Legislation. (If applicable) There is no legislation pending at this time. 7. Brief explanation regarding plans for implementation of the policy, if adopted by the House of Delegates. If this Resolution is adopted by the House of Delegates, it is anticipated that implementation would begin with the establishment of a three-year pilot program for selected thought leader federal, state, territorial, local and tribal judges, from both trial and appellate courts. The conference would meet for between two and four days a year rotating over three years at three different law schools working together in consortium to ensure informed development of curriculum and pedagogical methods. In addition to a day each year covering a core science curriculum for judges on issues such as statistics, validity, reliability, gate keeping legal standards, human factor issues, and the role of experts, each subsequent day would provide a balanced but in depth review of one or two forensic science disciplines which have been questioned by the 2009 NAS Report or that are novel that would likely come before courts. The subject matter areas would track disciplines under consideration by the National Institute of Standards and Technology and Justice Departments Organization of Scientific Area Committees (OSAC) as well as other challenging gate keeping science areas such as eyewitness identification evidence. The National Academy of Sciences or a similar entity would be responsible for developing the science curriculum and modular presentations by experts for the conference that could be brought back to state and federal jurisdictions and publicly distributed. The discussion among the judges themselves at the conference would be private. 8. Cost to the Association. (Both direct and indirect costs) None. 9. Disclosure of Interest. (If applicable) N/A. 10. Referrals. ABA Criminal Justice Section; Section of Litigation; Tort, Trial & Insurance Practice Section. 5

8 11. Contact Name and Address Information. (Prior to the meeting. Please include name, address, telephone number and address) Prof. Barry C. Scheck Cardozo School of Law Yeshiva University 40 Worth St Rm 701 New York, NY (212) Prof. Jules Epstein Widener University School of Law 3800 Vartan Way Harrisburg, PA (302) Dr. Peter Koelling Director/Chief Counsel, Judicial Division American Bar Association 19 th Floor 321 N. Clark St. Chicago, IL (312) Contact Name and Address Information. (Who will present the report to the House? Please include name, address, telephone number, cell phone number and address.) Hon. David Waxse, Judicial Division Chair U.S. Magistrate Judge Room 603 U. S. Courthouse 500 State Avenue Kansas City, KS (913)

9 1. Summary of the Resolution EXECUTIVE SUMMARY This Resolution calls for the American Bar Association to urge the National Commission on Forensic Science to develop a model curriculum in the law and forensic science and to provide training in that curriculum for federal, state, territorial, local and tribal judges. 2. Summary of the Issue that the Resolution Addresses The 2009 National Academy of Sciences (NAS) Report Strengthening Forensic Science A Path Forward, identified the problem of judges and lawyers who often lack the scientific expertise necessary to comprehend and evaluate forensic evidence. Since the report has been issued, Congress has not taken an action to address the need for further education in this area; therefor it is incumbent upon the judiciary and profession to move forward. Judges, lawyers, practitioners, and the general public all need education on the strengths and limits of forensic disciplines and, more generally, on the law governing expert witness testimony and evidence. Judges routinely request education in forensic science evidence and this resolution will provide just that, by urging the development of a model curriculum and training in that area. 3. Please Explain How the Proposed Policy Position will address the issue It is anticipated that this Resolution will address the issue explained above by promoting and working to implement the establishment of a three-year pilot program for selected thought leader federal, state, territorial, local and tribal judges, from both trial and appellate courts. The conference would meet for between two and four days a year rotating over three years at three different law schools working together in consortium to ensure informed development of curriculum and pedagogical methods. In addition to a day each year covering a core science curriculum for judges on issues such as statistics, validity, reliability, gate keeping legal standards, human factor issues, and the role of experts, each subsequent day would provide a balanced but in depth review of one or two forensic science disciplines which have been questioned by the 2009 NAS Report or that are novel that would likely come before courts. The subject matter areas would track disciplines under consideration by the National Institute of Standards and Technology and Justice Departments Organization of Scientific Area Committees (OSAC) as well as other challenging gate keeping science areas such as eyewitness identification evidence. The National Academy of Sciences or a similar entity would be responsible for developing the science curriculum and modular presentations by experts for the conference that could be brought back to state and federal jurisdictions and publicly distributed. 4. Summary of Minority Views There are no known minority views at this time. 7

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