Memo: Professional Responsibilities in the Era of Strategic Litigation
TO: The Boards, Members, and/or Representatives of the Following Organizations
Consortium of Forensic Science Organizations
American Society of Crime Laboratory Directors
American Academy of Forensic Sciences
American Board of Criminalistics
Association of Firearm and Tool Mark Examiners
Association of Forensic Quality Assurance Managers
Association of Trace Evidence Examiners
International Association for Identification
International Symposium on Human Identification
National Association of Forensic Science Boards
National Association of Medical Examiners
Organization of Scientific Area Committees for Forensic Science
Society of Forensic Toxicologists
Regional Associations of Forensic Scientists (NE, MW, NW, S, and SW)
FROM: John M. Collins
The purpose of this memorandum is to raise awareness across the forensic science community about an urgent development that warrants the consideration and potential action of your organization, given its importance to the efforts of our criminal justice system to apply and evaluate scientific evidence in criminal litigation. Below, I will outline the nature of the problem as my own research and experience have led me to understand it, and I will present a defensible strategy that will allow the forensic science community to more effectively address what is happening and mitigate its threat.
Granillo v. State (Hawaii)
As we recently witnessed in Hawaii, a legal enterprise known as strategic litigation is growing in its influence and impact. The Hawaii Supreme Court vacated a thirty-six-year-old kidnapping and sexual assault conviction in Granillo v. State and ordered a new trial, holding that both the hair and fiber testimony given at the original 1990 trial exceeded what the underlying science could support. A 2017 Department of Justice review had previously evaluated the trial testimony on hair evidence and opined that it exceeded scientific bounds. The court extended that same conclusion to the fiber testimony by isolating individual phrases from the FBI examiner's trial testimony — such as "microscopically identical" and "consistent with" — and contrasting each phrase against the findings of the 2009 NRC Report and 2016 PCAST Report.
In my professional judgment, this illustrates a problem with how post-conviction courts increasingly evaluate decades-old forensic testimony: parsing individual words and phrases in isolation, rather than judging the totality of the question-and-answer exchange, to include the beliefs a jury was reasonably justified in forming from that exchange as a whole. In Granillo, no new laboratory testing of the physical evidence was conducted at any stage of the case. The court's analysis concerned only whether specific phrasing used at trial, examined apart from its full context, exceeded the limits of the underlying science.
Granillo v. State has significance for me personally. In 2015, I accepted an invitation from the executive leadership of the FBI Laboratory to speak to a joint gathering of its scientists. The purpose of my presentation was to encourage the audience not to give up on their mission and tradition of practicing sound, responsible forensic science. At the time, there was growing evidence that the aforementioned review by the Department of Justice was being compromised by innocence activists, and because the laboratory’s decision-makers seemed to have so little influence over the tone and methodology of the ongoing review, it angered and demoralized many within the laboratory. My goal was to help them understand how the innocence network operates, how it gains leverage over government agencies, and why it was so important that they press on in spite of it.
There is much to contest about the Granillo ruling, but it is instructive to note that it ordered a new trial without declaring or suggesting that the defendant was innocent. But as happens in cases like this, that distinction was not preserved in subsequent public discussions, and the gap between what courts actually decide and how it is characterized by advocacy groups and journalists is precisely where this unique threat to the integrity of our criminal justice system lies.
Strategic Litigation
For over three decades, the innocence movement has relied heavily on DNA testing to help answer the question that should govern any post-conviction activity: is this person actually innocent of the crime for which they were convicted? DNA analysis became central to post-conviction proceedings because of its ability to bring new and relevant information to previous convictions that were later called into question. Perhaps more importantly, innocence activists were traditionally motivated, at least in principle, by clear and compelling evidence suggesting the possibility of factual innocence. It was, and has been, this honorable motivation that gave the innocence movement such credibility.
Under the strategic litigation framework, however, evidence of factual innocence is no longer a governing factor. Faced with the scarcity of past convictions for which DNA evidence can potentially reveal new evidence, strategic litigators seek to produce exonerations based primarily on their subjective notions that past forensic testimony was “junk science” or “invalid.” In doing so, their strategy is to:
disparage entire categories of forensic evidence
claim that innocent people were convicted based on that evidence
aggressively pressure justice authorities to reconsider past convictions, even if it requires an emotional public campaign
Announce that the client was “wrongfully convicted” for a crime they “didn’t commit”
Unfortunately, isolated instances in which forensic testimony was later shown to be inaccurate or highly misleading have, indeed, happened. Those instances warrant corrective action whenever they are suspected or identified. But a subjective accusation of malpractice is not proof of a professional failure on the part of a forensic expert, nor is it proof of a defendant’s innocence.
The latter is the more serious problem that this memorandum seeks to address. Innocence activists routinely conflate two distinct questions:
whether a forensic method or associated testimony was presented in court with appropriate scientific integrity, and
whether a specific defendant is factually innocent
Strategic litigation depends on exploiting the inherent misunderstandings that result from this conflation. In doing so, the interests of individuals who were truly convicted erroneously are harmed. But the reason for adhering to this strategy is clear; challenging forensic techniques in the abstract is much less costly and time-consuming than reanalyzing evidence that may be decades old.
Principles for Guiding Forensic Science Professionals and their Organizations
In this new era of strategic litigation, all major forensic science organizations must be prepared to establish guardrails that help to inform and protect their members, our justice system, and the public. This includes demanding honesty about the true nature and applicability of forensic evidence in post-conviction activities.
Publicly recognizing and honoring the following ten principles, and reinforcing them through organizational policies, statements, and codes of professional responsibility, is likely to help mitigate the adverse impacts of strategic litigation in the years to come:
1. All forensic evidence is circumstantial and therefore requires the interpretation, scrutiny, and due diligence of all interested parties. On its own, forensic evidence has no capacity to determine the guilt or innocence of a defendant. Instead, it exists to support or challenge such determinations.
2. There is not, and never has been, one perfect way for an expert witness to testify. The post-conviction review of past expert testimony must consider the totality of the question-and-answer exchange through which the testimony was elicited. Parsing testimony for imperfect phrasing fails to reveal what the trier of fact was justified in believing.
3. Forensic scientists serve two critical roles in our criminal justice system. The first is to practice sound, responsible, and ethical science such that the results of forensic tests are as accurate and complete as possible. The second role is that of a consultant, helping investigators, lawyers, and courts understand what the results mean. These two roles are both vital to the criminal justice system, but they require different competencies and carry different but related responsibilities. Both roles must be respected and fully understood. (See Valid Comparisons)
4. A criticism or concern about any past forensic testimony does not, in itself, constitute or equate to a claim of factual innocence, and should never be construed as such.
5. Competent and responsible expert witnesses testify with the expectation that litigators in the courtroom will do their due diligence, posing questions that help to render expert testimony as useful and understandable to the trier of fact as possible.
6. In the context of post-conviction litigation, reanalysis of forensic evidence or the analysis of newly available evidence is far superior to sweeping rhetorical criticisms of forensic techniques. Codes of professional responsibility should demand that lawyers refrain from using terms such as “junk science” and “wrongfully convicted” unless such terms are justified by the facts.
7. Codes of professional responsibility should prohibit any lawyer from publicly claiming that a convicted defendant is factually innocent when no formal determination to that effect has been made by a judicially legitimate trier of fact. Moreover, it should be considered a serious violation of professional responsibility for post-conviction litigators to lie about past forensic evidence when attempting to persuade witnesses from previous trials to recant their testimony. In seeking a recantation of past testimony, it is equally unethical to lead past witnesses to believe that convicted defendants are factually innocent when no such judicial determination has been made.
8. Forensic science organizations and their members should refrain from expressing formal, professional opinions about the guilt or innocence of a specific defendant. It is the role of forensic scientists to practice ethical and reliable science, not to seek a specific judicial outcome being pursued by one of the litigants.
9. Forensic science organizations should not permit their scientific platforms to be used, without appropriate context or counterbalance, to advance nonscientific claims as though they carry the weight of established science. Advocates for post-conviction relief are entitled to respect and a fair hearing, but they are not entitled to a scientific platform, and any opportunity extended to them should be clearly framed as advocacy rather than science.
10. It is the responsibility of forensic science professionals to be objective, dispassionate voices for the truth, but this does not in any way obligate them to dignify, accept, or support any inflammatory or unsubstantiated claims uttered by innocence activists or strategic litigators.
In support of the above principles, it is further recommended that the following practical measures be implemented immediately:
a. For the planning and hosting of conferences, establish programmatic requirements ensuring that sessions addressing post-conviction advocacy or political rhetoric are paired with practitioners offering an independent methodological perspective, and that advocacy or legal commentary is clearly distinguished from scientific content.
b. Encourage all conference speakers to avoid making claims about the guilt or innocence of defendants. This is an abuse of the platform provided by a scientific organization.
c. Require internal review before a forensic organization's name, publications, or leadership is cited in support of a specific post-conviction claim, so that association with a case reflects a deliberate institutional decision rather than an inference drawn from the conference attendance or published opinions of post-conviction advocates.
d. Provide members who are individually affected or disparaged in post-conviction activities with organizational guidance and professional support so that they are not left to navigate that exposure alone.
e. Provide members access to legal consultation when they believe they have been defamed by false factual claims made against them individually and consider legal action in cases of demonstrable defamation of a named member. This should not apply to general criticism of a forensic discipline or advocacy seeking to secure post-conviction relief, which should be met with scientific and professional engagement rather than litigation.
f. Encourage forensic experts in the United States and their leaders to develop and follow procedures and policies that give defense counsel easier and more efficient access to forensic expertise. The “defense interview” model adopted by some laboratories shows promise. It is a gesture that will go a long way toward demonstrating the objectivity of honorable forensic experts and reducing any resentments and suspicions about their motives.
Valid Comparisons (2026)
The issues I’ve addressed in this letter are explored in more detail in my recent book, Valid Comparisons, a writing project that opened my eyes to the potential harm that strategic litigation is likely to inflict on the public and its justice institutions if not dealt with proactively. Forensic professionals and post-conviction advocates should all agree that every legal and judicial proceeding must be guided by our mutual responsibility to speak and seek the truth. Strategic litigation, as currently practiced, too often substitutes the disparagement of a forensic method for the harder work of establishing fact — and that substitution itself contaminates the truth-seeking process that our justice system depends on.
Concluding Comments
It is with humility, caution, and sincere concern for the future of forensic science in the United States that I've presented these thoughts and recommendations. Although I have a decades-long record of trying to mitigate the confusion exacerbated by innocence activists, I have also been a public advocate of scientific scrutiny and self-correction. Indeed, our profession should welcome scrutiny of any technique, especially those that have a history of being misapplied in the courtroom. That scrutiny, however, should never proceed by way of rhetorical or political gamesmanship. It must instead proceed from good scientific or legal process, verified by whatever legitimate means are available.
Please be reminded that your organization has a right and responsibility to demand respect for the work of honest, hardworking forensic experts in the United States and to ensure that unbridled activism or advocacy does not do undeserved harm to their reputation or effectiveness. To reiterate an important principle shared above, your organization has no obligation to “dignify, accept, or support any inflammatory or unsubstantiated claims uttered by innocence activists or strategic litigators,” just as it would not for those uttered by investigators and prosecutors.
The vital responsibility of any forensic science organization is to enable and empower its members to practice reliable, ethical science and to serve as trustworthy consultants who help our criminal justice system understand what their scientific findings mean. Consider me available to your organization as it navigates and prepares for a world in which strategic litigators are likely to challenge past verdicts with greater frequency and aggressiveness. Left unchecked, they will undercut the authority and effectiveness of judges and juries entrusted with deciding criminal cases happening daily all across the United States – and I think you’ll agree that this is not something we as forensic science professionals should accept or enable.
Resources
Granillo v. State, No. SCWC-22-0000740 (Haw. July 15, 2026). https://law.justia.com/cases/hawaii/supreme-court/2026/scwc-22-0000740.html.
Collins, John M. Valid Comparisons: The Forensic and Judicial Examination of Stochastic Patterns (Brighton, MI: Critical Victories, 2026). https://validcomparisons.com
Collins, John M. Crime Lab Report: An Anthology on Forensic Science in the Era of Criminal Justice Reform. London: Academic Press, 2019. https://crimelabreport.com
Collins, John M. and Jay Jarvis, "The Wrongful Conviction of Forensic Science," Forensic Science Policy & Management: An International Journal 1, no. 1 (2009): 17–31. https://doi.org/10.1080/19409040802624067.
Collins, John M. and Jay Jarvis, "Contextual Contamination of Forensic Evidence by Post-Conviction Litigators," Institute for the Advancement of Criminal Justice Journal (2009): 7–20, available at: https://static1.squarespace.com/static/66c29a291886ab0eea4b841d/t/698255c00e6d6d25c1108949/1770149312629/2009%2C+Contextual+Contamination+-+IACJ+Exerpt.pdf
