Policy Page – November 2015


Disclaimer: The views and opinions expressed in the articles contained in the Academy News are those of the identified authors and do not necessarily reflect the official policy or position of the Academy.

Consortium of Forensic Science Organizations

Sources:  Victor Weedn, MD, JD, CFSO Liaison and Beth Lavach, CFSO Advocate

The primary news concerning forensic science reform legislation is that it appears that there is more significant discussion than in the past between the Republicans and Democrats and between the House and the Senate.  This would suggest that a bill is likely to be introduced soon.  It may be part of a larger criminal justice reform, for which there seems to be great appetite on both sides of the aisle following the many highly publicized deaths from police encounters.

A government shutdown was averted again — for the seventh year in a row, the United States government has chosen to pass a Continuing Resolution (CR) rather than a budget at the beginning of the fiscal year.  With a mere seven hours to spare, the House passed a CR that will keep the government operating until December 11.  The Senate passed their CR earlier in the day.  But it was not without drama …  Speaker of the House John Boehner (R-OH) announced his intention to retire October 30, freeing him to work openly with Democrats.  Speaker Boehner achieved his success by working with Democrats to pass a “clean” CR, which does not include language defunding Planned Parenthood, but as a result of the 277 Members who voted for the CR, only 91 were Republicans.  The Senate bill passed with a vote of 78 to 20 with all nays being Republican.

For forensic science, this means all of our existing programs will continue to be funded BUT new starts will not.  However, December 11 is not that far off and, unless a larger budget agreement can be reached by the beginning of December that addresses the Budget Control Act (BCA), spending caps as well as social issues such as funding Planned Parenthood, Congress will become the Grinch who took gifts away rather than Santa giving gifts.

NCFS

Source:  Dean M. Gialamas, MS, AAFS NCFS ad hoc Committee Chair

The National Commission on Forensic Science (NCFS) held its seventh meeting on August 10-11 in Washington, DC, and is scheduled to meet for its eighth meeting on December 7-8.  Some highlights from the last meeting include:

CO-CHAIR COMMENTS:  Deputy Attorney General (DAG) Yates announced six new commissioners: Thomas Albright, PhD; Arturo Casadevall, MD, PhD; Gregory Champagne; William Crane; Deirdre Daly; and Sunita Sah, MD, MBA, PhD.  The co-chairs discussed the seven pending documents that have been approved by the Commission for review by the Attorney General.  One has been approved and the remaining six are pending.  DAG Yates stated that the remaining six will be processed by the December meeting.  It is anticipated that in the future, the Department will respond to recommendations within two meetings of documents being approved by the Commission.  She noted that while some recommendations fall within the direct authority of the Attorney General, some may need to be coordinated with other federal agencies.

COMMISSION BUSINESS:  The NCFS proposal for the creation of a new subcommittee called the Subcommittee on Procedures and Operations (SPO) was approved.  The SPO will be a standing Subcommittee of the Commission comprised of a total of eight members: four Commissioners selected by the Commission reflecting a balance of professional experiences and perspectives, as well as the Vice-Chairs, the Designated Federal Official, and a representative of the White House’s Office of Science and Technology Policy.  Those members include:

Dean Gialamas, Commissioner; Marilyn Huestis, Commissioner; Pam King, Commissioner; Matt Redle, Commissioner; Nelson Santos, Vice-Chair; John Butler, Vice-Chair; Meredith Drosback, OSTP; and Andrew Bruck, DFO.

The SPO will provide support and counsel to the Co-Chairs/Vice-Chairs on administrative and procedural matters raised by Commissioners or Commission Officials.  The members of the SPO will serve as liaisons to the Commissioners, and the Commissioners may request guidance from the SPO on any matter affecting Commission Business.  A change to the By-Laws was approved that included new language regarding replacing commissioners, the creation of the SPO Committee, and voting requirements.  Ex officio commissioners can vote on business but not on work products and abstention votes will be included in both the numerator and denominator in the vote count.  Continuing work includes finalizing language on how votes are tabulated, the types of official work products generated, as well as how comments are adjudicated across the Commission.

WORK PRODUCTS APPROVED:  The NCFS voted to approve the following final work products:

  • Recommendation on Root Cause Analysis
  • Directive on Automated Fingerprint Identification System (AFIS) Interoperability
  • Views Document on Pretrial Discovery of Forensic Materials
  • Views Document on Increasing the Supply of Forensic Pathologists
  • Views Document on Electronic Networking of Medical Examiner and Coroner Offices

One work product, Views Documents on Testimony Using the Term “Scientific Certainty,” was approved in concept but sent back to the subcommittee for additional work.

SUBCOMMITTEE WORK PRODUCTS:  There is still a great deal of activity being accomplished within several subcommittees.  Interim Solutions is still working on the code of professional responsibility and transparency of quality documents proposals.  There was a great deal of time and discussion surrounding the code of professional responsibility.  Human Factors is still working on its first work product on task-relevant information.  Reporting and Testimony is still working on its three documents related to report content (introduced as a Draft Document), probabilistic statements, and evidence preservation.  Medico-Legal Death Investigation is continuing to work on national call center recommendations.  Finally, Training in Science and the Law is continuing to work on the national forensic science curriculum (introduced a Draft Document) along with a delivery of training program.

The following subcommittees did not have any new work products introduced:  Accreditation and Proficiency Testing and Scientific Inquiry and Research.

The next three Commission Meeting dates have been set and they are:

  • December 7-8, 2015
  • March 21-22, 2016
  • June 20-21, 2016

To stay up-to-date on the activities and work products of the Commission, members are encouraged to visit www.justice.gov/ncfs.

Organization of Scientific Area Committees

 Source:  Barry K. Logan PhD, AAFS ad hoc OSAC Committee Chair

The various components of the National Institute of Standards and Technology (NIST) Organization of Scientific Area Committees (OSAC) have hit their stride and are making progress toward their goal of developing community-derived standards for the practice of forensic science in the 24 different discipline areas represented by the OSAC subcommittees.

The OSAC has been in place for almost a year and in that time the Forensic Science Standards Board (FSSB) has appointed more than 500 people to the various committees, subcommittees, and resource committees.  The FSSB has also approved terms of reference, charters, and by-laws for itself (i.e., the operating rules for its resource committees and subcommittees) and have helped with the interpretation of these.  With an evolving understanding of the committees’ and subcommittees’ roles and responsibilities, the documents have been forwarded for the review process.

I’ve been asked by several people throughout the organization to explain the differences between these standards and those developed by some of the previous Scientific Working Groups (SWGs) which were supported by the FBI.  The answer is that the difference is not necessarily so much with the documents and their contents as with the process for their review.  To be eligible for the NIST forensic science standards registry, the new standards must be approved by an organization compliant with the American National Standards Institute/International Organization for Standardization (ANSI/ISO) process that requires diversity of input during standards development to include a balance of interest, a variety of stakeholders, a consensus process free from undue influence, an open and transparent public review process, and accountability for responding to public comment.  Under guidance from NIST, I believe the OSAC process will achieve this.  Standards that have withstood and been improved by this level of scrutiny and that are then adopted by laboratories and incorporated into accreditation requirements by accrediting organizations will foster a higher level of confidence in our science by the courts and the public and will improve the standing of forensic science in the public eye.

The second question I’m asked is why the public and marginal stakeholder groups, who may not have the best interest of forensic science at heart or who lack technical knowledge in a subject, should have a voice in shaping the standards.  My feeling is that groups or individuals in whose best interest it is to see nothing change or who offer uninformed, irrelevant input will fight the standards anyway, whether in court, in letters to the editor in our journals, or within professional organizations, where their opposing point of view becomes static and noise that slows the process down, and is never put to rest.  This has happened in many disciplines under the SWG process.  On the contrary, allowing non-mainstream input during an ANSI-compliant standards development process allows it to be openly and broadly evaluated and through the consensus process, adopted or rebutted as appropriate, but nevertheless put to rest.

The technical subcommittees have started the process of moving standards forward for formal development by the American Society for Testing and Materials (ASTM).  As indicated elsewhere in this issue of the Academy News, the AAFS Standards Development Organization (SDO) initiative is moving forward and has submitted its application to ANSI; by the time we meet in Las Vegas, it is scheduled to be accepting its first standards.

As a reminder, the subcommittees are developing both standards and guidelines, standards being mandatory and using “Shall” and “Must” language.  Guidelines address less quality-critical issues, may be voluntary, and use “Should” and “May” language.  The subcommittees may develop both but the FSSB and NIST are eager to see the subcommittees’ work focus on Standards, since the optional nature of many of the SWG guidelines were felt by the National Academy of Sciences to be one of the weaknesses of that process.

A “Notice of Intent to Publish” on an OSAC Registry was recently issued announcing a public comment period for five documents from the Chemistry/Instrumental Scientific Area Committee (SAC).  These were:  ASTM: E2329-14 Standard Practice for Identification of Seized Drugs; ASTM: E2330-12 Standard Test Method for Determination of Concentrations of Elements in Glass Samples Using Inductively Coupled Plasma Mass Spectrometry (ICP-MS) for Forensic Comparisons; ASTM: E2548-11e1 Standard Guide for Sampling Seized Drugs for Qualitative and Quantitative Analysis; ASTM: E2881-13e1 Standard Test Method for Extraction and Derivatization of Vegetable Oils and Fats from Fire Debris and Liquid Samples with Analysis by Gas Chromatography-Mass Spectrometry; and ASTM: E2926-13 Standard Test Method for Forensic Comparison of Glass Using Micro X-ray Fluorescence (μ-XRF) Spectrometry.

The number of comments received was limited in spite of the fact that the announcement that the standards were available for comment was issued through the AAFS to its 7,000 members and through other organizations including the Society of Forensic Toxicologists (SOFT), the American Society of Crime Laboratory Directors (ASCLD), and the International Association for Identification (IAI).  The comments that were received have been forwarded to the Chemistry/Instrumental SAC for their review and response.  The FSSB is eager to see more engagement from the forensic science and other stakeholder communities in this process; I would encourage the AAFS membership to take the time to review these announcements when they are issued and respond either favorably or with suggested changes.

NIST has continued to identify funding within their own budget and elsewhere to support the activities of the OSAC, including the acquisition of licenses for a document management system (Kavi) to track the committees activities and to coordinate travel and staff support for the organization.  NIST recently announced they have completed negotiations on a contract for the second All-OSAC meeting, which will be held at the National Conference Center in Leesburg, VA, December 3-5, 2016.  Marc Stolorow recently presented a report on the OSAC process to the European Network  of Forensic Science Institutions (ENFSI), and I had an opportunity to introduce the organization at the second meeting of the newly formed Brazilian Academy of Forensic Sciences in Brasilia.

As the AAFS annual meeting program is announced in the next few days, there will be plenty of opportunities in Las Vegas to learn more about the OSAC process from your peers who are involved and from various events on the program.  Please make the effort to learn about and participate in this important process which will shape the future of how forensic science is practiced.

NIST has begun preparing regular monthly newsletters on OSAC activity with more detail about the organization and opportunities for participation; the most recent newsletter can be found here: OSAC Monthly Newsletter.