The Federal Bureau of Investigation welcomed the recent opportunity provided by the Department of Justice Office of the Inspector General (OIG) to review the OIGs January 21, 1997 draft report concerning certain units within the FBIs Laboratory Division. We hope that the comments provided in this document assist the OIG in reaching its final conclusions, and in issuing its final report on these matters.
The FBIs primary focus during this period of review was to provide the OIG with comments concerning the accuracy of the initial findings in the draft report. In furtherance of that objective, the FBI enlisted the assistance of its Office of the General Counsel and Laboratory Division. Due to the gravity of the concerns raised in the draft, the FBI also reviewed the OIGs initial findings in contemplation of taking swift action to ensure that any problems that have been identified in the Laboratory will never recur.
The FBI takes full responsibility for the failings which have been identified within its Laboratory. Those that have not already been addressed will be addressed promptly. In that regard, the FBI remains grateful for the OIGs assistance in identifying, isolating, and remedying these matters.
The FBIs commitment to holding its Laboratory to the highest possible standards is reflected in the Laboratorys history. Since its 1932 inception, the FBI Laboratory has consistently strived to enhance its services to the law enforcement and criminal justice communities. Today, we believe the FBI Laboratory remains the best forensic laboratory in the world. The Laboratory is preeminent in a wide range of areas, including the examination and analysis of chemical-toxicological evidence, DNA, fingerprints, explosives, firearms, toolmarks, paints, polymers, metals, hairs and fibers, shoe prints, tire treads, photographic images, and documents. The Laboratory also is a leader in psycholinguistic analysis, polygraphy, computer analysis, and racketeering records analysis.
The FBI Laboratory recognizes the need to provide prompt, accurate, and thorough responses to the thousands of requests it receives annually from international, federal, state and local law enforcement organizations. The FBI Laboratory also is committed to developing innovative uses of technology to facilitate investigations. In fact, over the past several years alone, the FBI Laboratory has been instrumental in critical forensic science developments ranging from validated new uses of capillary zone electrophoresis tests to analyze inorganic materials found in explosives residues, to the recent development (mentioned in the OIGs draft report) of analytical methods for determining the presence of the preservative EDTA in dried bloodstains to provide probative information when allegations of evidence tampering have been made in criminal cases. The FBI Laboratory routinely employs the most sophisticated state of the art technology, and has made enormous contributions to the field of forensic science.
Like other laboratories around the world, the FBI Laboratory continues to evolve, both in the use of the latest available scientific methods and in monitoring and refining its quality assurance programs. With respect to quality assurance, the FBI Laboratory operates under the guidance of detailed protocols, and its personnel are thoroughly trained and supervised. We have not, however, always lived up to our own or the publics expectations of perfection.
At various times over an approximate eight year period, one of the FBI Laboratorys scientists, Frederic W. Whitehurst, raised concerns about individuals and practices within three of the Laboratorys 23 units. Whitehursts concerns took the form of highly charged accusations against his co-workers, including allegations of perjury and suppressing, fabricating, and tampering with evidence. Many of Whitehursts charges were made in connection with cases he did not work on, and about trial testimony he had not personally reviewed. He placed blame with equal force and certainty regardless of whether he had any basis to level such charges. As the OIG would later find, Whitehurst "often accused others of wrongdoing when he did not know the pertinent facts, he has used hyperbole and incendiary language that blurs the distinction between facts and his own speculation, and he has otherwise displayed a serious lack of judgment." [Part Five at 33.]
The sheer volume of accusations made by Whitehurst, the vitriol and certainty with which they were made, and the fact that most of his accusations both facially and after review lacked any foundation, contributed to the unfortunate consequence that the FBI failed to recognize the merit in some of his charges.
Whitehurst then decided to raise his concerns with the OIG through a series of letters which, according to the OIG, numbered in the hundreds. Whitehurst did not provide copies of those letters to the FBI. The OIG assembled the resources needed to investigate all of Whitehursts allegations, employing a team of at least fourteen persons, including five worldwide scientific experts and a separate team of prosecutors and investigators. After a sixteen-month inspection, the OIG issued its January 21, 1997 draft report.
As reflected in the draft, the OIG found the vast majority of Whitehursts allegations to be baseless. Included in the OIGs findings is a rejection of each of Whitehursts charges of perjury, evidence tampering, evidence fabrication, and failure to report exculpatory evidence. Similarly, the report reflects that Whitehursts broad allegations of systemic contamination, improper evidence handling and scientific analysis, and FBI retaliation against him, also lacked foundation. As concerns Whitehurst himself, the OIG found that "Whitehurst appears to lack the judgment and common sense necessary for a forensic examiner," and that Whitehurst could not effectively function within the FBI Laboratory. The OIG recommended that "the FBI consider what role, if any, he can usefully serve in other components of the FBI."
Significantly, however, the OIG also determined that a number of Whitehursts charges had some merit findings which the FBI takes extremely seriously. Most important in this regard are the OIGs particular findings as to one FBI explosives-examiner and one FBI scientist-examiner who had performed unacceptably in connection with a total of three criminal cases. These performance problems relate to the accuracy of the examiners opinions and conclusions, and the reliability of the basis for those opinions and conclusions. The gravity of the concern over the performance of one of these employees is magnified because the cases to which he was assigned included two that are particularly significant: the bombing of the World Trade Center in New York City and the bombing of the Alfred P. Murrah Federal Building in Oklahoma City. The FBI is relieved to learn from federal prosecutors assigned to these cases, who have reviewed the evidence and the OIGs initial findings, that the employees performance errors did not compromise any defendants right to a fair trial. Nonetheless, after reviewing these matters, the FBI agrees with the OIGs overall assessment that these two employees did not adequately perform their duties and that their supervisors inadequately reviewed their work. These failures will not be excused, nor will the FBI permit these failures to recur.
B. The FBI's Commitment to Quality
Within the draft report, the OIG provided the FBI with a number of detailed recommendations to enhance the Laboratorys quality. With few exceptions, the FBI fully concurs in these recommendations and has already implemented some of them. Moreover, the FBI has adopted other recent measures to improve the Laboratory Division, many of which exceed those recommended by the OIG. The FBI wants to assure not only the OIG, but the greater public, that it has no intention of "covering up" its problems. As is evidenced by our full cooperation in the OIGs investigation, we are committed to excellence, and will always pursue it.
The following list outlines the OIGs most significant recommendations to improve the Laboratory and describes a number of actions that the FBI has already taken to implement those recommendations:
(1) External Review: The FBI agrees that the Laboratory should undergo additional periodic review, and requests that the OIG conduct progress reviews on the implementation of its recommendations every six months, until both the OIG and the FBI are fully satisfied that the Laboratory has made the changes necessary to address the issues raised by this investigation. In addition, the Laboratory is pursuing an outreach effort to establish external peer review relationships with other forensic laboratories in various disciplines. Most importantly, the Laboratory will be subject to the intensive external review and monitoring associated with acquiring and maintaining accreditation by the American Society of Crime Lab Directors/Laboratory Accreditation Board (ASCLD/LAB), as further discussed below.
(2) Accreditation: The FBI agrees that the Laboratory should pursue ASCLD/LAB accreditation at the earliest possible time, and it has already begun to do so. ASCLD is nationally recognized and respected, and the FBI is proud to have been instrumental in the formation of that group. 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 anticipates that it will complete its preparations in time to permit it to submit an application for accreditation near the end of 1997. ASCLD/LABs decision to accredit must be made within 12 months of the completion of its on-site inspection of the FBI Laboratory, providing a target accreditation date near the end of 1998.
(3) Laboratory Restructuring: The FBI agrees that the Laboratorys Explosives Unit 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, and will include merging the Explosives Unit with a portion of the Materials Analysis Unit, in order to link two related scientific areas.
(4) Resolution of Scientific Disagreement: The FBI agrees with the need to establish clear guidance for its examiners to follow when encountering disagreements over forensic methods or the interpretation of results. To address that need, the FBI recently distributed a communication to all Laboratory personnel describing in detail the procedures to be followed in the event a scientific dispute arises. That procedure, which will ensure that such disputes are satisfactorily resolved in accordance with applicable scientific principles, will be incorporated into the Laboratory's Quality Manual.
(5) Examiner Reports: The FBI agrees that, rather than follow a procedure whereby a principal examiner assembles a report based on dictation from other examiners, each examiner who analyzes evidence should prepare and sign a separate report. The Laboratory implemented this requirement before the OIG provided the FBI with its draft report. The FBI now requires that, prior to release, reports be reviewed by a unit chief or other qualified examiner for compliance with all applicable procedures. The FBI also has adopted an internal audit program, pursuant to which examiner reports will be subject to annual audits by the Quality Assurance Unit (QAU) to confirm that all necessary documents are included in the case file. Finally, the FBI is establishing a separate audit group in the QAU which will review a representative sample of closed cases to ensure that all aspects of the Quality Assurance Plan are strictly followed.
(6) Examiner Training: In addition to the specialized examiner training already provided for each unit of the Laboratory, the FBI agrees that the Laboratory should implement a uniform curriculum for examiner training that addresses common issues such as case documentation, report preparation, examiner ethics and testimony. In order to meet thatobjective, the Laboratory is refining its current mandatory core curriculum for new examiner qualification, which addresses issues common to all forensic disciplines.
C. The FBI's Comments on the Draft Report
Although this Executive Summary will not highlight the FBIs review of the specific factual findings in the draft report, the following is a summary of the FBIs comments as to certain global aspects of the draft report, and as to a few recommendations in the draft report, with which the FBI disagrees.
(1) Implication that the Laboratory Has Not Already Modified Procedures
In Part Two of the draft report, the OIG recognizes that a number of changes in Laboratory practices have already occurred due to the Laboratorys decision over the last several years to implement a formal quality assurance plan and to seek accreditation by ASCLD/LAB. The OIG then notes that "[i]n evaluating Whitehursts accusations that others have violated Laboratory policies or otherwise acted unprofessionally, it is important to recognize that the Laboratorys practices related to quality assurance have evolved significantly." [Part Two at 4-5.]
Despite this acknowledgment that Laboratory policies and procedures have been modified significantly since many of the events at issue occurred, the draft report repeatedly comments that particular cases demonstrate the need for a change in those policies and procedures without also noting that changes have already been made. [See , e.g. , Part Three, Section A at 35 (stating that problems in the Rudolph matter might have been prevented if the Laboratory had established a formal quality control program which provided guidelines for case documentation, adequate case review and the use of properly validated protocols, which the Laboratory has already done); Part Three, Section B at 29 (stating that the Laboratory would benefit from, among other things, clearer guidance as to the scope of principal examiner testimony regarding work performed by AEs, improved record retention and retrieval systems, written and validated protocols for standardized procedures, and file review to ensure conclusions are supported by appropriate analysis and data, changes that the FBI has already implemented); Part Three, Section C at 64 (Williams testimony in World Trade Center case exemplifies the need for many of the Laboratory improvements described in Part Six, many of which have already been implemented); Part Three, Section E at 39 (Hahn s conduct exemplifies the need for additional training of examiners regarding courtroom testimony, which is already being undertaken by the Laboratory); Part Three, Section H1 at 14 (noting that the Yu Kikumura case illustrates the desirability of clearer guidelines for and effective monitoring of examiner testimony, policies that have been implemented by the Laboratory).] We believe that the sheer number of those comments, made throughout the draft report, undermine the general statement quoted above, and may lead to the incorrect impression that many, if not most, of these issues have not been considered by the FBI at all. In fact, as discussed in detail in Section III of the FBIs response, the FBI has already implemented many of the OIGs recommendations and, in some instances, has surpassed those recommendations in adoptingpolicies and procedures that will ensure that the high-quality work performed by the Laboratory continues.
As stated earlier, the FBI greatly appreciates the OIGs recommendations for improving the Laboratory. However, we believe that, by including those recommendations in the analyses of numerous individual cases as well as Parts Six and Seven of the draft report, the OIG fails to give sufficient recognition to the changes that have already been made. We therefore request that, to the extent sections of the draft report other than Parts Six and Seven discuss the need to improve Laboratory practices, those discussions be omitted.
(2) Failure to Always Recognize Courtroom Dynamics
While we generally agree with the draft report's recommendations on guidelines for examiner testimony, we are concerned that many of the OIG's comments in the body of the report regarding such testimony fail both to recognize certain courtroom dynamics and to acknowledge protocols that already exist within the FBI.
As noted in the draft report, one cannot expect an examiners work or testimony to have been perfect in every case if it is subjected to a detailed, after-the-fact analysis like that employed in our investigation. Laboratory examiners work under time constraints and other pressures; scientists can legitimately differ in their interpretation of data; and knowledge and practices in forensic disciplines evolve over time. We also reviewed, with the benefit of hindsight, certain testimony given under courtroom examination, where a witness generally cannot reflect at length on the questions and answers. [Part Two at 1-2.]
We agree with this prefatory remark, but believe that its impact and caution have been lost along the way.
A trial is an adversarial process with witnesses subject to both direct and cross-examination by parties seeking to elicit testimony which supports their respective theories of the case. The basic testimonial role of a Laboratory examiner in this process is the same as that of any expert witness in that, as reflected in the Federal Rules of Evidence, the expert examiner is present at trial to assist the trier of fact to understand the evidence or to determine a fact in issue.
We agree that in order to maintain their objectivity and credibility Laboratory examiners must ensure that their responses on 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. And, of course, examiners must testify accurately. Nevertheless, the draft reports approach towards this subject requires greater balance. It must be acknowledged that the examiner-witness is seeking to explain complicated scientific data and material to the average layperson (non-scientist) to assist the jury in making a determination regarding the ultimate issues in the case. Many of the OIG's comments that call for greater accuracy and precision in examiner testimony fail to recognize the role of the expert at trial as a translator of technical information and a facilitator of jury comprehension of scientific material. A hyper-technical discussion of scientific issues will not aid the trier of fact. Therefore, expert witnesses are constantly attempting to strike a proper balance between furnishing technical information and having their testimony comprehended by the average juror.
We believe that the OIG's findings that certain examiners testified outside the scope of their expertise fail to appreciate the role of the expert in the criminal process. The Federal Rules note that the fields of knowledge which may be drawn upon for expert testimony are not limited merely to the "scientific" and "technical" but extend to all "specialized" knowledge. Under the Federal Rules, the expert is viewed not in a narrow sense, but as a person qualified by "knowledge, skill, experience, training or education." Many of the OIG's findings fail to take into account the existing legal standard for expert testimony and, in turn, the OIG has placed inappropriately narrow constraints on the scope of an examiner's expertise. These findings often fail to acknowledge the wider boundaries of expert testimony envisioned by the Federal Rules and fail to account for the knowledge, training, and experience that our Laboratory examiners have developed during their careers. In addition, although not noted in the draft report, whether a witness is qualified to testify as an expert in particular areas is itself the subject of voir dire, and the courts oversight and express rulings. On some occasions, courts have requested that our examiners provide "summary testimony," while recognizing and explaining to the jury the limits of their expertise.
Moreover, although we agree with the OIG's finding that greater guidance is needed in the area of examiner testimony, the draft report suggests on numerous occasions that examiners were not previously instructed to testify accurately and within their expertise. The FBI has always recognized that the credibility of its Laboratory examiners relies not only on their performing objective forensic 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." To that end, FBI examiners have consistently been directed to provide straightforward, clear and objective testimony within the boundaries of their respective expertise. In accordance with these fundamental principles of expert testimony, the FBI has long held moot courts as a part of the Laboratory's qualification process to rigorously test the clarity, precision, logic and objectivity of a new examiner's testimony. To reinforce these principles in all of its examiners, the Laboratoryhas adopted a Courtroom Testimony Policy which essentially codifies, and is sometimes more restrictive than, the guidelines for examiner testimony suggested by the OIG. The Laboratory will continue to emphasize the importance of clarity and accuracy in examiner testimony to ensure that the highest standards for expert testimony are met. It is improper, however, to suggest (as the draft report does) that there has been a complete absence of these standards, and that requiring accurate testimony would be new to the FBI.
(3) Discussions About Prosecutorial Bias
The FBI strongly objects to the draft reports suggestion, however limited, that one or more of the FBI Laboratorys examiners may have intentionally biased their findings, reports, or testimony in order to favor the prosecution. [See, e.g. , Part Three, Sections A at 10, G at 1, and E at 39. ] It is paramount to the Laboratorys mission that its work be conducted with complete objectivity. To charge that the Laboratory acted otherwise is an extremely serious allegation, and one that lacks support.
A clear distinction must be made between a Laboratory examiner who develops his or her own expert opinion, based on all the available evidence, and somebody who provides "biased" testimony. Although an examiners theory might be consistent with the prosecutions theory, to suggest that any of the Laboratorys examiners skewed his or her opinions to favor the prosecution is without basis. The draft report omits the fact that examiners usually reach their expert opinions as to certain findings well before the governments case is brought. Moreover, the FBI Laboratory routinely produces forensic evidence that exonerates suspects and which results in decisions by prosecutors to decline prosecutions. In fact, our examiners are frequently called upon to testify on behalf of defendants.
(4) Subjective Commentary
In the context of its review of examiner conclusions, the OIG repeatedly expresses "serious concern" and indicates that it is "deeply troubled" by certain findings. We take issue with the inclusion of such commentary and ask that these references be deleted. We believe that the fact-finding objective of the OIG is compromised by the insertion of such subjective opinion.
(5) Conclusions About the Proper Role of Explosives Unit Examiners
The draft report recommends that the investigative and crime scene management functions of the Explosives Unit (EU) be transferred out of the Scientific Analysis Section. This recommendation is based upon a view of the role of the EU examiner with which the FBI respectfully disagrees. Therefore, we are not inclined to follow this particular recommendation.
Bomb scene investigations are unique. Observable damage to the post-incident site often has significant evidentiary value, sometimes providing clues to help solve these crimes. The knowledge of specific explosives devices and their effects on particular materials may be significant in searching for bomb-related evidence. Some of this evidence might, for example, include the rearrangement of the normal contents of a building or structure, and offer clues as to the explosive force of the device involved. It is not unusual for an explosives examiner, based on years of experience (which cannot be obtained in a classroom), to help develop the most systematic approach to the collection of explosives evidence at a crime scene. In addition, firsthand observations by EU examiners at crime scenes are among the facts and data upon which they may properly base an expert opinion.
Although the OIG notes that there is a trend toward increasingly technical and sophisticated techniques for forensic bombing examinations, the FBI, as well as the Forensic Explosives Laboratory in Great Britain, recommends that forensic explosives scientists be present at the scenes of certain explosions. The FBI believes that precluding EU examiners from an investigative role would eliminate a potential basis upon which they could learn about the workings and effect of explosive devises and an opportunity for them to share their knowledge to help apprehend those involved in these awful crimes. As a result of these considerations, the FBI is not inclined to transfer the EU's investigative and crime scene management functions to the Evidence Response Team (ERT) Unit. Rather than require completely different personnel to investigate explosive cases and oversee the collection of evidence, the FBI plans to continue, as it has long advised other forensic laboratories, the practice of having its experienced explosives examiners participate in post-incident examinations.