The Texas Forensic Science Commission
Oversight and the road map to admissibility of forensic evidence in Texas
By Lynn Garcia and Leigh Savage
From time to time, the Texas Court of Criminal Appeals issues a decision that causes stakeholders in the criminal justice system to take a collective pause. Michael Morton’s case is a good example of this.1 The San Antonio Four case is another.2 More recently, the Court of Criminal Appeals issued a landmark decision in Ex Parte Chaney, a bite mark case with national significance.3 All of these cases involved convictions for which certain scientific evidence and related testimony was offered at trial. At trial, attorneys and judges believed the testifying scientists or medical experts based their analysis on sound scientific principles. But when viewed today with a better understanding of the limitations of certain forensic disciplines, the testimony offered at trial is unsupportable. In all of these cases, key scientific experts subsequently recanted critical testimony, admitting what they originally said at trial is invalid. Combined, the defendants in these three cases spent more than 100 years incarcerated.
These cases raise important questions for all of us. How can our criminal justice system separate quality scientific evidence and related testimony from subjective speculation, and how can we prevent unreliable and/or invalid evidence from being introduced in the first instance? The answers to these questions are complex, but the Texas Legislature has taken significant steps over the past decade or so—more than any other state in the country—to address these questions proactively. The 79th Texas Legislature took one of its first significant steps with the creation of an oversight body—the Texas Forensic Science Commission—tasked with ensuring the integrity and reliability of forensic science in Texas criminal courts.
The commission is a nine-member panel consisting of seven scientists and two lawyers (one defense attorney and one prosecutor) appointed by the governor that investigates allegations of negligence and misconduct in Texas crime laboratories. The commission also accredits crime laboratories, licenses forensic analysts, and adopts administrative rules with regard to the admissibility of certain forensic analyses. Through its investigative work and administrative rulemaking authority, the commission has addressed many areas of concern and responded to questions about the reliability of certain forensic analyses. The following describes how the commission’s activities affect the admissibility of certain forensic evidence by providing a road map for navigating applicable statutes and caselaw in combination with the administrative rules promulgated by the commission, and further describes the efforts underway both locally and nationally to continue ensuring the integrity and reliability of forensic science in our courts.
Road Map to Forensic Admissibility in Texas
In Texas, we entrust trial attorneys with the responsibility of proffering expert testimony on scientific issues through “… careful and strategic navigation of statutory mandates, caselaw, and rules of evidence …” in the “… oftentimes difficult but crucial world of ever-changing forensic science.”4 Judges are then expected to be the final arbiters of admissibility. But most judges and lawyers do not have a staff of trusted scientific advisers waiting in the wings to whom they can turn for questions regarding the current state of any given forensic discipline. The sub-disciplines of forensic science are diverse and involve various scientific concepts, from chemistry to biology, fluid dynamics, physics, statistics, and beyond. Separating the wheat from the chaff is a challenging process, especially for non-scientists.
Threshold Question: Does Article 38.35 TCCP Apply to the
Texas law requires that certain types of forensic analysis be performed in an accredited laboratory for it to be admis-sible in a criminal action.5 Accordingly, attorneys and judges should first ask whether the forensic science in question is considered forensic analysis under Texas law. Forensic analysis is “a medical, chemical, toxicologic, ballistic, or other expert examination or test performed on physical evidence, including DNA evidence, for the purpose of determining the connection of the evidence to a criminal action”6—if the answer to this threshold question is no, admissibility is determined under Texas Rules of Evidence Rule 702 and related caselaw.7 If the answer is yes, the parties should check for statutory exemptions and administrative rule-based exemptions by the commission.
Texas Code of Criminal Procedure Article 38.35 sets forth certain exemptions to the forensic analysis definition.8 Examples of forensic disciplines exempt from the definition of forensic analysis by statute include latent print examination, tests on breath specimens, and digital evidence.9 The commission also exempts certain types of forensic analyses from the accreditation requirement through administrative rulemaking.10 Examples of disciplines exempt from accreditation oversight through the commission’s administrative rulemaking authority include sexual assault nurse exams, forensic anthropology, crime scene reconstruction, fire scene investigation, and voice analysis.11 A complete list of forensic disciplines subject to and exempt from accreditation requirements, either by the statutory definition of forensic analysis or by administrative authority of the commission, can be found in Texas Admin-istrative Code §§ 651.5, 651.6, and 651.7.12
If there is an exemption for a particular type of forensic analysis, admissibility is assessed under Texas Rules of Evidence Rule 702 and related caselaw. If there is no exemption, the parties should ensure the entity performing the forensic analysis was accredited at the time the analysis was performed.
The following is a quick reference list of disciplines that must be performed in an accredited laboratory. However, note that disciplines may be added to this list over time through administrative rulemaking or statutory changes. Parties should check the commission’s website, txcourts.gov/fsc/, before retaining an expert to perform forensic analysis.
• seized drugs
• toxicology (includes blood alcohol)
• forensic biology
• materials (trace)
Crime Laboratory Accreditation
The commission recognizes accreditation for crime labo-ratories already accredited by certain national accrediting bodies.13 A complete list of Texas-recognized accrediting bodies may be found in Texas Administrative Code Chapter 651.4.14 The commission publishes lists of accredited crime laboratories both in Texas and outside of Texas on its web-site at txcourts.gov/fsc/accreditation/, including the particu-lar forensic disciplines each laboratory is accredited to perform.
Forensic Analyst Licensing
As of January 1, 2019, Texas law requires forensic ana-lysts performing forensic analysis in accredited crime laboratories to be licensed by the commission.15 If a forensic analyst is performing a forensic analysis in a discipline subject to accreditation, the forensic analyst must be licensed by the commission to perform the type of forensic analysis in question.16 A complete list of licensed forensic analysts and their license status, including licensed disciplines, may be found by visiting the commission’s website at txcourts.gov/fsc/licensing/licensees.
Recent CCA Decision: Rhomer v. State
In its January 30, 2019, opinion in Rhomer v. State, the Court of Criminal Appeals discussed the admissibility of certain forensic evidence.17 Specifically, the court considered whether a particular type of accident reconstruction expert could testify about a specific type of accident reconstruction in which he had no formal training and whether accident reconstruction should be governed by tests in Kelly v. State or Nenno v. State.18 Ultimately, the Court of Criminal Appeals affirmed the 4th Court of Appeals in San Antonio decision applying the Nenno test in its evaluation to determine that (1) the field of accident reconstruction was a legitimate one, (2) the subject matter of the expert’s testimony was within the scope of that field, and (3) the expert’s testimony properly relied upon and utilized the appropriate principles in the field.19
In a concurring opinion, Judge Barbara Hervey emphasized the importance of Texas’ exclusionary rule for forensic evidence pursuant to Texas Code of Criminal Procedure Article 38.35 as a first step in any forensic admissibility determination.20 This concurring opinion is extremely helpful to stakeholders in describing the various issues that should be considered when admitting forensic evidence.
Rules of Evidence and Related Caselaw
The Texas Rules of Evidence and related caselaw still apply in admissibility determinations with regard to forensic issues. When a type of test is not considered a forensic analysis under Texas law but there is still expert testimony, Kelly applies for the “hard sciences” and Nenno applies for the “soft sciences.”21 When a forensic discipline has an exemption, either by statute or administrative rule of the commission, Kelly and/or Nenno must be applied depending upon the type of analysis. Indeed, even where there is an accredited discipline and a licensed analyst, admissibility hearings may still be necessary for cases in which a certain forensic method is new or has not been addressed by courts, or where other legitimate admissibility issues are raised by the parties.
National Forensic Science Initiative
The National Institute for Standards and Technology, or NIST, has gathered a group of forensic practitioners, attorneys, judges, statisticians, and other professionals to develop consensus-based standards in the area of forensic science. Texas has many representatives from law enforcement, crime laboratories, and other areas of forensic science. To date, 22 forensic science standards have been posted to the national registry of standards. Recently, the commission partnered with NIST to review and adopt the Organization of Scientific Area Committees for Forensic Sciences, or OSAC, standards and guidelines. Some may be adopted as is and others may be modified as needed to suit the needs of Texas stakeholders. OSAC standards may be found by visiting the registry at nist.gov/topics/organization-scientific-area-committees-forensic-science/osac-registry.
Local Forensic Science Initiative
The commission is dedicated to assisting members of the criminal justice community with the challenging forensic issues that arise in criminal cases. Currently, commission staff is beginning to work with subject matter experts on a forensic bench book that will be updated regularly and available to judges and attorneys. By offering this resource, the commission hopes to assist the criminal justice community in: (1) understanding foundational scientific principles, (2) identifying unsettled areas/areas of debate within a discipline, and (3) identifying red flags in an evaluation of scientific evidence that may come before the court.
As lawyers, navigating the ever-changing world of forensic science as it collides with our legal system is understandably daunting. The commission and its staff are committed to serving the legal community by ensuring it is equipped with the right resources to prevent the unreliable or invalid forensic evidence that leads to wrongful convictions from entering Texas courtrooms.
LYNN GARCIA serves as the Texas Forensic Science Commission’s director and general counsel. She assists the commission with investigations, provides legal advice, tracks developments in legislation relevant to the FSC’s mission, ensures compliance with the Open Meetings Act and Public Information Act, and represents the commission at conferences and stakeholder meetings.
LEIGH SAVAGE serves as the Texas Forensic Science Commission’s associate general counsel. She manages the commission’s crime laboratory accreditation and forensic analyst licensing programs, advises the commission on the interpretation and application of commission regulations and state laws, and serves as a liaison to crime laboratories and forensic analysts subject to the commission’s jurisdiction.