Abstract
The five preceding papers in this series described the structure of foundation testimony, the distinction between corroboration and sequence, the fit between the testimonial line and the risks it addresses, the institutional costs of confrontation, and the gap between what the public sees of foundation and what it understands. This paper gathers the practical consequences of those analyses into recommendations addressed to three sets of actors: forensic laboratories and the agencies that collect evidence, courts, and legislatures. The recommendations follow four governing principles: reduce the cost of assurance rather than assurance itself; strengthen single-witness links with independent corroboration; address the risks that confrontation does not reach; and make foundation intelligible to those who must evaluate it. The paper concludes with a standardized stipulation framework, model juror instructions, and an assessment of implementation priorities.
1. Introduction and Governing Principles
White Paper 4 proposed a criterion for evaluating measures that reduce the burden of foundation testimony. A measure may lower foundation load by reducing the cost of each witness or the number of links in a chain while preserving the assurance the chain provides, or it may lower foundation load by removing accountable witnesses without replacing what they supplied. The first kind of measure lowers cost without lowering protection. The second transfers cost from institutions to defendants.
That criterion is the first of four principles governing the recommendations below.
Principle 1: Reduce the cost of assurance, not assurance itself. Measures that save analyst time, court time, or laboratory capacity are recommended where they preserve the accountability and corroboration that foundation testimony provides. Measures that save time by removing that accountability are not.
Principle 2: Strengthen single-witness links with independent corroboration. White Paper 2 showed that chains of custody and analysis are sequences of single attestations, each only as strong as its own witness, and that the chain as a whole weakens with length. The most effective improvements add independent confirmation at particular links, such as physical seals, dual documentation, blind verification, and retestable samples, rather than adding witnesses who restate what others have said.
Principle 3: Address the risks that confrontation does not reach. White Paper 3 showed that confrontation of analysts is well suited to fabrication and contextual bias but poorly suited to instrument error, clerical error, and systemic institutional error, and that it does not reach record evidence at all. Those risks require other instruments: accreditation, proficiency testing, disclosure, and access to underlying data.
Principle 4: Make foundation intelligible. White Paper 5 showed that foundation is either invisible or misread by jurors and the public. Measures that explain what foundation witnesses establish, and what record certifications do and do not guarantee, allow those who evaluate evidence to do so on accurate terms.
The recommendations are numbered by the actor to which they are principally addressed: L for laboratories and collecting agencies, C for courts, and G for legislatures and other governing bodies. Each recommendation identifies the principle it serves and the paper in which its rationale is developed.
2. Recommendations for Laboratories and Collecting Agencies
L1. Seal evidence in tamper-evident packaging at the point of collection.
Principles 1 and 2. White Paper 2, Section 6.2.
Evidence should be sealed at collection in packaging that reveals any opening, with the seal bearing the identifier of the person who applied it and the date. The analyst who opens the package should document the condition of the seal before opening. An intact seal corroborates the account of every custodian between sealing and opening, independent of their own testimony, and allows those intermediate links to be established by physical rather than testimonial means.
This practice is already standard in many agencies. The recommendation is that it be universal, that the condition of the seal on opening be recorded as a required field in the laboratory’s case record, and that the seal’s condition be reported with the result.
L2. Document custody transfers from both sides.
Principles 1 and 2. White Paper 2, Section 6.1.
Each transfer of custody should be recorded independently by the releasing and the receiving party, preferably in an electronic system that generates timestamps for both events and records the identity of each person. Agreement between the two records corroborates the transfer. Disagreement identifies a link requiring explanation. Dual documentation also permits custody to be established in many cases by records rather than by a procession of custodians, reducing the testimony required without reducing assurance.
L3. Concentrate critical analytical stages or provide independent technical review.
Principles 1 and 2. White Paper 4, Section 4.4.
Laboratories whose workflows divide analysis among several personnel should adopt one of two practices for results likely to be offered at trial. The first is to assign a single analyst to perform or directly observe every stage on which the conclusion depends. The second is to assign a second qualified analyst to review the raw data independently and reach an independent conclusion without relying on the first analyst’s interpretation.
The first practice reduces the number of witnesses required. The second provides a qualified witness who can testify to an independent opinion if the original analyst departs, and adds corroboration at the interpretive stage. After Smith v. Arizona, the second analyst’s opinion must not depend on the truth of the first analyst’s statements if it is to stand on its own.[1]
L4. Adopt blind verification and context management.
Principles 2 and 3. White Paper 2, Section 6.4; White Paper 3, Section 6.2.
Where a discipline requires verification of an examiner’s conclusion, the verifying examiner should work without knowledge of the original conclusion. More generally, laboratories should limit examiners’ exposure to case information not needed for the analysis, and should document what information the examiner received. Sequential unmasking, in which examiners analyze evidence from the scene before comparing it to reference samples from a suspect, has been proposed as a practical method of reducing contextual influence.[2] Blind verification converts a review into genuine corroboration; context management addresses the adversarial-orientation risk at its source rather than relying solely on cross-examination to expose it.
L5. Preserve retestable portions where the sample permits.
Principle 2. White Paper 2, Section 6.3; White Paper 4, Section 2.1.
Where a sample is large enough to divide, laboratories should retain a portion sufficient for independent retesting. Retesting by a second laboratory is the strongest available corroboration of an analytical result. Retained portions also allow a result to be reproduced when the original analyst is unavailable, reducing the risk that departure renders evidence unusable. Where testing will consume the entire sample, the laboratory should document that fact before testing and notify the parties where practicable, so that the defense may seek to observe the analysis or propose an alternative.
L6. Maintain and disclose error and corrective action records.
Principle 3. White Paper 3, Sections 7.2–7.4.
Laboratories should maintain records of instrument calibration and maintenance, proficiency test results, contamination events, and corrective actions, and should make such records available to the parties in cases where results are offered. These records address instrument, clerical, and systemic errors that cross-examination of an individual analyst is unlikely to reveal. Where a corrective action identifies an error that may have affected results in other cases, the laboratory should notify prosecuting authorities, who bear disclosure obligations with respect to information favorable to the defense, including impeachment information.[3]
L7. Seek and maintain accreditation.
Principle 3. White Paper 3, Section 11.2.
Laboratories should be accredited to recognized international standards for testing laboratories, supplemented by discipline-specific requirements.[4] The National Research Council recommended mandatory accreditation of forensic laboratories, and the National Commission on Forensic Science subsequently recommended universal accreditation.[5] Accreditation addresses systemic error by subjecting methods, validation, and quality procedures to external review.
L8. Pursue administrative independence from law enforcement.
Principle 3. White Paper 3, Section 6.2.
The National Research Council recommended that forensic laboratories be removed from the administrative control of law enforcement agencies.[6] Where full independence is not feasible, laboratories should establish internal structures that separate case management from analysis, so that examiners receive requests and evidence without investigative narrative. Independence addresses the adversarial-orientation risk structurally, complementing the procedural safeguard that confrontation provides.
3. Recommendations for Courts
C1. Adopt scheduling practices that minimize analyst waiting and wasted travel.
Principle 1. White Paper 4, Section 4.6.
Courts should set time-certain appearances for forensic witnesses where possible, permit analysts to remain on call at the laboratory until needed, coordinate multiple cases involving the same analyst, and require the parties to confirm, shortly before trial, whether the case will proceed and whether the analyst’s testimony will be required. These measures reduce the cost of confrontation without affecting its value.
C2. Permit remote testimony by consent and specify the showing required over objection.
Principle 1. White Paper 4, Section 4.3.
Courts should adopt rules permitting forensic analysts to testify by two-way video when the defendant consents. Where the defendant objects, rules should specify the case-specific showing of necessity required, consistent with Maryland v. Craig and the decisions applying it.[7] Clear rules allow the parties to use remote testimony where both find it acceptable while protecting the defendant’s right to physical presence where it is asserted.
C3. Require disclosure of the full analytical chain before trial.
Principles 2 and 3. White Papers 1 and 2.
Courts should require the prosecution, in advance of trial, to identify each person who performed a stage of the analysis on which a forensic result depends, each custodian of the evidence, and the method by which each link will be established, whether by testimony, stipulation, certification, or physical evidence such as a seal. The 2022 amendments to the federal rule governing expert disclosures in criminal cases expanded the information the government must provide regarding expert witnesses.[8] A disclosure of the full chain would allow the defense to identify which links rest on single attestations and to make informed decisions about stipulation and confrontation, and would allow the court to anticipate scheduling needs.
C4. Require disclosure of the foundation of record evidence.
Principles 3 and 4. White Paper 3, Section 9.1; White Paper 5, Section 4.3.
Where records are offered on certification, courts should require disclosure of the certification itself, any cover sheets, disclaimers, or limitations accompanying the records production, and a description of any query, compilation, or matching performed to generate the records produced. Compilations prepared in response to a subpoena involve choices made for litigation even when the underlying data was generated in the ordinary course of business. Disclosure allows the opponent to evaluate whether the trustworthiness clause of the business records exception may be invoked, a showing the opponent cannot make without such information.[9]
C5. Evaluate stipulations and waivers for informed consent.
Principle 1. White Paper 4, Sections 4.1–4.2.
Before accepting a stipulation to forensic results or chain of custody, or before treating a failure to demand an analyst’s appearance as a waiver, courts should confirm on the record that defense counsel received the relevant report and underlying documentation in time to evaluate it. The inquiry need not be extensive. Its purpose is to ensure that stipulations and waivers rest on informed judgment rather than on inattention or insufficient time.
C6. Give orientation instructions on foundation testimony.
Principle 4. White Paper 5, Section 7.4.
Courts should give jurors, before or at the time foundation testimony begins, a brief explanation of why foundation witnesses appear, what they establish, and how a chain of single witnesses to successive steps differs from several witnesses to the same matter. Model language appears in Section 6.
C7. Instruct jurors on records admitted by certification.
Principle 4. White Paper 5, Section 4.3.
Where records have been admitted on certification without a live custodian, courts should inform jurors of that fact and of what the certification does and does not establish. Model language appears in Section 6.
4. Recommendations for Legislatures and Governing Bodies
G1. Enact notice-and-demand statutes with adequate review periods.
Principle 1. White Paper 4, Section 4.2.
Notice-and-demand statutes should require the prosecution to provide, with its notice, the forensic report and the underlying bench notes, data, and custody documentation, and should allow the defense a demand period sufficient for counsel to review those materials and, where appropriate, consult an expert. Statutes should run the demand period from the date the complete materials are provided, not from the date of the notice alone. Statutes should place on the prosecution the burden of producing the analyst upon demand, consistent with the principle reflected in Briscoe v. Virginia.[10] Statutes should also permit the court to excuse a late demand for good cause.
G2. Fund defense access to forensic expertise.
Principles 1 and 4. White Paper 4, Sections 2.4 and 6.
The value of the right to confront a forensic analyst, and the reliability of any decision to stipulate or waive, depends on defense counsel’s ability to evaluate forensic evidence. The Supreme Court has recognized a due process right of indigent defendants to expert assistance in certain circumstances.[11] Legislatures should fund defense access to forensic consultants through public defense systems or court-administered funds, with procedures that do not require the defense to disclose its theory to the prosecution to obtain funding.
G3. Establish forensic science oversight bodies.
Principle 3. White Paper 3, Section 11.2.
States should establish independent bodies with authority to investigate allegations of negligence or misconduct in forensic analysis, to review laboratory accreditation and quality practices, and to recommend corrective action. The Texas Forensic Science Commission, created by statute in 2005, offers one model.[12] Oversight bodies address systemic errors, which individual trials are poorly positioned to detect, and provide a mechanism for identifying cases affected by errors discovered after the fact.
G4. Provide a post-conviction remedy for discredited forensic evidence.
Principle 3. White Paper 3, Section 7.4.
Where scientific knowledge relied on at trial has since been discredited or substantially changed, or where laboratory error or misconduct affecting a result has been discovered, defendants should have a clear avenue for post-conviction review. Texas enacted a statute providing such a remedy in 2013.[13] Such remedies address the fact that systemic errors are often discovered only across many cases and after convictions have become final.
G5. Mandate laboratory accreditation.
Principle 3. White Paper 3, Section 11.2.
Legislatures should condition the admissibility of forensic results, or the receipt of public funding, on laboratory accreditation, with reasonable transition periods for laboratories not yet accredited. This recommendation supports Recommendation L7.
G6. Fund laboratory capacity directly.
Principle 1. White Paper 4, Section 3.
Because confrontation is one contributor to laboratory backlogs among several, and not the principal one, reducing confrontation will not resolve backlogs. Legislatures seeking to reduce delay should fund laboratory staffing, equipment, and facilities directly, and should fund the documentation systems described in Recommendations L1 and L2, which reduce testimonial burden without reducing protection.
G7. Adopt standards for the certification of records compilations.
Principles 3 and 4. White Paper 3, Section 9.1.
Legislatures or rulemaking bodies should require that certifications accompanying records produced for criminal proceedings describe any query, compilation, or matching performed to produce the records, identify any known limitations of the data for the purpose for which it is offered, and attach any disclaimers the producing entity provides. This recommendation supports Recommendation C4 and would make visible the purpose-driven acts of selection that the business records framework otherwise conceals.
5. A Standardized Stipulation Framework
Stipulations are the least costly means of reducing foundation load, and they preserve assurance when they rest on informed judgment. White Paper 4 observed that their value depends entirely on the quality of the defense decision behind them. A standardized framework would make that quality visible and would allow the parties to stipulate to some links while contesting others.
The framework divides forensic foundation into five elements, each of which may be stipulated separately.
| Element | Content of stipulation |
|---|---|
| 1. Collection | The item was collected at the stated place and time by the stated person, and was sealed or otherwise secured as documented. |
| 2. Custody | The item passed through the documented chain of custody without alteration or substitution, and the seal, if any, was intact on receipt at the laboratory. |
| 3. Analytical procedure | The analysis was performed according to the laboratory’s documented procedures, and the instrument data and bench notes accurately reflect the work performed. |
| 4. Result | The analysis produced the stated result, such as the identity of a substance, a DNA profile, or a comparison conclusion. |
| 5. Interpretation | The stated significance of the result, including any statistical weight or source attribution, is accurate. |
Each stipulation should be accompanied by a certification from defense counsel that counsel received the report, bench notes, instrument data, and custody documentation for the element stipulated, and had an opportunity to review them.
The framework serves three purposes. First, it allows the defense to stipulate to collection and custody, which are rarely disputed, while contesting interpretation, which frequently is, thereby reducing the procession of custodians without surrendering the ability to examine the analyst. Second, it records which elements were contested, which assists appellate review and later post-conviction inquiries. Third, it corresponds to the structure of the chain described in White Paper 2, making explicit which links were established by agreement and which by testimony.
Nothing in the framework should require the prosecution to accept a stipulation. The framework structures the offer; the prosecution’s general entitlement to present its evidence is unaffected.
6. Model Juror Instructions
The following instructions are offered as models. They are written in impersonal form; courts may adapt them to the form of address customary in their jurisdiction.
6.1 Orientation Instruction on Foundation Witnesses
The jury will hear from a number of witnesses whose testimony concerns how certain items of evidence were collected, stored, transported, and tested. Some of these witnesses may testify only briefly. Their testimony is presented because the law requires that a party show that an item offered in evidence is what it is claimed to be and that it has not been changed in any way that matters.
Each of these witnesses ordinarily testifies about one step in the handling or testing of the evidence. When several witnesses each describe a different step, they are not confirming one another’s testimony. Each witness speaks only to the step that witness performed or observed. The jury should consider whether each step has been established, and should not assume that the number of such witnesses by itself shows that the evidence is reliable.
By contrast, when two or more witnesses testify independently about the same event or step, their agreement may be considered as confirming that testimony, and their disagreement may be considered as raising a question about it.
The jury should weigh the testimony of these witnesses as it weighs all testimony, considering whether each step was established and whether anything in the evidence suggests that the item was altered, mishandled, or confused with another.
6.2 Instruction on Records Admitted by Certification
Certain records in this case were admitted on the written certification of a person responsible for keeping them, and no witness from the organization that made the records testified. The certification establishes that the records were made and kept in the ordinary course of the organization’s regular activity. It does not establish that every entry in the records is accurate, and it does not establish the accuracy of any conclusion that a witness has drawn from the records.
The jury may consider the records as evidence and may give them such weight as the jury finds they deserve, considering all the evidence in the case, including any evidence about how the records were made, how they were retrieved or compiled for this case, and any limitations on their use.
6.3 Instruction on Stipulated Foundation
The parties have agreed that certain facts concerning the collection, handling, or testing of evidence are established. The jury should treat those agreed facts as proved. Where the parties have agreed to some steps but not others, the jury should consider the remaining steps on the basis of the evidence presented about them.
7. Implementation Priorities
The recommendations differ in cost, in the ease with which they can be adopted, and in the protection they provide. The following table offers a general assessment to assist institutions in setting priorities. The assessments are qualitative and will vary by jurisdiction.
| Recommendation | Relative cost | Ease of adoption | Protection gained | Priority |
|---|---|---|---|---|
| L1 Tamper-evident sealing | Low | High | High | Immediate |
| L2 Dual custody documentation | Moderate | Moderate | High | Immediate |
| C1 Scheduling practices | Low | High | Cost savings only | Immediate |
| C6, C7 Juror instructions | Low | High | Moderate | Immediate |
| C5 Informed stipulation inquiry | Low | High | Moderate | Immediate |
| Stipulation framework | Low | Moderate | Moderate | Near term |
| C3, C4 Chain and record disclosure | Low to moderate | Moderate | High | Near term |
| L4 Blind verification | Moderate | Moderate | High | Near term |
| L6 Error record disclosure | Moderate | Moderate | High | Near term |
| C2 Remote testimony rules | Low | Moderate | Cost savings only | Near term |
| G1 Notice-and-demand reform | Low | Moderate | Moderate | Near term |
| G7 Compilation certification standards | Low | Moderate | Moderate | Near term |
| L3 Workflow redesign | Moderate to high | Low | Moderate | Longer term |
| L5 Retained samples | Moderate | Moderate | High where feasible | Longer term |
| L7, G5 Accreditation | High | Moderate | High | Longer term |
| G2 Defense expert funding | High | Low | High | Longer term |
| G3 Oversight bodies | Moderate | Low | High | Longer term |
| G4 Post-conviction remedy | Low | Low | High | Longer term |
| L8 Laboratory independence | High | Low | High | Longer term |
| G6 Capacity funding | High | Low | Cost savings | Ongoing |
Several of the most protective measures are also among the least costly. Tamper-evident sealing, dual custody documentation, juror instructions, and disclosure of the analytical chain can be adopted with modest resources and would address the principal weaknesses identified in this series: the invisibility of sequence, the absence of corroboration at custody links, and the invisibility of record foundation.
8. Limitations
The recommendations in this paper are general. Laboratories, courts, and legislatures operate under different rules, resources, and traditions, and particular recommendations may be already adopted, impractical, or inconsistent with local law in some jurisdictions. The model instructions have not been tested with juries, and their effect on juror understanding would require empirical evaluation. The implementation assessments are qualitative judgments rather than cost estimates. Several recommendations, particularly those concerning laboratory independence and defense funding, involve policy questions whose resolution depends on considerations beyond the scope of this series.
9. Conclusion
This series began with an observation familiar to anyone who has watched a criminal trial: many witnesses, little apparent content, one witness who matters. It has argued that the procession is neither padding nor corroboration. It is the visible form of a legal structure that distinguishes physical objects from records, statements made for prosecution from statements made for other purposes, and single examiners from divided pipelines. That structure produces a chain of single attestations whose strength is the strength of its weakest link, a constitutional safeguard well aimed at some risks and blind to others, real costs to the institutions that sustain it, and a public that rarely sees it and often misreads it.
The recommendations gathered here share a single aim: to make the chain stronger without making it longer, and to make it intelligible to those who must judge it. Sealing, dual documentation, blind verification, and retained samples add independent confirmation where the chain now rests on one person’s word. Disclosure, accreditation, and oversight address the errors that no cross-examination will uncover. Scheduling practices, remote testimony by consent, and informed stipulations reduce the cost of accountability without abandoning it. Instructions and public explanation allow jurors and citizens to see the chain for what it is.
The law asks that a result not speak until someone has answered for how it came to be. The measures proposed here are intended to ensure that those who answer are accountable, that their answers can be checked, and that those who hear them understand what has been said.
Notes
[1] Smith v. Arizona (2024).
[2] Dror et al. (2015); Kassin, Dror, and Kukucka (2013).
[3] Brady v. Maryland (1963); Giglio v. United States (1972).
[4] International Organization for Standardization and International Electrotechnical Commission (2017).
[5] National Research Council (2009), Recommendation 7; National Commission on Forensic Science (2015).
[6] National Research Council (2009), Recommendation 4.
[7] Maryland v. Craig (1990); United States v. Yates (2006).
[8] Fed. R. Crim. P. 16(a)(1)(G), as amended effective December 1, 2022, requiring a complete statement of the witness’s opinions, the bases and reasons for them, the witness’s qualifications, and a list of cases in which the witness has testified in the preceding four years.
[9] Fed. R. Evid. 803(6)(E).
[10] Briscoe v. Virginia (2010); Melendez-Diaz v. Massachusetts (2009), pp. 326–327.
[11] Ake v. Oklahoma (1985); McWilliams v. Dunn (2017). Lower courts have differed on the extent to which Ake extends to non-psychiatric experts.
[12] Tex. Code Crim. Proc. art. 38.01.
[13] Tex. Code Crim. Proc. art. 11.073.
References
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