GFALE II Domain V Professional Responsibility

When was the Texas Forensic Science Commission created?

during 79th Legislative Session in 2005

What does the Texas law require of the Commission?

*"investigate, in a timely manner, any allegation of professional negligence or professional misconduct that would substantially affect the integrity of the results of a forensic analysis conducted by crime laboratory"

and

*develop & implement a reporting system for crime labs to report professional negligence or misconduct

What does forensic analysis mean?

a medical, chemical, toxicological, ballistic, or other expert examination or test performed on physical evidence, including DNA evidence, for the purpose of determining the connection of the evidence to a criminal action

-excludes latent fingerprint analysis, breath test specimen, the portion of an autopsy conducted by a medical examiner or licensed physician

How many members are on the Commission?

9 members: 7 scientists or medical doctors, 2 attorneys

Who is the Presiding Officer?

Jeffrey Barnard, MD

What do the Commission's administrative rules describe?

*the process by which it decides whether to accept a complaint or self-disclosure for investigation as well as the process used to conduct the investigation

*process for appealing final investigative reports as well as any resulting disciplinary action against license holder or applicant

What is the ultimate result of the Commission's investigation set forth by the administrative rules?

issuance of a final report

professional misconduct

the forensic analyst or crime laboratory, through a material act or omission, DELIBERATELY failed to follow the standard of practice that an ordinary forensic analyst or crime laboratory would have followed, and the deliberate act or omission would substantially affect the integrity of the results of a forensic analysis.

An act or omission was deliberate if the forensic analyst or crime laboratory ____________________.

WAS AWARE OF AND CONSCIOUSLY DISREGARDED an accepted standard of practice required for a forensic analysis

Professional negligence

the forensic analyst or crime laboratory, through a material act or omission, NEGLIGENTLY failed to follow the standard of practice that an ordinary forensic analyst or crime laboratory would have followed, and the negligent act or omission would substantially affect the integrity of the results of a forensic analysis.

An act or omission was negligent if the forensic analyst or crime laboratory:

SHOULD HAVE BEEN BUT WAS NOT AWARE OF an accepted standard of practice.

What does the Texas Code of Criminal Procedure prohibit?

forensic analysis from being admitted in criminal cases if the crime lab conducting analysis is not accredited by Commission

What does the term 'crime laboratory' include?

public or private lab or other entity that conducts forensic analysis

What is the forensic analyst licensing program?

1. establishes qualifications for a license

2. sets fees for issuance and renewal of a license

3. establishes term of a forensic analyst license

What is the definition of "forensic analyst?"

"a person who on behalf of a crime laboratory [accredited by the Commission] technically reviews or performs a forensic analysis or draws conclusions from or interprets a forensic analysis for a court or crime laboratory"

AND

*have to hold a forensic analyst license issued by the Commission effective 01/01/2019

What happens if the Commission determines a license holder has committed professional misconduct or violated an administrative rule?

1. revoke or suspend the person's license (if suspended could be placed on probation)

2. refuse to renew the person's license

3. reprimand the license holder

4. deny the person a license

What statutory limitations does the Commission have?

- no finding by the Commission constitutes a comment upon the guilt or innocence of any individual

- Commission's written reports not admissible in civil or criminal actions

- Commission has no authority to subpoena documents or testimony

Example of professional misconduct: Analyst lost a questioned hair

DPS analyst lost a questioned hair while transferring evidentiary items

-did not document or report to supervisor at the time

-changed documentation to attempt to conceal it

*Commission found the Analyst committed professional misconduct by failing to report the loss of Hair 16 & changing the underlying documentation in an attempt to conceal it

What provisions of the Code of Professional Responsibility did the analyst violate?

analysts are expected to:

1. avoid tampering with evidentiary materials

2. conduct thorough, fair and unbiased examinations

3. make and retain full, contemporaneous, clear and accurate written records of all examinations

4. base conclusions on procedures supported by sufficient data, not on outside influence

5. present accurate and complete data in reports, oral and written presentations

6. retain any record, item, or object related to the case, such as work notes, data, and peer or technical review

7. communicate honestly and fully with all parties

8. document and notify management or quality assurance personnel of adverse events, such as an unintended mistake, or breach or ethical, legal, scientific standards, or questionable conduct

What four observations from the analyst case merit emphasis?

1.note retention- supervising analyst kept her notes to compare with analyst's

2. photomicropraphs- essential to case truth, they showed characteristics of questioned hairs

**important to include photographic evidence in casework, especially for disciplines in which the strength of an association may be dependent on a visual comparison of certain characteristics

3. proactive steps taken by management- both supervising analyst and section manager took the situation seriously and took appropriate steps to investigate

4. remote supervision- DPS has suspended practice of interlaboratory mentoring

What is the purpose of the Code of Professional Responsibility for Forensic Analysts and Crime Laboratory Management?

to provide a framework for promoting integrity and respect for the scientific process and to encourage transparency in forensic analysis in Texas

Where can the Code of Professional Responsibility be found?

Title 37 of Texas Administrative Code

What recommendations in the commission report?

- evaluate internal practices with respect to the retention of notes in the context of supervised casework across laboratory system. Consider whether any adjustments need to be made to mitigate risk of lost information

- evaluate which disciplines currently require photographic documentation and in what contexts

- provide copy of this investigative report to the prosecutors contacted who had cases analyzed by the analyst. This will ensure they have full understanding of the facts and circumstances and can make an informed decision about whether any of the cases merit re-analysis as well as meet any disclosure obligation under Texas law

- consider establishing criteria for the types of activities that are appropriate for remote supervision and those that are not, and distribute guidance throughout the system to assist managers with planning and training options

- Commission staff will contact the Texas Association of Crime Laboratory Directors to recommend the organization survey the extent to which video recording is used in labs, and consider the pros and cons of installing video recording systems not only as part of laboratory security in general but also to document work performed at the bench. Not intended to be punitive but rather represents one approach to mitigating risk

According to the Code, each forensic analyst shall:

1. accurately represent his/her education, training, experience, and areas of expertise

2. commit to continuous learning in the forensic disciplines and stay abreast of new findings, equipment and techniques to maintain professional competency

3.promote validation and incorporation of new technologies, guarding against the use of non-valid methods in casework and the misapplication of validated methods

4. avoid tampering, adulteration, loss, or unnecessary consumption of evidentiary materials

5. avoid participation in any case where there are personal, financial, employment-related or other conflicts of interest

6. conduct thorough, fair and unbiased examinations, leading to independent, impartial, and objective opinions and conclusions

7. make and retain full, contemporaneous, clear and accurate written records of all examinations and tests conducted and conclusions drawn, insufficient detail to allow meaningful review and assessment by an independent person competent in the field

8. base conclusions on procedures supported by sufficient data, standards and controls, not on political pressure or other outside influence

9. not offer opinions or conclusions that are outside one's expertise

10. prepare reports in clear terms, distinguishing data from interpretations and opinions, and disclosing any relevant limitations to guard against making invalid inferences or misleading the judge or jury

11. not issue reports or other records, or withhold info from reports for strategic or tactical litigation advantage

12. present accurate and complete data in reports, oral and written presentations and testimony based on good scientific practices and valid methods

13. testify in a manner which is clear , straightforward and objective, and avoid phrasing testimony in an ambiguous, biased or misleading manner

14. retain any record, item, or object related to a case, such as work notes, data and peer or technical review info due to potential evidentiary value and pursuant to the lab's retention policy

15. communicate honestly and fully with all parties, unless prohibited by law

16. document and notify management or quality assurance personnel of adverse events, such as an unintended mistake

17. ensure reporting, through proper management channels, to all impacted scientific and legal parties of adverse event

According to the Code members of crime lab management shall:

1. encourage a quality-focused culture that embraces transparency, accountability and continuing education while resisting individual blame or scapegoating

2. provide opportunities for forensic analysts to stay abreast of new scientific findings, technology and techniques while guarding against the use of non-valid methods in casework, the misapplication of validated methods or improper testimony regarding a particular analytical method or result.

3. maintain case retention and management policies and systems based on presumption that there is potential evidentiary value for any info related to a case

4. provide clear communication and reporting systems through which forensic analysts may report to management non-conformities in quality system and other adverse events

5. make timely and full disclosure to the Texas Forensic Science Commission of any non-conformance that may rise to the level of professional negligence or professional misconduct

6. provide copies of all substantive communications with lab's national accrediting body to the Commission

7. for any lab that performs forensic analysis on behalf of State of Texas, develop and follow written forensic disclosure compliance policy for purpose of ensuring lab's compliance with article 39.14 of Texas Code of Criminal Procedure

8. ensure lab's forensic disclosure policy provides clear instructions for identifying and disclosing any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of lab

9. inform all forensic analysts working on behalf of lab that they may report allegations of professional negligence or professional misconduct to Texas Forensic Science Commission without fear of adverse employment consequences

What is the importance of the first provision of the Code?

Honest Representation of Education, Training & Expertise

Published research shows that judges & juries are likely to afford significant weight to information provided by scientific experts whether it is an assigned report or during testimony at trial

Example: David Camm Case: Indiana

First Provision: Honest Representation of Education, Training & Expertise

-murder case in Indiana

-crime scene photographer testified at trial that he was a trained scene reconstructionist working on advanced degrees in fluid dynamics;

--not true;

--misrepresenting education and qualifications

Texas Lab Example: Toxicology

First Provision: Honest Representation of Education, Training & Expertise

-chief toxicologist at Texas accredited lab had master's degree in physiological sciences with coursework in toxicology and testified that degree was in toxicology

-discrepancy between toxicologist's CV & testimony

Compare/Contrast Camm (Indiana) case & Texas Lab case

*Indiana: total lack of transparency with severe consequences that endured in the case for years

*Texas: every actor within the system worked diligently to address the issues & problems identified both in the initial flagging of the testimony regarding qualifications & in other issues that were identified as the matter was being investigated

-lab expanded retroactive case review to include even more cases than originally contemplated

-used root cause analysis

Root Cause Analysis

This approach is essential to ensuring integrity and reliability of the laboratory and to protecting the laboratory's reputation within the community.

Why can continuing education be challenging for labs?

Second Provision: Maintaining Up-to-Date Knowledge

1) the first thing to be cut in lab's budget is training

2) policy makers expect lab analysis to be done in a certain timeframe and there is a lot of pressure for labs to generate case work & to get cases out the door to customers, leaving less time for training

3) disciplines have challenges when it comes to implementing the lessons learned at conferences and seminars once the analyst returns to the bench

Alternative Light Source Example

Third Provision: Using Valid Methods

-analyst using non-validated method

-analyst used unauthorized personal ALS & did not meet specifications outlined in lab's SOP, which stated that it had to operate at diff wavelengths and analyst's operated at only one

-lab took appropriate action to address it to see whether other cases were impacted & to notify stakeholders accordingly.

Example: Massachusetts

Fourth Provision: Guarding Against Tampering

-drug analyst Sonya Farek

-had severe addiction problems and would steal evidence from lab

-would be high on the job & when she'd testify

-prosecutors knew of her problem but concealed the full extent of her actions

-lab was not accredited

-lab supervisor found to have acted with deliberate indifference

Example: Texas

Fourth Provision: Guarding Against Tampering

-lab manager was taking painkillers from evidence vault

-lab immediately contacted appropriate investigating authorities both inside organization and DA's office

-lab internal investigation was done and analyst prosecuted

-lab self-disclosed & continuously takes responsibility

--different from situation in Mass. example

Fifth Provision: Avoiding Personal Conflicts

A common example of a potential conflict in forensic labs might be when the lab receives evidence to analyze in a case where an analyst or management staff member has personal relationships.

-it would be inappropriate for that analyst to be assigned to work the case

DNA Example: Texas Lab 1 email to Texas Lab 2

Sixth Provision: Conducting Fair, Unbiased & Thorough Examination

*email was sent with detailed information about the prosecutor's theory of the case is & what the state wants to be able to demonstrate in DNA results;

-"but I think they really want to be able to put him at the scene"

-raises questions about whether the lab understood its role in the criminal justice system, which is to provide unbiased and independent information to the trier of fact to the extent humanly possible.

It is appropriate for the first laboratory to communicate a certain amount of contextual information to the second laboratory, so that the second laboratory can be effective in performing the analytical work. However, the information communicated should be ___________ to that which is relevant to the scientific analysis.

Sixth Provision: Conducting Fair, Unbiased & Thorough Examination

limited

Example: Serology

Sixth Provision: Conducting Fair, Unbiased & Thorough Examination

-senior DNA analyst retrieved sexual assault kit from evidence storage for further testing

-DA had requested DNA analysis & had not yet been completed, but sexual assault kit had already undergone initial serological screening

-analyst noticed seals on some evidence seemed not broken, but screening reported negative AP tests for all samples in the kit

*reports were issued without all items being tested

-more cases were investigated & found the same problem;

-performed examinations base on offense reports & records for the cases instead of following protocol

*an example of exams that are both biased by information contained in the offense report & that lack the thorough analysis expected based on the report issued by the serologist

Example: Records of All Examinations

Seventh Provision: Maintaining Full & Detailed Records

-case from San Jose, California;

-San Jose police failed to let anyone know that fingerprint technicians who had reviewed the case could not agree whether a suspect's prints were identified to those taken from crime scene;

-the report saying only two technicians agreed & omitted the third one who disagreed

Firearms Example: Texas Part 1

Seventh Provision: Maintaining Full & Detailed Records

-homicide case where there was no gun recovered at the scene

-later Taurus revolver was found and submitted for examination & was reported to be a match;

-investigative work confirmed that the gun analyzed belong to a different group

*root cause of the misidentification found that examiner attributed too much significance to a small amount of matching striae

Firearms Example: Texas Part 2

Seventh Provision: Maintaining Full & Detailed Records

-examiner also provided insufficient photographic documentation in case record to support positive ID

-Lab's SOP at the time required photographic documentation in order to illustrate representative regions of microscopic similarity,

-but the Commission's expert observed that photographs were insufficient to provide full & convincing justification for identification made by examiner

-lab took steps to ensure this practice was improved

Outside Influence Example: Massachusetts

Eighth Provision: Basing Conclusions on Data, not Outside Influence

-drug analyst, Annie Dookhan worked for lab at Public Health Department

-was known as Superwoman

-she outperformed peers in terms of quantity of analyses she did;

-processed 3-5x more cases than other analysts;

-after investigation it was found she was "dry-labbing" many cases, fabricating test results, taking evidence, keeping it at her bench, & pulling drugs from other cases to support her work on the case that was actually before her;

-she had very close relationship with prosecutors of these cases;

-21,000 cases were dismissed because of rampant misconduct

Example: Joe Bryan Case

Ninth Provision: Staying within Expertise

-homicide of Joe Bryan's wife;

-she was shot in her home & back spatter was key piece;

-unqualified bloodstain analyst testified & exceeded her expertise in certain areas, such as fibers from flashlight consistent with fibers from trunk, yet no fiber comparison was done,

-was not a bloodstain pattern expert but offered opinions on direction of bloodstain,

-testified "it was the victim's head hair" which is scientifically unsupportable

Example: Greg Taylor Case: North Carolina

Tenth Provision: Preparing Reports Clearly; Distinguish Opinion; Provide Limitations; Guard Against Misleading Inferences

-murder case where Greg Taylor was convicted for murder & later exonerated;

-analyst conducted serology screening on stains & issued a report that stated that there were chemical indications of blood found on defendant's vehicle that had been swabbed;

-report did not include that subsequent confirmatory testing was negative for blood

-misled jury to believe there was blood on truck

Example: Tactical Advantage Case Study: Duke Lacrosse

Eleventh Provision: Avoiding Involvement in Lawyering Tactics

-woman accused 3 Duke lacrosse players of rape & evidence was sent to the sate lab for semen testing;

-lab's serology screening was negative for semen & evidence was not forwarded for DNA testing;

-prosecutor sent it to private lab & worked with lab to omit highly exculpatory results

-prosecutor had a political interest & ensuring the case was resolved with the finding of guilt against the defendants were reasons for the omission

-certain test results were just omitted from lab's report

-analyst fired/prosecutor disbarred

Example: The Steven Mark Chaney Case

Twelfth Provision: Using Good Scientific Practice & Valid Methods

-Mr. Chaney was convicted of two murders;

-bitemark evidence was used & forensic odontologist testified to a degree of dental certainty that Chaney left the mark;

-because injuries on human skin are difficult to assess based on variability, the Commission has ultimately decided that bitemark comparison not be used in criminal cases in Texas;

*there is no scientific basis for stating that a particular patterned injury can be associated to single individual's dentition;

*no scientific basis for assigning probability or statistical weight to an association, regardless of whether such probability or weight is expressed numerically or using some sort of verbal scale

Example: Microscopic Hair Comparison Testimony Review

Thirteenth Provision: Testifying in a Straightforward & Objective Manner

-prosecutor questioned analyst on why he cannot individualize the questioned hair to a known

-responds with he is very confident hair belonged to suspect

-despite there not being sufficient data and research to support individualization

-testimony was misleading to trier of fact

Example: Laboratory Disclosure Documentation & Notes

Fourteenth Provision: Retaining Records

-analyst did not record, per lab's SOP, camera settings at a crime scene & said they were not displayed even though it was inaccurate information;

-section supervisor sent her back to the scene & get photos that were required,

-analyst did but changed the date to the original date where they were called out;

-when asked to upload her original scene notes, lab management found she had shredded those scene notes before scanning them to LIMS & before obtaining an electronic copy;

-lab self-disclosed & found the analyst had done this other times

Example: Full and Honest Communication

Fifteenth Provision: Communicating Fully with All Parties

-analyst was working on blood sample & accidentally switched them,

-he began a corrective action when he found the incident;

-discovery in other hearings & defense would bring up this situation, he was asked if had ever switched a blood vial before & analyst responded no,

-analyst said he said no because he had switched a gray top tube & not a vial but answer was misleading;

-lab did an internal analysis & found analyst himself switch between vial & tube;

*this case teaches that wordsmithing or otherwise leaving an incomplete or incorrect picture in the mind of the judge, the jury or the lawyers is highly problematic for forensic analysts

-analysts should be honest and forthcoming

Example: Seized Drugs Drylabbing Disclosure

Sixteenth Provision: Documentation & Notification of Adverse Events

-analyst working on an Alprazolam tablet was struggling to obtain sufficient data to support analytical results pursuant to lab's SOP;

-another analyst saw that other evidence was being used to support results & colleague reported it to management

-investigation was conducted

*resulted in major court decision by Court of Criminal Appeals discussing the impact of professional misconduct in one case on the overall body of an analyst's case work, & the appellate rights of defendants who had that particular analyst work their case

*the expectation is that analysts will remember that the integrity of the laboratory is everything & say something, so at least the issue can be vetted & an investigation performed.

Seventeenth Provision: Notification of Adverse Events Affecting Prior Casework

-capital murder trial with DNA analysis & the trial concludes;

-defense notices a mistake & contacts analyst & she realizes she did make mistake in testifying

-upper limit for likelihood ratio is 1000 for inconclusive range, upper limit for LR for the inconclusive range she had set at trial was 1000 but actual validated limit was 10,000;

-analyst recognized error & lab took responsibility & made correction

What is the importance of the Seventeenth Provision of the Code?

Seventeenth Provision: Notification of Adverse Events Affecting Prior Casework

that anything that is discovered, whether it be a simple mistake in speaking, a misstatement or an adverse event that occurs in the laboratory where you realize that past cases could have been impacted, there is an obligation to assess the extent to which something could impact cases already adjudicated