Deputy Attorney General Rod J. Rosenstein Delivers Remarks at the National Symposium on Forensic Science

Remarks as prepared for delivery

Thank you for that kind introduction, Chris.  Welcome to the National Symposium on Forensic Science.  We are honored to host local, state, and federal prosecutors at the Department of Justice for this event.    

We are proud to co-sponsor this Symposium with the National Association of Attorneys General and the National District Attorneys Association.  Our Department enjoys a strong relationship with your organizations, and we appreciate your support.  

Last year, amid a surge of violent crime and drug overdose deaths, one of our Department’s top priorities was to reinforce the federal government’s coordination with state and local law enforcement.

President Trump considers it imperative for federal prosecutors to support state and local partners and help to reduce crime. Attorney General Jeff Sessions consistently emphasizes that most law enforcement officers work for state and local agencies, and we cannot fight crime effectively unless we are working together.

I worked closely with state and local prosecutors when I served as the U.S. Attorney for Maryland. One of the things that I found most remarkable was we tended to agree on most law enforcement issues, regardless of political affiliation. Crime-fighting is not a partisan endeavor.

 Prosecutors are not simply lawyers who work for the government.  From the perspective of many citizens, we are the government.  People’s interactions with us create indelible memories and may forever influence the way they view both their government and the justice system.

One of the inscriptions on the outer perimeter of this Main Justice building reads, “Justice in the life and conduct of the state is possible only as first it resides in the hearts and souls of the citizens.”

Keeping justice in the hearts and souls of the citizens is part of our job. That gives us a special responsibility to build public confidence by acting with integrity, professionalism, and candor.  Our offices exercise significant power, and we must always endeavor to use that power wisely. It is our duty to enforce the laws and to follow the facts wherever they may lead.  We need to ensure that our prosecutorial decisions are not influenced by politics or personal relationships.

I have served under nine Attorneys General.  On every floor of this building, there are reminders of heroes, mentors and friends who have worked here. I hope that each of you gains similar inspiration from the history of your offices.

In 1985, Attorney General Ed Meese spoke to a group of district attorneys and observed that “the prosecutor occupies a unique position in the criminal justice system.  At the most direct level, his decision making ability, the critical prosecutorial decision whether or not to charge a case or what to charge in a particular case and his advocacy skill . . . determines the real quality of justice in your particular communities.”

In 1940, Attorney General Robert Jackson delivered a speech in this building to the Federal-State Conference on Law Enforcement Problems of National Defense.  The goal was to facilitate cooperation between federal agents and their state and local counterparts.   

Jackson said that the public “looks to the state and federal governments to work together in cooperation.” 

He emphasized that law enforcement officers at all levels share a “grave responsibility,” and he expressed his hope that “this meeting will result in the establishment of some machinery for the interchange of ideas and the general coordination of efforts in the future.”

I hope that same exchange of ideas and coordination of efforts to enhance the responsible use of forensic science in crime-fighting takes place this week.  Forensic science is a critically important tool. 

Dr. Edmund Locard, a French criminalist and forefather of modern forensic science famously remarked, “Every contact leaves a trace.” We refer to that observation as Locard’s exchange principle.

The thesis is that any physical interaction with a given environment both takes from and leaves behind trace elements.  Even small traces of evidence can provide big clues that help solve major cases. 

One example is a case handled by the Department a few years ago.

In the early morning hours of June 20, 2010, three Caucasian men were loitering around a pickup truck in the parking lot of a gas station in Alpena, Arkansas.  A short time later, five Hispanic men arrived in a green 1995 Buick LeSabre. 

After the men fueled their car and paid for their gas, the Caucasian men began shouting racial epithets.  The Hispanic men ignored the insults and drove away.  The Caucasian men then entered the pickup truck and sped after the Buick.

Several miles down the road, the truck caught up to the Buick and repeatedly rammed it from behind.  The driver of the Buick lost control.  The car left the road and flipped over.  It hit a tree and burst into flames.  The victims were badly injured.

The suspects abandoned the truck near the crash site after it ran out of gas.  When law enforcement arrived at the scene, they noticed fresh damage and a green paint smear on the truck’s front bumper.  They identified Frankie Maybee as the owner of the truck.  When questioned by police, Maybee denied that his truck was involved in the attack.

The FBI crime lab examined the green paint smear on the truck’s bumper.  FBI examiners compared information collected from the paint smear to entries in a forensic paint database.  They searched for automobile paint colors used at the GM plant where the Buick was made during the years that model was manufactured.  A database entry established that Buick used a paint consistent with the paint smear on the truck’s front bumper.

FBI examiners also determined that the chemical composition of paint used on Buicks during the years 1994 and 1995 was the same as the paint smear recovered from the front bumper of Maybee’s truck. 

The forensic evidence helped to prove that contact had occurred between Maybee’s truck and the car that carried the five victims.  Maybee and a passenger were the first defendants the Department of Justice ever charged under the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009.

Confronted with the evidence, the passenger pleaded guilty.  At Maybee’s trial, an FBI forensic examiner testified about the chemical and color match between the paint smear on the front bumper of his truck and the victims’ car.

A federal jury convicted Maybee of six counts under the Shepard-Byrd Hate Crimes Prevention Act.  He was sentenced to 135 months imprisonment. That is one example of the use of forensic science in the criminal justice system, and its critical role in any search for objective truth. 

Forensic science is important to our mission, so Attorney General Sessions has made the effective and reliable use of forensic science a high priority.

The Department of Justice practices forensic science at our crime labs and digital analysis centers; we fund forensic science through grant programs at the Office of Justice Programs; and our prosecutors are consumers of forensic science in the tens of thousands of cases we investigate and prosecute each year. 

Last summer, the Attorney General appointed a senior advisor, Ted Hunt, to conduct a review of the Department’s forensic practices and advise leadership on the best steps forward to optimize our use of forensic science.

We are strengthening the reliability of forensic methods, enhancing lab capacities, and increasing collaboration on forensic issues within the Department, across the federal government, and with our state and local partners.

Forensic evidence is most often used by state and local authorities.  That is why we have increased our coordination with law enforcement at all levels.  The renewed focus includes the creation of two new working groups.

The first is the Council of Federal Forensic Laboratory Directors.  It is the only federal interagency working group solely focused on forensic science.  It includes officials from the Department of Justice and other Executive Branch agencies with forensic labs and capabilities. 

The Council will spot trends, share intelligence, identify research needs, and focus on collaborative ways to use forensic science in the fight against crime.  It reports directly to the Deputy Attorney General and includes staff to support the mission.

The second group includes state and local crime lab directors and forensic science researchers.  Their focus will be the forensic technology needs of state and local crime labs.  The group will advise the Department about how we can best support forensic research and introduce new, cutting-edge technologies into America’s crime labs.

The two new working groups will provide the Department with advice about forensic trends and technologies, while helping us better coordinate efforts to reduce violent crime.  Emerging forensic technologies will play a key role in that effort.

In the near future, we expect to see the widespread use of rapid DNA testing in crime labs and police booking stations. The FBI and ATF crime labs already use software that computes the probability that various combinations of individuals are donors to complex DNA mixtures.  The technology is also being used by many state and local crime labs.

More advanced DNA technologies are being developed and will soon be ready to resolve some of our most challenging forensic samples.  One example is “next generation sequencing,” which can distinguish the smallest component parts of mixed DNA molecules from multiple people.

Other technologies like 3-D imaging and the high resolution optical analysis of toolmarks, latent prints, and shoe mark features are now in advanced stages of research and development.  Those tools will enhance the capacity and reliability of forensic pattern analysis in the near future. 

Of course, we can only fully use those technologies and promote the search for truth in American courtrooms if they are admitted in evidence.  Most of you work on the front lines of the criminal justice system, where forensic science has been under attack in recent years.  Some critics would like to see forensic evidence excluded from state and federal courtrooms.

You regularly face Frye and Daubert motions that challenge the admission of routine forensic methods.

Many of the challenged methods involve the comparison of evidence patterns like fingerprints, shell casings, and shoe marks to known sources.  Critics argue that the methods have not undergone the right type or amount of validation, or that they involve too much human interpretation and judgment to be accepted as “scientific” methods.

Those arguments are based on the false premise that a scientific method must be instrument-based, automated, and quantitative, excluding human interpretation and judgment.  Such critiques contributed to a recent proposal to amend Federal Rule of Evidence 702 for cases involving forensic evidence.  The effort stems from an erroneously narrow view of the nature of science and its application to forensic evidence.

Federal Rule of Evidence 702 uses the phrase “scientific, technical, or other specialized knowledge,” which makes clear that it is designed to permit testimony that calls on skills and judgment beyond the knowledge of laypersons, and not merely of scientists who work in laboratories.

Forensic science is not only quantitative or automated. It need not be entirely free from human assumptions, choices, and judgments.  That is not just true of forensic science.  It is also the case in other applied expert fields like medicine, computer science, and engineering.

The astronomer Carl Sagan said that “science is a way of thinking much more than it is a body of knowledge.” His point illustrates the fact that science is an inescapably human endeavor. 

Human observation, comparison, interpretation, and judgment are core components of good science.  They are also key components of good expert testimony in the legal system.  The factfinder — whether a judge or a jury — benefits from expert assistance to place forensic findings in the proper context.

The importance of this interpretive role is embodied in Federal Rule of Evidence 702(a).  It conditions the admissibility of expert testimony on its ability to “help the trier of fact understand the evidence or to determine a fact in issue.”

Interpretation and judgment are essential aspects of what forensic scientists do, and it is important that they properly explain and describe their test results and testimonial conclusions.

That is why we decided to develop Uniform Language for Testimony and Reports.  They contain approved terms, definitions, and bases for the conclusions offered by our examiners. 

They also include guidance about statements that examiners should make and statements they should avoid making when they describe the probative value and the limitations of their conclusions.  Eight new uniform language documents were recently approved and are posted on our website.

Along with the uniform language project, we instituted a program to monitor testimony by employees of our forensic labs and digital entities.  It establishes a framework with concise guidance for assessing the courtroom testimony of our forensic examiners.  Our laboratories and computer analysis centers have used the guidance to develop policies for evaluating the quality and content of testimony offered by their examiners.

The uniform language documents and the testimony monitoring framework are two measures designed to maintain the consistency and quality of our lab reports and testimonial presentations to ensure that they meet the highest scientific and ethical standards. 

As prosecutors, we need to understand the basics of the science, the technology, and the methods we sponsor in court.  A functional level of forensic literacy is essential.  Without it, we can’t fairly present the evidence or defend it from unfair attack.

But one key challenge we face as lawyers is that math and science is not necessarily our first language.  Our stock in trade is words – not equations or formulas. 

Judge Hamilton of the U.S. Court of Appeals for the Seventh Circuit noted the interdisciplinary divide between science and law, and the need  for lawyers to bridge that gap.  He wrote:

“Law must apply itself to the life of a society driven more and more by technology and technological improvements. Judges and lawyers do not have the luxury of functional illiteracy in either of these two cultures. Sometimes . . . effective presentation, cross-examination, and evaluation of expert testimony require lawyers and judges to fill in gaps in their scientific, engineering, or mathematics educations or refresh their memories about them.”

As Judge Hamilton noted, the legal profession is an applied discipline.  Prosecutors need to learn as much as we can about the unique evidence in each case.  That knowledge is critical to the effective representation of our clients.

As you hear about new scientific terms and learn about new forensic techniques, keep in mind that forensic science is a powerful tool that we must understand fully, use responsibly, and defend appropriately, in order to satisfy our ultimate duties as prosecutors – to uncover the truth and pursue justice.

In 1940, Attorney General Robert Jackson said that “the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, … seeks truth and not victims, serves the law and not factional purposes, and … approaches [the] task with humility.”

In summary, Jackson’s timeless advice is to seek the truth, serve the law, and always stay humble and kind.

Thank you for your service to your local, state, or federal government. I am grateful that you joined us this week. I hope you enjoy the symposium.

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Author: August 7, 2018

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