115
AMERICAN BAR ASSOCIATION
ADOPTED BY THE HOUSE OF DELEGATES
AUGUST 3-4, 2015
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, territorial, local and tribal judges.
REPORT
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 evidence1. Since the report has
been issued, Congress has not yet taken adequate 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, the American Association for the Advancement of Science
(AAAS), and the National Institute for Standards and Technology (NIST) should be the
entities 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
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/228091.pdf.
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
balanced, first-rate forensic science curriculum throughout the legal profession in a costeffective fashion.
Funding for the NAS, AAAS, and NIST 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 2015
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GENERAL INFORMATION FORM
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, 2015.
3. 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.
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
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testimonial and non-testimonial experts is critical to the reliability and fairness of the
criminal justice system.
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.
11. Contact Name and Address Information. (Prior to the meeting. Please include name,
address, telephone number and e-mail address)
Prof. Barry C. Scheck
Cardozo School of Law Yeshiva University
40 Worth St
Rm 701
New York, NY 10013-2994
bscheck@innocenceproject.org
(212) 364-5390
Prof. Jules Epstein
Widener University School of Law
3800 Vartan Way
Harrisburg, PA 17110
jepstein@krlawphila.com
(302) 477-2031
Dr. Peter Koelling
Director/Chief Counsel, Judicial Division
American Bar Association
19th Floor
321 N. Clark St.
Chicago, IL 60654
Peter.Koelling@americanbar.org
(312) 988-5687
12. Contact Name and Address Information. (Who will present the report to the House?
Please include name, address, telephone number, cell phone number and e-mail address.)
Hon. David Waxse, Judicial Division Chair
U.S. Magistrate Judge
Room 603
U. S. Courthouse
500 State Avenue
Kansas City, KS 66101
Judge_Waxse@ksd.uscourts.gov
(913) 735-2277
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EXECUTIVE SUMMARY
1.
Summary of the Resolution
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.
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