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On September 6, 2016, the Department of Justice, through a Memorandum from Attorney General Loretta Lynch, responded to several National Commission of Forensic Science (“NCFS”) recommendations.  The DOJ also announced a new code of professional responsibility for its forensic science laboratories.

Last year the DOJ disclosed that experts had misstated or overstated the strength of their findings in relation to microscopic hair analysis.  The issues with their findings dated back decades in some cases.  Following significant scrutiny, DOJ announced in February that a review of forensic science practiced by the FBI will occur to ensure that experts are not overstating their findings and that other scientific disciplines are appropriately regulated.

The new Memo calls for restraint in stating the strength of evidence obtained through forensic means.  The Memo specifically calls on experts to refrain from using the expression “reasonable scientific certainty” during testimony or within reports.  This is one step in a larger discussion regarding what experts can and cannot say when asked about the strength of their findings across many forensic disciplines.

“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,” Deputy Attorney General Sally Yates said in a statement. “We are continually looking at ways to ensure that forensic evidence is collected, analyzed and presented in a responsible and scientifically rigorous manner.

The code of professional conduct included in the Memo requires that forensic labs and technicians:

1. Accurately represent relevant education, training, experience, and areas of expertise.
2. Be honest and truthful in all professional affairs including not representing the work of others as one’s own.
3. Foster and pursue professional competency through such activities as training, proficiency testing, certification, and presentation and publication ofresearch findings.
4. Commit to continuous learning in relevant forensic disciplines and stay abreast of new findings, equipment, and techniques.
5. Conduct research and forensic casework using the scientific method or agency best practices. Where validation tools are not known to exist or cannot be obtained, conduct internal or inter-laboratory validation tests in accordance with the quality management system in place.
6. Handle evidentiary materials to prevent tampering, adulteration, loss, or nonessential consumption of evidentiary materials.
7. Avoid participation in any case in which there is a conflict of interest.
8. Conduct examinations that are fair, unbiased, and fit-for-purpose.
9. Make and retain contemporaneous, clear, complete, and accurate records of all examinations, tests, measurements, and conclusions, in sufficient detail to allow meaningful review and assessment by an independent professional proficient in the discipline.
10. Ensure interpretations, opinions, and conclusions are supported by sufficient data and minimize influences and biases for or against any party.
11. Render interpretations, opinions, or conclusions only when within the practitioner’s proficiency or expertise.
12. Prepare reports and testify using clear and straightforward terminology, clearly distinguishing data from interpretations, opinions, and conclusions. Reports should disclose known limitations that are necessary to understand the significance of the findings.
13. Do not alter reports and other records or withhold information for strategic or tactical advantage.
14. Document and, if appropriate, inform management or quality assurance personnel of nonconformities and breaches of law or professional standards.
15. Honestly communicate with all parties (the investigator, prosecutor, defense, and other expert witnesses) about all information relating to their analyses, when communications are permitted by law and agency practice.
16. Inform the prosecutors involved through proper laboratory management channels of material nonconformities or breaches oflaw or professional standards that adversely affect a previously issued report or testimony.