The September meeting opened with the Forensic Science Statewide Body Subcommittee (FSSB). They have been working to determine where the FSSB is best housed within the state government. They outlined three areas of concern they wanted to address:
Authority and Mandates;
Potential Conflicts; and
Separation of Powers.
They examined the following models for guidance:
Michigan Commission on Law Enforcement Standards (a training body within the Michigan State Police (MSP));
The Michigan Indigent Defense Commission;
The Legislative Corrective Ombudsman; and
The State Appellate Defender’s Office.
From their review, they were able to provide three recommendations:
The FSSB should be housed within the Executive Branch agency;
The FSSB should not be housed within the MSP (because of the perception that they will lack any independence); and
They should use similar language to the MIDC Act setting out the body’s independence:
MCL 780.985(2): The MIDC is an autonomous entity within the department. Except as otherwise provided by law, the MIDC shall exercise its statutory powers, duties, functions, and responsibilities independently of the department. The department shall provide support and coordinated services as requested by the MIDC including providing personnel, budgeting, procurement, and other administrative support to the MIDC sufficient to carry out its duties, powers, and responsibilities.
The FSSB has also been working on recommendations for who the actual members of the FSSB should be. Their consensus was that it needed to be science heavy and not full of lawyers and judges (who may be too agenda focused instead of focused on the advancement of science). The list they came up with included the following (with staggered four-year terms):
Four Forensic Science Practitioners
One Forensic Medical Examiner
Two Academics (at least one with DNA expertise)
One Retired Judge
One Defense Attorney or Public Defender
One Member of the Public
The FSSB also gave an overview of its principles and goals:
Accreditation of Laboratories – Any laboratory that handles forensic analysis must be accredited within 2 years after the statute becomes effective and they will verify these accreditations have been obtained. Any lab that cannot meet the timeframe must petition the TFFS for an extension.
Registration of All Non-Lab Members – The FSSB will be responsible for registering forensic experts and confirming they meet all forensic-specific requirements. A public database will be maintained that includes an expert’s registration status, any cases where they have testified, and any misconduct determined by the FSSB.
Complaints, Reports, and Investigations – The FSSB will design a system of reporting for any negligence, misconduct, or non-conformance. Reports and complaints may be made by:
Any member of the TFFS
Any stakeholder in the criminal legal system, including any person who has been prosecuted.
Notification – the FSSB will develop and implement a notification procedure for any investigation conducted. Notifications will go to all criminal legal system stakeholders and any persons convicted in the criminal case where the misconduct/negligence occurred along with their personal attorney.
Education and Information- the FSSB is responsible for providing information in the developments of forensic science, providing information on education and training options, and collecting information regarding laws, rules, policies, and practices on forensic science.
Recommendations for Appropriations, Resources, Best Practices, and Authority to Designing a System of Grants – the FSSB will assess system capabilities and needs and work to reduce backlogs and respond to any developing issues that arise while striving for and encouraging best practices.
After a short break, the meeting turned to The Forensic Science Practice Subcommittee (FSPS). They have had seven main objectives that they have been working on for the past several months which were also discussed in the last meeting. Jeff Nye, who works in the forensic science division of the MSP, gave updates in each category:
Conduct a statewide survey of forensic science service providers, which has been completed (and was largely discussed at the last meeting, a recap of that meeting can be found here). They also want to conduct a survey of practitioner service providers, which they plan to send out soon.
Determining how to address independence within law enforcement agencies and this objective is still in the works. They are hoping to have bias training to help mitigate the issue and set up hiring practices based on the survey results they have received.
Access to Forensic Science Laboratories – The FSPS is focusing on requesting additional analysis, access to experts by stakeholders, and the concept of separating lab scientists/examiners from potentially biased information from investigators (note that the FSPS has also discussed the complexity of limiting information to laboratory staff).
Determining the Best Practices for Quality Control and Compartmentalization, - specifically blind proficiency testing, sequential unmasking (defined as the process of releasing case details only as they are needed in a manner that would limit the potential for bias), and an accreditation requirement for all service provides.
Focusing on the Disclosure of Negligence/Misconduct. The FSPS currently has several discussions underway relating to this objective and are recommending that the TFFS develop a model policy for reporting negligence/misconduct to the employer for internal investigation and disclosure to the accrediting body to keep track of patterns of specific individuals. They also recommended that a model policy be created relating to methodologies used in laboratories and quality disclosures that are not based on negligence or misconduct.
Implementing Training Requirements - the subcommittee recommended a continuing education program of a minimum of 8 hours annually and also that ethics and bias training be provided annually.
Need for Resources – The FSPS recommended that a detailed needs assessment be conducted annually with forensic science service providers across the state, that grants be provided to fill any resource needs, and to improve the capacity, quality, and scope of testing. The FSPS is also considering a recommendation around university funding to train potential examiners, so they are prepared for work as a forensic science service provider.
After lunch, everyone turned to the recommendations from the Legal Systems Subcommittee (LSC). They were tasked with addressing the lack of awareness of forensic science issues by lawyers, judges, and juries.
Education - The LSC recommended that attorneys be mandated to have continuing education, including at least one course in forensic science evidence.
Expert Testimonies - Improving the quality of Daubert hearings*, specifically setting evidentiary standards, clarifying the burden of proof at Daubert hearings, and reinforcing the role of trial judges. *Daubert hearings are held in open court to allow for the examination of an expert witness in order to develop testimony for purposes of assessing its admissibility in court.
Evidence and Discovery – It was recommended that a section addressing the discovery of DNA results and information be added to the Forensic Science Evidence Rule 6.203.
Jury Instruction – The recommendation was that expert witness instruction statements should be replaced with, “No instruction regarding expert witness testimony shall be given.” The reason is that studies have revealed the jury tends to believe the judge is vouching for an expert witness, thereby giving the witness more credibility than intended. Also, in a similar vein, an anti-CSI Instruction should be added by making a statement, such as, “No instruction should be given concerning the adequacy of the police investigation or the so-called ‘CSI effect*.” *The CSI effect describes how jurors may come to criminal trials with unrealistic forensic science expectations resulting from what they have seen on crime-based TV shows.
The TFFS then spent the last hour addressing public comments from some private citizens, members of the court system, and non-profit organizations, such as innocence projects, who attended the meeting remotely. These comments, questions, and suggestions will be addressed in Part 2, which is coming soon!
There was quite a bit of information covered in this meeting and several updates were provided since the last meeting. The members adjourned with a clear list of subcommittee responsibilities to work on before the next meeting. The full video can be found here and the next meeting is scheduled for November 1, 2022 at 9:30 AM. For those wishing to attend in person, it will be held at the Michigan State Police Headquarters located at 7150 Harris Drive, Dimondale, Michigan. Those desiring to attend virtually may do so with the following link: https://miscao-sc.zoom.us/j/97078370642.