III. PLAN OF ACTION
A. Quality Assurance
In Parts Six and Seven of the draft report, the OIG makes a series of recommendations for steps to improve the FBI Laboratory and ensure that the Laboratory provides forensic services of the highest quality. [The report makes it clear that the OIG s review was focused on the Explosives Unit (EU), the Chemistry-Toxicology Unit (CTU), and the Materials Analysis Unit (MAU) of the Laboratory. Part Six at 2. The OIG's recommendations are not meant to imply that the shortcomings addressed exist in other units of the Laboratory which were not reviewed.] With few exceptions, the FBI concurs in the recommendations made by the OIG. Many of those recommendations involve initiatives that were first pursued by the Laboratory before Whitehurst made any allegations. In addition, the FBI has adopted other recent measures to improve the Laboratory Division, many of which go beyond the steps recommended by the OIG. These measures aredescribed in the Conclusion below. Our responses to the specific recommendations by the OIG, as summarized in Part Seven of the draft report, follow.
1. ASCLD/LAB Accreditation and External Review
The draft report includes the following recommendations:
(a) The Laboratory should pursue accreditation at the earliest possible time.
(b) In addition to the inspection required for accreditation, external reviews of the Laboratory should occur periodically through audits by the OIG or reviews involving scientists from other forensic laboratories.
Response: The FBI fully concurs in the first recommendation, and has been preparing to apply for formal accreditation by the American Society of Crime Lab Directors/Laboratory Accreditation Board (ASCLD/LAB) for the past two years.
Accreditation is a voluntary process involving an external inspection of the Laboratory's procedures and requires the Laboratory to meet the standards prescribed by ASCLD/LAB. In preparation for accreditation, the FBI Laboratory is currently undergoing extensive internal audits of its operations and procedures. In the Spring of 1997, upon the completion of the internal audits, the Laboratory will have an external, pre-accreditation review conducted by qualified inspectors from the National Forensic Science Technical Center. The Laboratory will then make changes in response to any recommendations resulting from that external review. The Laboratory anticipates that it will complete these preparations in time to permit it to submit an application for accreditation by the end of 1997. The decision to accredit by ASCLD/LAB must be made within 12 months of the completion of its on-site inspection of the FBI Laboratory, giving a target accreditation date at the end of 1998.
To those unfamiliar with the process, this may seem an unreasonably long time to complete accreditation. The filing of an ASCLD/LAB accreditation application, however, is always a time consuming process, typically taking a standard laboratory two years of preparation. Preparing the FBI's Laboratory for accreditation is even more complex, given the fact that it is one of the largest and most diverse forensic laboratories in the world. It is also one of the busiest laboratories in the world. Indeed, in addition to its normal annual case load involving sixteen thousand evidence submissions and several hundred thousand examinations, the FBI Laboratory has had a number of major investigations to which it has had to respond since it began preparing for accreditation over the last two years. During the same period, the Laboratory has been undergoing fundamental changes, including the implementation of numerous new policies and procedures and the transition from nearly all agent examiners to a significant number of non-agent examiners as part of a general reduction in the number of agents at FBI Headquarters. This transition has involved the hiring and training of approximately 100 new examiners.
These factors have slowed the Laboratory's preparation for the accreditation process. At the same time, it is essential that the Laboratory be fully prepared to pass the ASCLD/LAB inspection upon its first application. The importance of the FBI Laboratory's role as a current and future leader in the forensic science community is too great to risk failing to achieve accreditation because of a hastily filed application.
In hindsight, as suggested in the OIG report, the Laboratory could and should have sought ASCLD/LAB accreditation a decade ago. The failure to do so must be attributed in large part to prior Laboratory management having had an insufficient appreciation of the benefits conferred by accreditation and giving insufficient priority to the completion of the application process. Also, limited resources combined with the always competing demand of a heavy work load undoubtedly played a role. The current Laboratory management is, however, fully committed to applying for accreditation at the earliest possible time and no later than the time frame set forth above.
We think it should be emphasized that, even though explosives is not a forensic discipline accredited by ASCLD/LAB, the FBI Laboratory is taking the additional step of requiring the Explosives Unit (which is to be integrated into a new Materials and Devices Unit) to model its substantive personnel qualifications, functions, practices and standards on those required of the eight accredited disciplines which will be subject to inspection (controlled substances, toxicology, trace evidence, serology, DNA, firearms/toolmarks, questioned documents and latent fingerprints). This will ensure that all of the units within the Scientific Analysis Section of the Laboratory which analyze physical evidence either (1) adhere to or exceed established forensic science community standards or (2) in unique disciplines such as explosives analysis, create standards which can withstand peer review and become benchmarks for other experts in the field.
It is also important to emphasize that the fact that the FBI Laboratory has yet to be accredited by ASCLD/LAB does not mean that its past and present work is unreliable or untrustworthy. As noted in the ASCLD Laboratory Accreditation Board Manual, "[t]he fact that a laboratory chooses not to apply for accreditation does not imply that a laboratory is inadequate or that its results cannot be trusted." [ASCLD/LAB, Laboratory Accreditation Board Manual 1 (1994) [hereafter Manual ].] While there are clear advantages to ASCLD/LAB accreditation, good laboratory practices are established and followed by forensic laboratories without accreditation. There are many non-accredited labs whose practices and work-product are demonstrably professional and trustworthy. With very few exceptions, we believe that has been true of the FBI Laboratory. This is a point which has been lost in press discussions of this issue. That point should be made prominently and strongly in the OIG's discussion of its recommendation that the Laboratory should pursue accreditation at the earliest possible time.
The FBI agrees in principle with the OIGs second recommendation that, in addition to the reviews that are part of the accreditation process, the Laboratory should undergo periodic external reviews through audits by the OIG or reviews involving scientists from other forensic laboratories. The nature and extent of such additional reviews, however, should be clarified.
With respect to OIG audits, the FBI believes the OIG can play a useful role by conducting periodic progress reviews regarding the implementation of its recommendations. The FBI makes a specific request for such further OIG inspection below.
With respect to additional periodic external reviews by outside scientists, the draft report does not make it clear as to whether this recommendation is referring to the same kind of quality assurance review that is performed as part of the ASCLD/LAB accreditation process or some more limited type of external review. In order to maintain ASCLD/LAB accreditation, once approved, the FBI Laboratory will be required to (1) file reports annually with ASCLD/LAB documenting compliance with ASCLD/LAB standards; (2) follow a program of internal case review ensuring that examiners are following established procedures and that findings are properly documented; (3) successfully complete internal and/or external proficiency tests; and (4) undergo a complete reinspection every five years. As detailed below, the Laboratory has already established a review procedure before final results are issued by examiners and is developing, under the auspices of the Quality Assurance Unit, an internal audit group which will review a representative sample of closed cases. In addition, Appendix L of the Laboratorys Quality Manual requires each unit to perform annual external proficiency testing. [Such external testing serves, as noted in the ASCLD/LAB Manual , "as a check on inbreeding within a laboratory or laboratory system." Id. at II.]
The FBI does not believe that it is necessary for additional full-scale, external inspections of segments of the Laboratory in the nature of the reinspection that will be performed by ASCLD/LAB at five year intervals. This would unduly disrupt the operations and work of the Laboratory. The Laboratory will, of course, like other FBI Headquarters Divisions, be subject to periodic audit by the FBI Inspection Division. In addition, the Laboratory is pursuing an outreach effort to establish external peer review relationships with other forensic laboratories in various disciplines, which would provide annual consultation on quality assurance issues. An example of this is the current dialogue between the FBI Laboratory and the New York State Crime Laboratory in Albany, New York. In the Spring of 1997, a delegation from the FBI Laboratory will go to Albany to discuss quality assurance measures and a full range of other forensic issues. Thereafter, a delegation from Albany will come to the FBI Laboratory. This type of continuing collaboration should achieve the "perspective broadening" goal sought by the OIG recommendation of additional external review.
2. Restructuring the Explosives Unit
The draft report includes the following recommendations:
(a) The unit should be restructured to clarify its mission and to assure that scientific analyses are performed by qualified examiners.
(b) Within the Laboratory, the primary mission of the EU should be the forensic examination of evidence by qualified scientists.
(c) The investigative and crime scene management functions of the EU should be transferred out of the Scientific Analysis Section of the Laboratory.
(d) The unit chief and examiners in the EU should have scientific backgrounds in pertinent disciplines such as chemistry, metallurgy, or engineering, as well as technical training in the assembly, deactivation, and reconstruction of explosive devices and the examination of bombing scenes.
(e) To avoid contamination, swab kits, clothing, and evidence that are to be examined for traces of explosives should be first sent to a designated area that is physically separate from the main EU facility. The area designated for the receipt of evidence requiring residue analysis should have strictly controlled access and appropriate procedures to monitor and prevent contamination.
Response: The FBI generally concurs with the views expressed in the OIG's first, second and fourth recommendations -- that the EU should be restructured to clarify its mission and to ensure that both supervisory personnel and examiners have appropriate scientific and technical training. Such a restructuring is already underway. [See Electronic Communication from Laboratory Division to Director Freeh dated 1/23/97.] The Bomb Data Center (BDC), which primarily provides training and operational support for bombing matters, is being separated from the EU, and established as a separate unit in the Forensic Science Research and Training Center. In addition, the EU will be merged with the greater portion of the Materials Analysis Unit (MAU) to form the Materials and Devices Unit, which will immediately link two related forensic disciplines.
The restructuring will also involve a number of personnel changes. The prior chief of the EU has been reassigned. The new chief will be Dr. Thomas Jourdan, an accomplished and experienced scientist who is now the chief of the MAU. The current head of the Scientific Analysis Section is Dr. Randall Murch, also an accomplished and broadly experienced scientist. The FBI intends to select a similarly qualified individual as Assistant Director (AD) of the Laboratory.
The FBI also concurs in the OIG's fifth recommendation, that evidence to be examined for traces of explosives should first be sent to an area that is physically separate from the main EU facility and strict procedures to monitor and prevent the contamination of evidence should be in place. The Laboratory has been aware of the risk of potential contamination in connection with explosives residues, and has taken a number of actions to identify, limit and avoid such contamination. The Bureau is now in the process of reallocating space at its Headquarters building in Washington, D.C., the Laboratory's current location, to provide the EU and other units with additional work space. [See Electronic Communication from Laboratory Division to Deputy Director Kennedy dated 2/7/97.] This new space, which is expected to be available by July 1, 1997, [The space sought by the Laboratory is now being used by a number of different FBI divisions. As a result, those divisions must be moved and the space redesigned before it will be ready for use by the Laboratory.] will greatly improve the facilities in which cases involving explosives and other trace evidence are worked.
In addition, the Bureau is in the process of planning a new, state-of-the-art Laboratory facility in Quantico, Virginia. That new facility will be specifically designed to prevent and monitor potential contamination.
The FBI respectfully disagrees with the OIG's third recommendation, that the investigative and crime scene management functions of the EU should be transferred out of the Scientific Analysis Section of the Laboratory. [Part Seven at 1-2.] The OIG suggests that the EU's multiple functions would be "better achieved" if the investigative and crime scene management functions of the Laboratory were "dispersed," and "the functions appropriately left within the Laboratory were performed by qualified scientists." [Part Six at 7.] As noted previously, however, in reaching this conclusion, the OIG has misunderstood the role of forensic explosives examiners.
As the OIG recognizes, the EU's many functions include the investigation of bombing incidents and management of complex crime scenes. [Id.] There are substantial reasons why EU examiners have those investigative responsibilities as well as more traditional Laboratory duties. Even if examiners with more extensive scientific backgrounds are brought into the EU, as the FBI intends to do, those examiners will not merely be experts in a specific scientific field, such as chemistry. They will also be experts in explosive devices generally, in particular the effect those devices can have when detonated. That more general expertise, based upon years of examining explosives and investigating crime scenes, clearly gives EUexaminers valuable "specialized knowledge" that can "assist the trier of fact to understand the evidence or to determine a fact in issue . . . ." [Fed. R. Evid. 702.] In addition, firsthand observations by EU examiners at crime scenes are among the facts and data upon which they may base an opinion or inference as expert witnesses. [See Fed. R. Evid. 703, and Advisory Committee Notes thereto.] Precluding EU examiners from an investigative role, as the OIG suggests, would eliminate a significant basis on which those examiners learn about explosive devices, eliminating a potential basis upon which they can provide useful expert testimony and reducing the FBI's overall understanding and knowledge of the workings and effect of those devices. [Through interaction with the field divisions involved in major bombing cases, the Laboratory has learned that they expect and desire more, not less, leadership by Laboratory personnel in crime scene management. To maximize the Laboratory's efforts, however, the FBI has begun initiatives to provide additional training and equipment to the ERT Unit and field ERTs s o they may respond even more effectively with Laboratory personnel in major bombing cases. ]
As a result, the FBI would not be inclined to transfer the EU's investigative and crime scene management functions to the Evidence Response Team (ERT) Unit. [Part Six at 6. The FBI is also not inclined to transfer the chemical analysis of explosives from the Chemistry Unit (previously named the Chemistry Toxicology Unit) to the EU. ( Id. ). Even if examiners with more extensive scientific backgrounds are brought into the EU, the Laboratory s general approach is to have examiners with the greatest expertise in a particular forensic discipline -- i.e. , chemical analysis -- conduct all analyses within that discipline. The OIG s report does not criticize that practice in any way. In the FBI s view, continuing to have examiners in the Chemistry Unit perform the chemical analysis of explosives is more consistent with the OIG s primary recommendation, that the forensic examination of evidence be conducted by highly qualified scientists, than having explosives examiners conduct those tests, even if they have the necessary scientific and technical training. In any event, some of the OIG s concerns will likely be resolved by the FBI s current plan to merge the Materials Analysis Unit (MAU) with the EU, to form the Materials and Devices Unit (MDU). See Electronic Communication from Laboratory Division to the Director dated 1/23/97 at 2.] Rather than require that completely different personnel investigate explosives cases and oversee the collection of evidence, the FBI will continue, as it has long advised other forensic laboratories, to have its experienced explosives examiners participate in that process. [See FBI Handbook of Forensic Science at 55 (advising state and local law enforcement authorities to obtain trained specialists to handle and process bombing crime scenes, stating: " Although the basic principles of conducting a crime scene search apply in a bomb scene search, individuals with specialized knowledge of explosives, improvised explosive devices, damage produced by explosive charges, and other facets associated with bomb scene searches, such as the search and collection of physical bombing evidence are extremely valuable to the effective and efficient processing of a bombing crime scene. " ).]
The FBI disagrees with the OIG's statement that its conclusions "reflect certain trends in forensic science generally and in the examination of explosives in particular." [Part Six at 8.] It is true that knowledge of and analytical techniques for the forensic examination of bombing evidence have become increasingly technical and sophisticated, in part because bombers are becoming more sophisticated in their use of explosives. [Id.] However, the Bureau does not believe that the growing complexity and impact of bombing cases supports the removal of explosives examiners from the crime scene -- an area where they not only can provide substantial assistance, but also have an opportunity to add significantly to their own level of knowledge. Instead, the FBI supports a system that allows EU examiners to develop broad expertise, by exposing them to all areas related to explosives, including crime scene assessment and management.
The FBI does recognize that having a single individual act as both crime scene investigator and forensic analyst could create a risk that examiners will not clearly distinguish their "separate and distinct roles," particularly while testifying at trial. [Id. at 6, 9. ] Accordingly, as a general rule, the explosives examiners who participate in the crime scene investigation will not conduct the scientific analyses that may later be required. In addition, unless specifically designated as a summary witness (see discussion below) or special circumstances arise, the EU examiners investigating the crime scene will not testify at trial regarding the results of those scientific analyses. [While the Laboratory's general practice will be to have different examiners assist the crime scene investigation and conduct the scientific analyses, some modification may be required if extraordinary circumstances arise, such as an extremely large or complex bombing investigation which demands all of the resources of the EU, or an unusual case which requires both the investigative and analytical services of one employee with unique expertise. In that event, all affected employees will receive additional, case-specific training to ensure that trial testimony is appropriately limited.]
3. Principal and Auxiliary Examiners
The draft report includes the following recommendations:
(a) In place of the existing distinction between "Principal" and "Auxiliary" examiners, the Laboratory should instead identify a "Coordinating Examiner" for each case. That person would serve as the contact with the entity requesting the examination of evidence and would coordinate work by other examiners within the Laboratory.
(b) The Laboratory should develop guidelines for the respective roles of the coordinating examiner and other examiners in case work, preparation of reports, and the presentation of testimony.
(c) Disagreements among examiners over forensic methods or the interpretation of results should be resolved based on pertinent scientific knowledge. If supervisors become involved in resolving such disputes, it is important that their ultimate decision be clearly communicated to the examiners involved and that it be reflected in any resulting reports.
Response: The FBI agrees with the OIG that the terms "principal examiner" and "auxiliary examiner" are somewhat misleading given examiners' actual functions. [Id. at 10.] As a result, the FBI has already adopted the OIG's first recommendation and has notified Laboratory personnel of the redesignation of examiner positions. [See Electronic Communication from Acting Assistant Director Donald Thompson to Laboratory Division, dated 1/30/97.] The Principal Examiner will now be known as the "Coordinating Examiner" (CE). As in the past, that examiner will serve as both the contact with the entity submitting evidence for examination and the coordinator for the work done by other examiners in the case. The auxiliary examiner will be known as the "Associate Examiner" (AE).
In accordance with the OIG's second recommendation, the FBI has developed specific guidelines regarding the respective roles of the CE and AE. [See Quality Manual, Appendix F (Evidence Control Policy and Procedures) and Appendix J (Case Documentation and Review Policies and Procedures).] Those guidelines, which will be incorporated into the Laboratory's training programs, clarify examiners' respective responsibilities for report preparation and testimony. Laboratory personnel have already been instructed that they should avoid testifying as to the analyses or conclusions of other examiners. As discussed more fully below, Laboratory personnel have also been instructed to limit their testimony to their area of expertise or personal knowledge. [See Electronic Communication to Laboratory Division, dated 2/6/97 (outlining court testimony policy for examiners).]
In reviewing the Laboratory's major case management procedures, the FBI determined that it would be appropriate to do more than just redesignate examiner positions. As a result, the Bureau is also establishing a program to provide a group of senior examiners with specialized, in-depth training on the management of major cases and evaluation of emerging needs. That group will serve as a source of advice and guidance for CEs handling particularly large and/or complex matters, as well as Laboratory management.
The FBI has also taken steps to implement the OIG's third recommendation, to ensure that examiner disagreements over forensic methods or the interpretation of results are resolved based on applicable scientific principles. A communication was recently sent to all Laboratory personnel describing in detail the procedure to be followed in the event a scientific dispute arises. [See Electronic Communication to Laboratory Division, dated 2/3/97 (addressing resolution of scientific, technical, and administrative conflicts during case examinations and unit operations).] That procedure is now being incorporated into the Laboratory's Quality Manual.
Under the Laboratory's dispute resolution policy, examiners who have a disagreement over forensic results must first attempt to work out their disagreement informally. If they cannot do so, they must raise the issue with the appropriate supervisor(s). If necessary, the supervisor(s) will consult the chief of the relevant section or the special Scientific Resolution Board being established by the Laboratory for this purpose. In any event, if supervisors become involved, their ultimate decision, based on scientific principles, must be clearly communicated to the examiners and reflected in the appropriate documentation.
4. Report Preparation
The draft report includes the following recommendations:
(a) In place of the existing procedures whereby the principal examiner assembles a report based on dictation from other examiners, each examiner who analyzes evidence should prepare and sign a separate report.
(b) In cases where it is desirable for the coordinating examiner to prepare a summary report interpreting the overall significance of findings by other examiners, the CE should circulate drafts of the summary report among the relevant examiners to solicit their views before the report is released.
(c) Reports should be clear, concise, objective, and understandable. They should fully disclose the involvement of the issuing examiner in the case and all pertinent information and findings.
(d) Examiners should limit their conclusions to those that logically follow from the underlying data and analytical results. An examiner should not draw conclusions that overstate the significance of the technical or scientific examinations; nor should an examiner base forensic conclusions on unstated assumptions or information that is collateral to the examinations performed.
Response: The FBI agrees with all of the OIG's recommendations. The Bureau has required each examiner to prepare and sign his or her own report for several months. [See Quality Manual, Appendix J (Case Documentation and Review Policies and Procedures).] That requirement will obviate some of the concerns raised by the OIG. For example, alteration of AE dictation will no longer be possible because AEs will prepare and sign their own reports of examination. To further clarify the individual reporting requirement in light of the redesignation of examiner positions, the FBI will include instructions regarding summary reports in its guidelines on the respective roles of CEs and AEs, as well as in its training materials.
Detailed requirements for Laboratory reports are set forth in Appendix J of the Laboratory's Quality Manual. To the extent that the Quality Manual does not specifically include the language suggested by the OIG, the FBI will make whatever revisions are needed. Those revisions will expressly state that all Laboratory reports must not only be clear, concise, objective, and understandable, but also fully disclose the involvement of the issuing examiner and all pertinent information and findings. [As recommended by the OIG (Part Six at 14), the Quality Manual currently requires Laboratory reports to include detailed information regarding the person submitting evidence for analysis, the type of evidence received, the date and manner of receipt, and the later disposition of the evidence, as well as the results obtained from examination. See Quality Manual, Appendix J, õ õ 6 and 7. In addition, the Quality Manual states that case documentation must be sufficient " to allow a technically competent individual, examiner, or supervisor, independent of the primary examiner, to evaluate what was done. " Id. at 8.]
The FBI already requires that, prior to release, reports be reviewed by a unit chief or other qualified examiner for compliance with all applicable requirements. [Id. , Appendix J.] The FBI has also adopted an internal audit program, pursuant to which reports will be subject to annual audits by the Quality Assurance Unit to confirm that all necessary documents are included in the case file. [Id. , Appendix M.]
Consistent with the OIG's recommendation, the FBI further requires that, in both reports and testimony, examiners limit their conclusions to those that logically follow from the underlying data and analytical results. However, to emphasize that point and better monitor examiners' compliance, the Bureau will be reexamining its training materials and has modified its program to evaluate examiner testimony. (See discussion below).
5. Adequate Peer Review
The draft report includes the following recommendation:
(a) Before being released, each report should be substantively reviewed to confirm that its conclusions are reasonable and scientifically based. This review should be done by the unit chief or by another qualified examiner if the unit chief lacks the requisite expertise.
Response: The FBI fully concurs in this recommendation. As already stated, the FBI requires that, prior to release, reports be reviewed by a unit chief or other qualified examiner for compliance with all applicable requirements.
6. Case Documentation
The draft report includes the following recommendations:
(a) The Laboratory should assure that case files include all notes, printouts, charts and other data or records used by examiners to reach their conclusions.
(b) The case files should contain sufficient information that another qualified scientist can understand all the analyses that were done, the results obtained, and the basis of the examiner's conclusions.
(c) Retrospective case file reviews or "audits" -- which we distinguish from a substantive review at the time of report preparation -- should be conducted periodically to assure that reports are supported by appropriate analysis and documentation.
Response: The FBI has already taken a number of steps to implement these recommendations, and ensure that case files contain sufficient information that another qualified scientist can understand all of the analyses that were done, the results obtained, and the basis for the examiner's conclusions. [Part Six at 17.] The Bureau's Quality Manual imposes that precise requirement, [Quality Manual at 8.] which will be explained in more detail in a communication to Laboratory personnel. In addition, the FBI has adopted an internal audit program which provides for an annual review of Laboratory files for appropriate documentation. [Id. , Appendix M, Audit Questionnaire at 5 (during audit, Quality Assurance Unit to determine, among other things, whether examiners generate and the Laboratory maintains all the notes, work sheets, photographs, spectra, printouts, charts and other data or records used by examiners to support conclusions).]
The FBI is also in the process of developing an additional internal audit system, separate from the program already established, which will provide for a new internal audit group within the Quality Assurance Unit. That group, which will be comprised of qualified individuals in each forensic discipline practiced by the Laboratory, will conduct an independent, all-encompassing review of a statistically representative sample of closed cases, from inception through final disposition. This additional review process will ensure that Laboratory management continues rigorously to enforce the Quality Control Program.
7. Record Retention
The draft report includes the following recommendation:
(a) The Laboratory must develop a record retention and retrieval system that assures case files are complete and readily retrievable.
Response: The FBI is implementing this recommendation as well. The plans for the new Laboratory facility at Quantico include room for a separate file system for Laboratory records. Until the new facility is complete, however, the Laboratory will utilize a room recently established at FBI Headquarters for all of its case-related files. [See Electronic Communications from Special Projects Section to Laboratory dated 12/10/96 and 2/7/97.] Files will be retained in the Laboratory file room for a period of five years. Unless the case remains active after that time, Laboratory files will then be transferred to the FBI's general record system.
The new Laboratory file room has already been equipped with necessary shelving and other equipment. Laboratory personnel are now in the process of organizing existing files and transferring them to the new space. That process is expected to be completed within the next six months.
8. Examiner Training and Qualification
The draft report includes the following recommendations:
(a) The Laboratory should implement a uniform curriculum for examiner training that addresses common issues such as case documentation, report preparation, examiner ethics, and testimony.
(b) The moot courts used in the qualification process should address not only substantive knowledge and presentation skills, but also an examiner's ability to recognize the limits to his or her opinions and expertise.
(c) The Laboratory should consider using experienced examiners from other laboratories as participants in moot courts for examiner qualification.
(d) Qualified examiners should participate periodically in exercises simulating court room testimony, both to reevaluate their skills and to provide training demonstrations for less-experienced examiners.
(e) The uniform training curriculum should emphasize that the Laboratory's function is to provide reliable and objective forensic results. The training program should also address the roles and responsibilities of the various Laboratory components and the importance of open communication and cooperation among examiners.
(f) Training curricula for specific units should be clearly stated. Documented completion of the approved curriculum should be required before an examiner issues reports and conclusions. Any departures from the specified curriculum should also be documented and approved by both the unit chief and the SAS chief.
Response: The FBI concurs in all of these recommendations. Many steps have already been taken by the Laboratory to improve its training and examiner qualification program.
As for the first and fifth recommendations, the Laboratory is refining and expanding its preexisting core curriculum for new examiner qualification, which addresses issues common to all forensic disciplines. The newly expanded core curriculum will include, among other things, Laboratory policies and procedures relating to (1) the Laboratory's basic mission of providing objective analysis of evidence based on recognized scientific methods in accordance with either validated protocols or procedures which can otherwise withstand peer review; (2) Laboratory organization and the roles and responsibilities of its various components; (3) evidence response and evidence control; (4) case documentation; (5) report preparation; (6) open communication and cooperation among examiners; (7) scientific dispute resolution procedures; (8) the quality control program; (9) the fundamentals of reliable expert testimony (including the Laboratory's new court testimony policy, detailed below); (10) science and the law; and (11) examiner ethics. The revised core curriculum is being developed by the Forensic Science Training Unit and will be finalized by June 1, 1997.
Concerning the second and third recommendations relating to moot courts, the Laboratory will invite experienced examiners from other laboratories to participate in all future moot courts used to qualify examiners. In addition, the Laboratory will coordinate with the Office of the General Counsel to provide experienced trial lawyers at the moot courts to assist in providing comment and direction on recognizing the limits of an examiner's expertise, when and how it is appropriate for an examiner to act as a summary witness regarding results produced by others in the Laboratory, and the general care and precision with which the examiner's opinions must be stated in response to aggressive questions asked in the pull and tug of the adversarial process.
To address the fourth recommendation, the Laboratory will hold an annual seminar for experienced examiners to update them on new developments in procedure and policy and provide refresher training on courtroom testimony. The seminar will include a featured speaker, such as a Federal district court judge or prosecutor with substantial experience in cases involving testimony by forensic experts. The seminar also will include exercises led by experienced examiners, followed by discussion and critiques. The Laboratory's target date for the first such seminar for experienced examiners is the Fall of 1997.
With respect to the sixth recommendation, over the last several years the Laboratory has sought to clearly define and document examiner progress in the existing training programs of the forensic units. Refinements to these training programs are in progress and will be completed by June 1, 1997. In addition, it is the current policy of the Laboratory that examiners must complete their unit's training program before being qualified, and that only qualified examiners may issue reports and conclusions. Most units already require examiners to sign-off on their training manuals as their training progresses, although this has not been a universal practice. All unit chiefs will now be required to ensure that a new examiner's completion of the unit's training program is documented.
9. Examiner Testimony
The draft report includes the following recommendations:
(a) The Laboratory should include courtroom testimony as part of the uniform training curriculum for new examiners.
(b) The Laboratory should adopt written guidelines concerning examiner testimony. Such guidelines should expressly state that examiners in testifying should: (a) accurately and completely disclose their involvement in the matter; (b) be clear, straightforward, and objective in their answers to questions on direct and cross-examination; (c) limit their conclusions to those that logically follow from the underlying data and analytical results; (d) decline to answer questions beyond their expertise; (e) attempt to avoid phrasing their testimony in an ambiguous or possibly misleading manner; and (f) be accurate and complete in describing the analyses done or conclusions made by others, while remaining careful not to stray beyond their own expertise.
(c) Where it will be necessary for one examiner to testify about work done by others, the Laboratory should attempt prospectively to identify which examiner is best able to address the various matters and to assure that he or she is adequately prepared.
(d) Testimony by examiners should be monitored at least once each year through observation or transcript review by the unit chief or another qualified examiner.
Response: The FBI concurs in all of these recommendations.
A preliminary comment is in order with respect to the OIGs second recommendation relating to guidelines for testimony. It should be emphasized that the principle of providing straightforward, clear and objective testimony within the bounds of one's expertise is not new to the FBI Laboratory and its examiners. The basic testimonial role of a Laboratory examiner is the same as that of any expert witness, i.e., "assisting the trier to understand the problem they are to decide and use discriminating judgment in reaching a decision." [Ladd, Expert Testimony, 5 Vand. L. Rev. 414, 429 (1952).] The FBI has always recognized that the credibility of its Laboratory examiners relies not only on their vigorous exercise of a scientific ethic in performing objective examinations, but in clearly and impartially testifying to their conclusions based on "facts or data relied upon by experts in the particular field in forming opinions or inferences upon the subject." [See Fed. R. Evid. 703, and Advisory Committee Notes thereto.] As noted by one commentator, to be useful and persuasive, an expert's explanation of the techniques and reasoning used in reaching his conclusions must be such that "a juror should be able to say 'My conclusion is in accordance with the opinion of the expert, not because he has expressed the opinion, but because he made me understand the facts in such a way that my opinion is the same as his." [Ladd, "Expert Testimony," 5 Vand. Law Rev. at 428.] In accordance with these fundamental principals of expert testimony, the moot courts that have long been a part of the Laboratory's qualification process have rigorously tested the clarity, precision, logic and objectivity of a new examiner's testimony. The OIG report should acknowledge that these are not new concepts to the Laboratory. To suggest otherwise is unfair and inaccurate.
The nature of the adversarial process is such that the party sponsoring an examiner's testimony will naturally attempt to present the examiner's opinions in a manner which best supports that party's position. At the same time, cross-examination has played, and will continue to play, an important role in checking the reliability of the testimony of experienced examiners. Overstated, incomplete, inaccurate, ambiguous, or unsupported testimony by examiners is subject to attack on cross-examination or rebuttal by opposing experts. [One commentator lists the following points for testing an expert upon cross-examination: The cross-examination of skilled and expert witnesses, if undertaken, should be directed to: (a) showing a lack of qualification, (b) a motivating interest, (c) error in the observed or assumed facts, (d) error in conclusions or opinions, (e) specific impeachment, i.e. , previous contradictory or inconsistent statements or writings, or lack of general credibility. Unless a cross-examination can be effectively directed to one of these objectives, it should not be undertaken. Busch, Law and Tactics in Jury Trials 633, 635 (1949).] Tomaintain their objectivity and credibility, however, Laboratory examiners must ensure that their responses to questions on both direct and cross-examination are not overstated or misleading and are supported by facts and data of the type reasonably relied upon by experts in the field.
In order to reinforce these principals in all of its examiners, the Laboratory has adopted a Courtroom Testimony Policy which codifies the guidelines suggested in the second recommendation. The policy incorporates all of the guidelines for examiner testimony suggested in the items (a) through (e) of the recommendation. [See Electronic Communication, dated 2/6/97, to the Laboratory Division from Donald W. Thompson, Jr., entitled, "Court Testimony and Court Testimony Monitoring Policy."] The Policy is more restrictive, however, concerning an examiner's description of the analyses and conclusions of others (item (f) of the second recommendation). The OIG suggests that examiners should "be accurate and complete in describing the analyses done or conclusions made by others, while remaining careful not to stray beyond their own expertise." On this point, the Laboratory policy states that examiners should "avoid describing the analyses or conclusions of others, particularly when the discussion is outside the discipline or expertise of the employee." [Id. at 1.] The policy then goes on to state that if instructed by the court to answer questions about the work performed by others, the examiner:
should begin by indicating he/she did not perform the examination(s) under discussion, or he/she lacks the qualifications to provide that kind of testimony if outside the examiner's discipline. If instructed by the judge, it is permissible to read the report prepared by another into the record. If it becomes necessary to testify about the work performed by others, the examiner (employee) should be one who is qualified in that discipline. If an examiner (employee) is assigned to handle the testimony for another examiner, the new examiner should have access to notes, charts, tests, reports, and any other material relevant to the case. [Id. at 2.]
This restrictive policy concerning testimony about the work of others supports the third recommendation. Knowing that examiners must be qualified in the relevant discipline before they may testify about the analyses and conclusions of others, the coordinating examiner will be required to determine before trial, in consultation with the prosecutor, which examiner or examiners will be best able to testify in order to present all the required elements of the forensic analyses performed in a particular case.
With respect to the first recommendation, as noted above, courtroom testimony is a key part of the core curriculum being developed for new examiners and will train future examiners in the Courtroom Testimony Policy. In addition, moot court training in asubstantive discipline will now include detailed training on the testimony policy. Finally, the annual seminar for the Laboratory's experienced examiners, described above, will include refresher training on courtroom testimony.
The Laboratory has amended its policy with respect to court testimony monitoring in a manner that satisfies the fourth recommendation. Unit Chiefs are now required to monitor an examiner's courtroom testimony at least once per calendar year by either direct observation (in person or by videotape) or by obtaining and reviewing an official written transcript. [Id.] If the monitoring is done by transcript review, the issues of demeanor, appearance and conduct will be monitored through either written or telephonic evaluations provided by court officials. [Id.] In addition, the Laboratory has taken the added step of requiring that the testimony review include a finding that the examiner's testimony remained within the bounds of his/her discipline or area of expertise. [Id.]
The draft report includes the following recommendations:
(a) The Laboratory should complete the preparation of written protocols that is under way as part of the accreditation process.
(b) Through an effective program of file review, the Laboratory should assure that the authorized protocols are followed in practice.
Response: The FBI concurs in these recommendations. With respect to the first recommendation, the Laboratory is currently refining its existing protocols and writing previously undocumented protocols. This process should be completed by June 1, 1997. This will include the preparation of protocols in areas which are not subject to ASCLD/LAB inspection and accreditation.
It should be noted that our concurrence on this point should not be read to imply that the Laboratory has not previously established and followed validated protocols in its various forensic disciplines. The use of established methods and procedures for analyzing evidence is and has been the general policy and practice of the Laboratory. In some cases, examiners may determine that a departure from an established protocol is appropriate or the development of a new analytical method is in order to perform an accurate and informed analysis of the evidence. Such departures from established protocols must be scientificallyjustifiable and documented with enough specificity so that another examiner can determine from a review of the records what was done and why.
With respect to the second recommendation, all cases are now being technically reviewed before examiner reports are formally issued. In addition, as noted above, the Laboratory plans to have the Quality Assurance Unit create an internal audit group. This group will be made up of qualified personnel who will be responsible for conducting an independent review of a statistically representative sampling of closed cases, from their inception through their final disposition.
11. Evidence Handling
The draft report includes the following recommendations:
(a) The Laboratory should continue to refine its written procedures for handling evidence and for avoiding contamination.
(b) Concerns for the appropriate handling of evidence and prevention of contamination should be incorporated into the design of the proposed new Laboratory facility.
(c) The Laboratory should support continuing efforts to address contamination issues. Examiners and technicians in the Explosives Unit should receive focused training on this topic. Knowledge of contamination issues should be addressed in the training, qualification, and periodic review of all Laboratory examiners.
Response: The FBI concurs in these recommendations. With respect to the first recommendation, the Laboratory issued an Evidence Control Policy in November 1996 which expanded and clarified prior policy in this area. The policy requires the processing of all evidence under sufficient controls to ensure and document the integrity of the evidence at all times while it is in the possession of the FBI Laboratory. Under the policy, the Evidence Control Center is responsible for receiving physical evidence and distributing it to units as assigned. The policy specifies procedures covering all stages of the handling of evidence by the Laboratory, including receipt of evidence, receipt of damaged or non-compliant submissions, sealing and labeling of evidence, chain of custody, transfers of evidence, storage of evidence, and return of evidence.
With respect to the second recommendation, we note that evidence handling and contamination avoidance is a high priority in the design of the new FBI Laboratory.
With respect to the third recommendation, we also note that evidence control is a part of the core curriculum for new examiners and new developments on this issue will be part of the annual seminar for experienced examiners. Moreover, greater collaboration between the Explosives Unit and the Chemistry Unit has already taken place on the issue ofcontamination avoidance. Finally, as discussed above, steps are being taken to expeditiously increase the physical space available in the current Laboratory in order to reduce the potential for cross-contamination.
12. The Role of Management
The draft report includes the following recommendations:
(a) The Laboratory Director and others with significant management responsibilities in the Laboratory should have scientific backgrounds, preferably in forensic sciences. Such persons must also be strongly committed to advancing the Laboratory's quality assurance program and to effective and responsive management.
(b) Management should strongly reaffirm that the Laboratory's primary function is providing reliable and objective forensic results.
(c) Management should seek to cultivate among examiners and other Laboratory personnel a stronger attitude of cooperation and commitment to objective inquiry.
(d) The Quality Assurance Unit (QAU) should be physically located where the Laboratory's forensic work is primarily conducted, and the person in charge of the QAU should report directly to the Laboratory Director.
(e) Management should promote more interaction with other laboratories through such things as technical working groups, and in appropriate cases, FBI examiners consulting with scientists from other laboratories.
(f) In responding to concerns about the quality of the Laboratory's work, management must assure that issues are investigated promptly and thoroughly, that the investigation is conducted appropriately by qualified persons, and that any necessary corrective steps are taken. Disagreements about methodology or the interpretation of data must be resolved professionally based on pertinent scientific knowledge and the resolution must be clearly communicated to those involved.
Response: The FBI concurs in the recommendation that those with significant management responsibilities in the Laboratory have scientific backgrounds. The FBI is initiating a search for a new Assistant Director (AD) to lead the FBI Laboratory. That search will encompass individuals outside the FBI and among the principal qualifications for the position will be an outstanding academic and practical background in forensic science and a reputation for excellence in the forensic community. A strong commitment to quality assurance will be expected of the new AD.
In addition, the Laboratory is creating the new position of Deputy Assistant Director (DAD) for Science and Operations. The new DAD must also possess outstanding scientific credentials and extensive experience in the practice of forensic science. In close collaboration with the AD, the DAD for Science and Operations will spearhead the Laboratory's quality assurance programs and accreditation process. Consistent with the fourth recommendation, the Quality Assurance Unit will be transferred to the Laboratory Division's Front Office and report to the new DAD for Science and Operations. This measure will affirm and emphasize to Laboratory personnel that the management is fully committed to quality assurance and is taking aggressive steps to ensure that quality assurance procedures and policies are vigorously followed in practice.
The Laboratory is also taking steps to establish four supergrade level scientist positions in the areas of biological sciences, chemical sciences, physical/materials sciences, and computer/information sciences. These individuals will have management responsibilities that include special problem solving, scientific and technical advancement, liaison with the relevant scientific communities, and, most importantly, quality assurance of the scientific practices in the Laboratory.
With respect to the sixth recommendation, as discussed above, a Scientific Dispute Resolution process has been established to deal with disagreements about methodology or the interpretation of data. Concerns raised about the quality of the Laboratory's work will be promptly investigated by the Quality Assurance Unit under the supervision of the new DAD for Science and Operations and, when appropriate, corrective steps will be taken.
Consistent with the second and third recommendations, the Laboratory management has and will continue to emphasize and communicate a steadfast commitment to its recently articulated core values of integrity, excellence, responsibility, respect, teamwork and growth. [See 11/21/96 communication to All Laboratory Employees, from Don Thompson, Acting Assistant Director, Laboratory Division, enclosing "FBI Laboratory Core Values."] The core value of "integrity" is defined as "The Laboratory serves justice and pursues truth by ensuring its work is ethical, lawful, objective, and credible." The core value of "excellence" is defined as "The Laboratory provides products and services of the highest quality through a personal commitment to hard work, accuracy, thoroughness, and timeliness." The Laboratory will reinforce these core values in its employees through regular staff conferences and seminars and appropriate communications.
Finally, consistent with the fifth recommendation, the Laboratory has and will continue to interact with other laboratories both on specific cases and in technical working groups and professional organizations studying broader questions. The Laboratory recognizes the value of seeking outside expertise and capabilities to assist it in problem-solving in complex cases. This was done in the UNABOMB, OKBOMB and TWA 800 investigations, and assistance was sought from and provided by the Oakridge NationalLaboratory and Sandia National Laboratory. In addition, as detailed in the conclusion below, the Laboratory is keeping current with, and advancing, developments in various fields of forensic science by initiating technical working groups and maintaining a regular liaison with professional groups such as ASCLD and the American Academy of Forensic Science.
B. FBI Request to the OIG for Further Inspection
The FBI remains firmly committed to enhancing the quality of its Laboratory, and we are grateful that the OIG has dedicated significant resources and time to this inspection. The FBI requests that the OIG conduct progress reviews on the implementation of its recommendations every six months until both the OIG and the FBI are satisfied that the Laboratory has made the changes necessary to address the issues raised in the OIG draft report.