Wisconsin Criminal Justice Study Commission
Summary of Commission meeting held on 8/20/07. The meeting was held at the
Olympia Resort and Conference Center in Oconomowoc.
Commission Members present: Mike Malmstadt (chairman), Bob Donohoo, Greg Weber,
Roy Korte, Brian O’Keefe (for Nannette Hegerty), Noble Wray, Dan Blinka, Emily
Mueller, Kelli Thompson, Fred Fleishauer, Penny Beerntsen, Ken Hammond, Keith
Findley, Michael Smith, Jerry Buting, Michael O’Hear,
Also present: Lou Wilcynski (Assistant Administrator, Division of Law Enforcement
Services, Wisconsin Department of Justice), Gary Hamblin (Administrator, Division of
Law Enforcement Services, Wisconsin Department of Justice), Jeffrey Kassel (Assistant
Attorney General, Wisconsin Department of Justice), Daniel O’Brien (Assistant Attorney
General, Wisconsin Department of Justice), Norm Gahn (Assistant District Attorney,
Milwaukee County)
Not present: Gerry Mowris, Suzanne O’Neill, Floyd Peters, Judy Schwaemle, John
Charewicz, Enrique Figueroa, Scott Horne, Cheri Maples, Steve Glynn, Gerard Randall,
Bill Grosshans
Staffed by: Byron Lichstein
Lichstein introduced three new members: 1) Greg Weber, the Director of the Criminal
Appeals Unit at Wis. DOJ (recently appointed to the Commission by Attorney General
Van Hollen), 2) Roy Korte, Director of the Criminal Litigation Unit at Wis. DOJ
(recently appointed to the Commission by Attorney General Van Hollen), and 3) Gary
Luhman, the District Attorney of Green County (2). Lichstein also introduced three
expert consultants who attended at the suggestion of Wis. DOJ: 1) Norm Gahn, an
assistant district attorney in Milwaukee County, 2) Dan O’Brien, an assistant attorney
general at Wis. DOJ, and 3) Jeff Kassel, also an assistant attorney general at Wis. DOJ.
Also present from Wis. DOJ were Lou Wilcynski, an Assistant Administrator for the
Division of Law Enforcement Services, and Gary Hamblin, the Administrator of the
Division of Law Enforcement Services (2).
The Commission heard a statement from a retired New York Superior Court Judge, Peter
McQuillan, who is currently a member of New York’s forensic science commission (3).
McQuillan briefly described the forensic science labs in New York (3). He said that
NY’s forensic science commission started in 1995. He said the Commission’s major
change was implementing mandatory accreditation for all labs in the state (3-4). This
accreditation included minimum training standards for all lab personnel and proficiency
testing for analysts in all disciplines. McQuillan said the Commission has the authority
to revoke or limit accreditation if a lab fails to meet the Commission’s standards (4). The
Commission has adopted ASCLD certification (American Society of Crime Laboratory
Directors) as its accreditation standards (4). McQuillan said the Commission has
considered implementing standards that go beyond ASCLD standards—“blind testing”
for instance—but has not done so (4), although McQuillan said he personally favors some
such measures.
McQuillan then commented on one of the points listed in our Commission’s agenda—he
said he thinks it’s important for the defense to have access to the DNA databank and
other similar resources. He described a NY case in which DNA taken from semen found
in a rape victim did not match the defendant, and the prosecutor refused to have the DNA
profile run through the DNA databank (4-5). Years later, a new prosecutor agreed to run
the profile, and it matched a convicted offender, exonerating the defendant.
McQuillan then took questions from the Commission members (5). McQuillan said he
does not believe NY labs currently have long backlogs. He also said there was little
resistance to the creation of NY’s forensic science commission, although some of the labs
already accredited by ASCLAD thought the commission might be unnecessary (5).
McQuillan said the budget for the Commission is minimal—it is staffed by members of a
different governmental agency, and the actual commission members volunteer their time
(5).
McQuillan said the Commission has oversight authority, although he said the
Commission has delegated the authority for investigations of misconduct to a separate
state agency (6). He noted that federal grant funding now requires states to have an
independent entity assigned to handle allegations of negligence or misconduct.
McQuillan said that some of the academic scientists on the Commission—for instance,
someone with the NY State Dept of Health—wanted higher minimum accreditation
standards than ASCLD, but that did not occur (6-7). McQuillan said the labs pay the cost
of the ASCLD accreditation process (7).
McQuillan said that the Commission’s major contribution is mandatory accreditation: it’s
not up to the labs to decide whether to become accredited, and no one can start a lab
without state accreditation (8). McQuillan said the lab does not have jurisdiction over
private labs, and he was unsure how many cases get sent to private labs (8-9).
McQuillan said his Commission has a limited role in reviewing or approving policy
determinations on issues involving the DNA databank (such as whether to expand
collection of samples to all people arrested, or what to do with a comparison sample after
it excludes a person) (9). He said he believes such issues should be handled by the
legislature (10).
McQuillan said NY’s Commission has about 15 members, with a mix of prosecutors,
defense attorneys, police, etc. It does not have legislators (11).
McQuillan said the most contentious issue for NY’s Commission was external
proficiency tests (the practice of testing forensic analysts by inserting fake tests with
known results into their normal case work)—the crime lab people did not want to
implement it, because they didn’t believe it’s possible to slip a phony sample into the
testing process without the analyst knowing it (11).
McQuillan said he thinks his Commission would have authority under the statute to say
what should happen to a DNA sample after it’s been collected from someone and
eliminated that person as a suspect (12). McQuillan said that what happens now is that
elimination samples get put into a local database (not CODIS or the state database,
because the rules of those databases prohibit entry of such elimination samples) (12).
McQuillan did not know who initially authorized the local—which he called “rogue”—
database (12). He said that, in Florida, he thinks suspects are being asked to consent to
putting their profile in the databanks even after they’re eliminated as a suspect (12).
Judge McQuillan hung up the phone, and the Commission members then briefly
discussed his statement (15). Blinka said that the main purpose of NY’s Commission
seems to be setting up accreditation standards, and, given that they have no budget or
staff, they decided to simply mandate existing ASCLD standards (16). Lou Wilcynski
noted that, while NY’s labs weren’t accredited prior to the creation of NY’s Commission,
all 3 WI labs already are (16). The members discussed whether there are other Wisconsin
forensic labs in local police departments, besides the 3 state-run labs, and whether these
local labs are accredited (16-17). The members also discussed how medical examiners fit
in (17-18).
The members discussed state and nationwide procedures for maintaining DNA
databanks—particularly with regard to “rogue” databases that contain samples from
suspects who have previously been excluded by testing (18-20). The members also
discussed the extent to which unknown crime scene profiles are run against the convicted
offender databank and the databank of profiles from other unsolved crimes (21). The
members also discussed whether unknown crime scene profiles are run against the
databases on a one-time basis, or on a continuing basis (21).
The Commission next heard a statement from William Thompson, a professor in the
Department of Criminology, Law, and Society at the University of California-Irvine (22).
Thompson said that he has been involved in exposing some of the scandals that have
occurred in crime labs in other states, such as Houston, TX, and Virginia (22).
He said that forensic science errors are increasingly recognized as a leading cause of
wrongful convictions (23). He said some forensic science techniques are poorly
validated, in that no research has established that the techniques can produce accurate
results (23). Further, he said forensic analysts in some disciplines make statistical claims
that are unsupported by any data (23). As an example, he noted that the National
Academy of Science and National Research Council recently investigated the FBI’s use
of bullet lead analysis—the process of attempting to determine whether a particular bullet
came from a particular box of ammunition—and concluded that the method had no
scientific basis (23). After the investigation, the FBI stopped using the method, which had
been used for over 30 years in 2,500 cases. Thompson said there are similar validation
problems with other methods, such as arson investigation, toolmark examination, and
even fingerprint examination (23).
Apart from validation problems, Thompson said there have been a number of scandals in
which forensic scientists engaged in misconduct (23). He said these scandals have
occurred in a wide variety of laboratories and disciplines, including the most wellrespected such as the FBI (23). He said the scandals are particularly concerning because
they have usually been uncovered by outside entities, such as journalists (23).
Thompson then addressed potential solutions (24). He said industry self-regulation (such
as ASCLD certification) is not an effective answer, because it insulates the forensic
sciences from critics outside the relevant discipline. He said that, if an entire forensic
technique is questionable, the people practicing the technique are unlikely to have the
incentive to regulate it and implement changes (24).
Thompson said that ASCLD accreditation has been ineffective at addressing one of the
most important sources of error, the phenomenon of “observer effects” (when a forensic
analyst’s conclusions are influenced by what the analyst believes to be the expected
outcome—Thompson said this can occur, for instance, when a forensic analyst knows
about other evidence against the suspect and therefore expects the forensic analysis to
also incriminate the suspect) (24).
Thompson said that industry self-regulation also has not addressed scandals in forensic
science. He said he tried to convince the American Academy of Forensic Sciences and
ASCLD to address the scandal in the Houston lab, for instance, but he was unsuccessful
(24).
Thompson said that one solution is a strong criminal defense bar—with adequate
discovery and funding—that can expose forensic science errors (25). Thompson said the
defense bar needs to have timely and complete access to all the data underlying forensic
analysis, as well as access to funds for independent expert witnesses. He suggested the
Commission review the ABA guidelines on discovery (26).
As to forensic science commissions, Thompson said he thinks they’re generally a good
idea, but it’s critical that they’re not dominated by practicing forensic scientists and that
they have strong representation from academic scientists (26).
The Commission then asked Thompson questions (27). In response to a question from
Michael O’Hear, Thompson suggested that a forensic science commission should have
representation from all areas of the criminal justice system, but also from the major UW
scientific departments, and particularly from people with experience in medical testing,
quality control and quality assurance (27). Thompson said he’s intrigued by the Maryland
model, which vests forensic science oversight in the Dept of Health, the same entity that
regulates medical labs (28).
Norm Gahn noted that many industries—including lawyers—self-regulate, and he asked
Thompson why forensic scientists should be any different (28). Thompson said one
reason to end self-regulation is that “business as usual” has not worked, in that forensic
science error has recently played a major role in wrongful convictions. He also said many
industries do not accept self-regulation.
Gahn said that, with respect to DNA, he can’t think of an industry that has had more
guidelines and oversight than DNA testing (29). Gahn listed some of the guidelines and
oversight that have been developed in the DNA field. Thompson said many of the
guidelines are voluntary and have not been adopted. He also said that forensic science
disciplines other than DNA and have not been scrutinized nearly as carefully (29).
Weber asked if Thompson or anyone else has tried to calculate the cost of administering
crime labs in the manner Thompson suggests (29). Thompson said that the first reform he
would implement—blind procedures for interpreting forensic tests—could be
implemented at little cost, because it merely requires changing the sequence of the work
(30). Thompson said that, when he sends a sample to a private lab for testing, he asks the
lab to change the sequence of the work to blind the interpretation, and the labs don’t
charge him any extra. (Thompson further described this at 31). Thompson said another
one of his suggested reforms—external proficiency testing—can be expensive (30).
Thompson said he favors blind testing not because he thinks forensic scientists are
intentionally altering their results, but because research suggests a natural human
tendency to interpret data consistent with prior expectations (31). Blind testing can
eliminate information that creates expectations. In response to a question from Buting,
Thompson said that, in medical and social science research, the person gathering and
interpreting the data does not know the desired result of the experiment, because blind
procedures are required to get funding for research (32). Thompson gave an example of a
study on mating behavior of Australian finches—in which the experimenters use blind
testing—and he said he thinks it’s ironic that blind testing would be required in that
context but not in the criminal justice context, where much more is at stake.
In response to a question from O’Hear, Thompson said no one questions the validity of
DNA testing (33). He said the validity problems exist with the “forensic individuation
sciences,” such as toolmark identification, handwriting analysis, and others (33).
Thompson then hung up the phone, and the Commission began a discussion of the issues
(34).
The Commission discussed the difference between blind testing (in which the analyst
does not know other evidence against the suspect, and, in some cases, does not know
which sample is the suspect’s) and external proficiency testing (in which analysts
unknowingly test fake samples so that a supervisor can evaluate the analyst’s accuracy)
(34). The Commission discussed observer effects (when an analyst’s expectation of the
outcome of a given test may influence the result of the test) (35).
The Commission discussed whether there is subjectivity in DNA testing, for instance
when the sample is old, degraded, or contains little biological material (37).
Fleishauer said that our current Commission is likely not the appropriate entity to
determine specific issues in DNA testing—Smith said the question is whether that
function should be taken up by a forensic science commission (37).
Gahn said that he does not believe there is much subjectivity in DNA testing, and he did
not believe a Commission would effectively review technical issues in interpretation of
DNA results (38).
Buting said that Wisconsin may be ahead of the curve in some respects—for instance,
because Wisconsin’s labs are ASCLD accredited—but he said that’s no reason to rest on
our laurels (38). He said a forensic science commission could perhaps study whether
blind testing would be a good reform for Wisconsin agencies to implement (38).
Blinka said the question is what a forensic science commission would do, and whether it
would extend to issues such as psychological evidence (39). Blinka said that if the
Commission would merely mandate ASCLD accreditation (as NY’s Commission did),
then that’s already been accomplished. He said the same is true of an entity for
investigating allegations of negligence or misconduct—the DOJ already has an agency
assigned to that (40). He said a Wisconsin forensic science commission would need to
take a different approach in order to have a valuable impact (40).
Donohoo noted that a forensic science commission would have to have money for staff in
order to be effective (39-40). He also said that WI is dissimilar from CA and NY because
WI has many fewer labs, and the labs are all state-run (40).
Fleishauer said that one problem may be WI’s wide-open rule for admitting scientific
evidence (40). Findley said a forensic science commission could perhaps provide
guidance to courts in evaluating certain kinds of forensic evidence (40-41). Blinka said a
Commission could perhaps provide guidance on some of the difficult psychological
evidence that comes before courts (41).
Blinka said that two problem are lawyers’ lack of understanding of forensic evidence,
which prohibits them making effective admissibility challenges and cross-examinations
(41-42), and the lack of funding for defense attorneys to hire independent experts (42).
Weber noted that the Judicial Council, which is likely to become more well-funded in the
near future, would be the best entity for addressing rules changes concerning
admissibility of forensic evidence (42-43). Weber also asked whether the two law schools
have programs for educating lawyers about scientific evidence (43). Blinka said the law
schools should take a role, but there should also be better Continuing Legal Education on
this topic (43). O’Hear said a forensic science commission could oversee providing
CLE’s on this topic (43).
Findley said a Commission could perhaps issue advisory papers on forensic techniques or
issues concerning the use of scientific evidence (44).
Gahn said he disagrees with Professor Thompson that methods of forensic analysis are
poorly validated (44). He said the underlying methods are sound—the issue is how to
interpret the results.
Blinka said he wonders whether expert psychological testimony—in sexual predator
cases, for instance—should be considered “forensic science” for our purposes (46).
Malmstadt said he thinks it could, and one issue might be that the defense typically does
not present such evidence, perhaps for funding reasons (47). Buting said he thinks the
quality of defense counsel is a critical issue, and one part of that problem is that the pay
rate for private bar assigned counsel is very low and has not gone up in many years (47).
Buting said most lawyers don’t have enough scientific background to effectively crossexamine an expert (47).
Malmstadt said a forensic science commission could review various techniques and
perhaps produce papers saying whether the method is sound or unsound (and if so why)
(48). Malmstadt said such a commission could potentially serve as a clearinghouse for
resources on certain kinds of scientific evidence (48). Other members agreed that lawyers
often do not have the resources or knowledge to effectively challenge the other side’s
scientific evidence (49).
Donohoo said that litigation over scientific issues is better in the civil system, because the
attorneys have more funding and spend more time (49-50). Buting said it helps that civil
attorneys have depositions and other additional forms of discovery.
The Commission then took a break for lunch (50).
Buting suggested that a forensic science commission could issue guidelines or position
papers on various forensic techniques, and those guidelines could then be used for crossexamination (51). The guidelines wouldn’t affect admissibility, but they would influence
litigation tactics. Findley said this approach might be preferable to the current practice,
because the Commission—a group of experts in the field—would do the research and
analysis that regular attorneys have difficulty doing (51). Findley said this would help
ensure that the use of scientific evidence doesn’t vary as much based on the quality of the
lawyers in a particular case (51). Weber noted the recommendations of a California
Commission similar to ours, and he said that Commission recommended educating
lawyers on forensic techniques (52).
Lichstein asked Wilcynski and Hamblin if they think a forensic science commission
could be useful in making recommendations on ethical/civil liberties issues that arise with
DNA testing, for instance the FBI’s policy on not releasing the identity of a familial cold
hit (54). Wilcynski said he does not believe such a commission would be helpful if its
role was to review methods of DNA testing (54). He said the crime laboratories already
have layers of review for that purpose. Hamblin said he thinks that on certain issues—
such as the possible collection of DNA samples from all arrestees—the legislature could
benefit from the advisory expertise of this Commission, or possibly a forensic science
commission (54). Smith agreed that a forensic science commission could be useful for
giving such opinions (55).
The members discussed whether a forensic science commission could usefully implement
and enforce accreditation standards, given that WI labs are already ASCLD accredited
(56). Blinka discussed how a forensic science commission would make decisions about
the validity of particular techniques (56). Weber suggested that, instead of implementing
and enforcing standards for forensic analysis, a forensic science commission could make
non-binding recommendations (57). Findley said a Commission with accreditation
authority could adopt ASCLD standards with a few important changes, and could also
scrutinize the validity of individual techniques (58). Weber said the principal role of a
forensic science commission that he would support at this point is educational; he said he
is not convinced that a Commission with accreditation authority would improve the
current system (58).
Gahn said that he objected to the proposal of limiting what information law enforcement
provides to forensic scientists (58-59). Findley said that proposal is based on research
about “observer effects”—this research suggests that, when forensic scientists are
provided with incriminating information about the suspect that is not relevant to the
forensic analysis, the forensic scientist may be more likely to reach a conclusion that
incriminates the suspect (59). Buting described a fingerprint study from England
supporting that conclusion (59). Gahn said he thinks forensic analysis improves when the
analyst has more information (59). Findley said forensic analysts need some information,
but other information is unnecessary and can taint the analysis (60). Weber and Findley
agreed that these “observer effects” are more significant with certain techniques—such as
footprint analysis, for instance—than with techniques such as DNA (60).
The members discussed the potential content, form, and effect of a forensic science
commission’s recommendations (60-65).
Weber said that he is unsure whether problems with forensic science are best addressed
through a forensic science commission that publishes guidelines/recommendations, or
through improving the quality of defense advocacy (67). He said that, at this point, he
would not want an administrative agency deciding the admissibility of scientific
evidence—he thinks it would be preferable to improve the quality of defense advocacy
(67). Hamblin said that it might be difficult to compose a Commission that would have
sufficient expertise to consider a very wide range of issues—from arson to psychiatry
(67). He said it might be preferable to encourage academic study of some of the specific
techniques (67).
Findley said that he would not want the forensic science commission to decide
admissibility—instead, it would publish information that would help the lawyers and
judges involved in a case litigate the scientific issues more effectively (68). He said that
the commission members would not need to have specific expertise in every discipline;
rather, they would review whether a particular method comports with basic principles of
science (68). He said the Commission would sometimes review an issue and conclude
that it could not give a definite opinion about the validity of a method. He said guidelines
from such a commission would be preferable to lawyers and judges (most of whom lack a
scientific background) deciding such issues on a case-by-case basis (68).
Fleishauer said that he is unsure whether it would be better for a forensic science
commission to study specific disciplines and make recommendations, or to encourage
more in-depth academic study of the disciplines (69).
Buting said that, like Weber, he would be uncomfortable with a forensic science
commission deciding the admissibility of evidence, but he does not think the commission
would have to go that far—it could merely provide guidelines/recommendations (69).
O’Keefe said that such guidelines often become effectively mandatory (69). The
members discussed the effect of the eyewitness ID statute recently passed by the
legislature (71).
Malmstadt said that a forensic science commission would have to be careful that any
guidelines not be interpreted as mandatory (71). But he said that providing information to
lawyers litigating cases could be useful, and he noted that such a commission would have
the benefit of not being politicized (71).
O’Keefe said there is a difference between providing information and taking a position
(73). Findley said the question is whether we have more faith in a commission of experts
or in juries considering the issues on a case-by-case basis. Fleishauer said that, even if the
commission took a position on a particular issue, the litigants in a case might end up
arguing the issues all over again (73).
Wray said that everyone on our Commission appears to agree that a forensic science
commission could have a valuable educational function, but that the issue of
guidelines/recommendations remains unclear (74).
The members discussed fingerprints, bite mark identification, and other areas (75-78).
Donohoo said he does not think we need a forensic science commission to do
accreditation (80), in part because WI’s crime labs have a good track record. But he said
he thinks it would be helpful for attorneys in criminal cases to have a place to go for
information on forensic science, and he thinks a forensic science commission might be
able to provide that (80).
Buting asked if our Commission should recommend depositions of expert witnesses in
criminal cases, as is the practice in civil court (80). O’Keefe said that would take up too
much of the crime lab technicians’ time, because they would have to testify. Donohoo
said the DA’s offices also would not have the resources (81).
Findley said a more modest proposal would be to require both sides to turn over all data
underlying forensic analysis—under that model, if the crime lab did forensic analysis in a
case, the data and notes would be provided to both sides (82). Donohoo said he’d support
that idea (82). Findley said most DAs will provide access to that information even though
they’re not required to, but there are rare times when a DA won’t (84). Gahn said he
would not be willing to adopt that approach, because the State collected the evidence and
therefore can restrict defense access to it (84-85). Malmstadt said that Findley and Buting
should write up what changes they would suggest to discovery rules, and provide those
suggestions to the prosecution members for discussion (85).
Blinka suggested that, in preparation for the next meeting, all the members should come
to a decision about whether they think a forensic science commission should be created,
what it should do, and how it would operate (87).