New DOJ Accreditation Directive Underscores Importance of ‘Scientifically Valid Evidence’

In a memorandum to her senior staff late last year, U.S. Attorney General Loretta Lynch emphasized that “our justice system depends upon reliable, scientifically valid evidence.”  Her memo cites a policy recommendation for universal accreditation made by the National Commission on Forensic Science, which in May of 2015 unanimously recommended that all Forensic Science Service Providers (FSSP) become accredited. Recently, the AG’s memo was followed by an announcement that the Justice Department will by December of 2020 require department-run forensic labs to obtain and maintain accreditation and require all department prosecutors to use accredited labs to process forensic evidence when practicable.

DOJAdditionally, the department has decided to use its grant funding leverage to encourage other labs around the country to pursue accreditation.

The new policies arose out of recommendations made by the National Commission of Forensic Science (NCFS), which was established to advance the field of forensic science and make suggestions to the Attorney General on how to ensure that reliable and scientifically valid evidence is used when solving crimes.

How accreditation affects forensic work

Accreditation assesses an agency’s capacity to generate and interpret results in a particular forensic discipline and helps to ensure an ongoing compliance to industry and applicable international standards such as ISO 17025 or 17020.  An independent accrediting body (such as ASCLD/LAB) assesses and monitors the quality of the agency’s management system by examining factors that include staff competence; method validation; appropriateness of test methods; calibration and maintenance of test equipment; testing environment and quality assurance data.  Accreditation is one way to increase the quality of forensic work and reducing the likelihood of errors.

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Per the policy recommendation, FSSP’s are defined as “a person or entity that:

(1) Recognizes, collects, analyzes, or interprets physical evidence AND

(2) Issues test or examination results, provides laboratory reports, or offers interpretations, conclusions, or opinions through testimony with respect to the analysis of such evidence.”

Examples of functions that are specifically mentioned in this definition (whether in public or private practice) include those who respond to crime scenes and perform blood pattern analysis, fire investigation and crime scene reconstruction.  Though not specifically called out, crash scene investigators who testify would presumably fall under the same definition.

The Attorney General made the decision to implement several of the commission’s recommendations and the Deputy Attorney General, who serves as co-chair of the NCFS (the other co-chair being NIST), announced their adoption at meeting #8 of the commission.

“The department believes that accreditation is one of the most important tools for ensuring that forensic science is practiced in a reliable, scientifically rigorous way,” said Deputy Attorney General Yates.  “Accreditation provides valuable oversight by ensuring that someone outside the participating laboratory has confirmed that the lab is following their required procedures. We support accreditation and we want to expand accreditation as widely as possible.”

Though department forensic labs at ATF, DEA and FBI are already accredited, the new policy will ensure that, by 2020, those labs will have to maintain that accreditation.  Also by 2020, department prosecutors will be required to use accredited forensic labs when it is practicable.  The Executive Office for U.S. Attorneys (EOUSA) has been directed to develop guidance that will ensure the successful implementation of this new policy in the field.

Impact on grant funding to state, local and tribal law enforcement

As a result of the commission’s recommendations, the Attorney General also has directed two changes to the department’s grant funding in an effort to encourage and support state and local forensic labs in the process of becoming accredited.

First, solicitations for both Edward Byrne Memorial Justice Assistance Grant funding and Paul Coverdell Forensic Science Improvement Grant funding will be re-drafted to make clear that applicants can use this money to seek accreditation, because labs have not always used these funds to seek accreditation.

Second, relevant discretionary grant programs at the Office of Justice Programs will be modified to give preferences to labs that will use the money to obtain accreditation. These applicants will get a “plus factor,” increasing their likelihood of getting the money they need.

One senior law enforcement official who spoke to Leica Geosystems on this topic has speculated that eventually the DOJ may enforce the requirement for accreditation of crime scene units by withholding COPS or JAG grants from agencies that do not get on board with accreditation.

To learn more about how your agency can prepare for accreditation and compliance with the new policies, please contact us.