LABORATORY ANALYTICAL PROCEDURES
Most forensic science laboratories commit their analytical procedures to writing (standard operating procedures, or SOPs), validate all methods, and develop schemes for the analysis of various types of scientific evidence. All laboratories should have rigorous protocols for administrative and technical reviews of their analyzes and reports, but there are no consensus standards or uniformity across agencies for when and how to accomplish this. Potential ethical violations can occur when forensic scientists do not follow established procedures for the analysis of evidence or use unvalidated methods. This can happen in a number of ways. One issue is the determination of when sufficient testing has been done in a given case that will scientifically support the examiner’s conclusions. Mostly it is up to the individual laboratory or even each examiner as to the sufficiency of analysis. Cer tainly the courtroom is no place to determine this; the judge, jury, and attorneys do not know enough about the science to determine that the chosen analytical scheme was dispositive. Related to the issue of sufficiency is another problem, indiscriminate analysis of evidence. In these cases, the examiner doesn’t have a plan or scheme in mind, they use every possible test for which the laboratory has the resources, in an effort to impress the court, find the desired or expected answer, or to increase their payment (in the case of private experts). Without objective measures about suffi ciency of analysis and what constitutes a proper analytical scheme, indiscriminate analysis will continue to confound judges, juries, and attorneys. A scientist may even perform insufficient testing to support the conclusions about the evidence. An ana lyst may do a set of preliminary examinations on evidence and then fail to perform the final, confirmatory test which provides the clinching data to support the conclu sion. The opposite can also occur. An analyst, in order to save time, skips all of the preliminary tests and goes right to the confirmatory test even though this may give misleading results because the preliminary tests may have yielded data that the confirmation misses. Confidence is enhanced if two or more different methodolo gies yield the same result. An example of this is in drug cases, where doing only a GC/MS test without more general screening and separation tests may miss the presence of additional drugs or with textile fibers where only FTIR is conducted and not microscopy (cotton and rayon are both cellulosic, giving the same spectrum, but are easily distinguished by microscopy). The “why” becomes important in such cases, as it leads to the cause and the solution; it may be insufficient training, laziness, or poorly maintained equipment. Sometimes forensic scientists are guilty of analyzing their evidence to meet the conditions of the law. This means that the potential data outcome is preselected— chosen or manipulated—to conform to one or more conditions of the applicable law(s) controlling that evidence, so that the results cause the evidence to fall into a specific category that might carry a higher penalty. There are a number of examples
of this in the analysis of drugs, wherein the penalties for possession or distribution may depend upon the quantity present. If the quantity is very close to the amount that triggers a higher penalty, some drug chemists may shade the weight to get over the trigger point in order to permit charging the higher penalty offence. This can also cut the other way, where the chemist deliberately shades the weight down to prevent a higher charge from being filed. Both practices might be considered unethical—but if there is a rounding issue or a truncation of a result, for example, in a DUI case, the blood alcohol might be reported as 0.07 gm/dL, truncating the value, or as 0.08 g/dL, rounding up, based on the analytical result of 0.079 g/dL, when the legal threshold is 0.08 g/dL. If such reporting modifications are employed, the best practice would be to provide all the data, the actual result, and what the manipulation was. When in doubt, always err on the side of caution and transparency.
Perhaps the most extreme form of unethical practice in a forensic science laboratory is the practice of “dry-labbing.” This occurs when an analyst reports results without performing the analysis; that is, he or she makes up the answers. In some cases, dry-labbing is done when the results appear to be obvious, such as when the evidence is a clear, plastic bag containing suspected marihuana. The look and smell is a good indication of the presence of marihuana, but dry-labbing could miss the presence of other drugs coating it or mixed in with it. This practice can never be accidental except in the instance of a gross mix up of cases and is never a training issue: The analyst simply does not do some or all of the work. Examples of dry-labbing almost always end with an inculpatory result, favoring the prosecution. There are some indications that Fred Zain, the West Virginia criminalist who was alleged to have nearly always achieved inculpatory results, may have engaged in this practice and it would take more than an administrative review of cases to uncover it.1 Dry-labbing need not be all or nothing. Jacqueline Blake, a scientist with the FBI Laboratory from 1988 to 2002 resigned after it was found that she had not processed negative controls for DNA analyzes, resulting in genetic profiles being pulled from databases, evidence being consumed with none remaining, and delay of results. She did this through lying to her supervisors and a weak agency policy on reviewing certain data.2 Reanalysis of evidence would be most effective but this is very time-consuming and difficult. In any case, regardless of the “how” or “why,” dry-labbing is always a serious ethical violation and it is inconceivable to construct a valid defense for willfully saying a test was performed that was never done. Another ethical issue in regards to the analysis of evidence can be termed “analyzing to the law.” An example can be found in the laws that many states and the Congress have written over the years that set out graduated penalties for possession and/or distribution of certain illicit drugs. These statutes proscribe higher penalties for dealing in larger quantities of drugs. For example, possession of more than one pound (453 g) of cocaine will trigger a longer prison sentence than a lesser amount of the drug. In a case where the weight of the exhibit is very close to a pound, the analyst might report that the weight is over the limit, thus triggering the higher penalty. If reanalysis of the evidence is absent, a rare occurrence, then there would be no way of discovering that the weight had been incorrectly recorded.
