Forensic labs across the country have been subjected to a barrage of criticism. Much of that criticism is well-founded. In January 2013 the New York City Medical Examiner’s office confirmed that it was reviewing more than 800 rape cases for potential mishandling of DNA evidence. The review has uncovered 19 cases in which DNA evidence was commingled with DNA evidence from other cases.
In December of 2012 a chemist at the state drug lab in Boston was indicted on 27 counts of tampering with evidence and other charges consisting of faking test results, contaminating drug samples and forging signatures to lab reports.
Other such problems have been reported and uncovered in many other jurisdictions.
Forensic Labs Should Be Accredited
Many of these state and local labs are not accredited. The national accrediting agency is the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB).
Accreditation by this agency is considered to be a step forward although many problems have also been noticed with this certifying agency. The agency in particular is felt to be too chummy with lab directors.
The problem with laboratory results has been found not only at the state and local level but also at the federal level. The FBI crime lab has been exposed for several scandals; first in the explosives unit, then in its DNA unit, then in the comparative bullet-lead analysis unit and then in the hair microscopy unit.
In North Carolina recently, analysts there had withheld or distorted evidence in more than 230 cases including 3 cases that resulted in execution.
Forensic Labs & Personal Injury Cases
Forensic lab reports frequently come into play in personal injury cases, in particular in regards to blood alcohol analysis.
Although blood alcohol analysis may be somewhat perfunctory, care needs to be taken to make sure that the laboratory is not only properly accredited but also that the technicians performing the tests are accredited and are complying with accepted procedures as to the testing.
Drug Testing Labs
Drug labs have been under increasing scrutiny since the New England fiasco in the summer of 2013. In addition now to the compounding pharmaceutical companies that have been under scrutiny, the labs that test their products are also under scrutiny. The FDA has found unsanitary conditions and sloppy procedures at not only these compounding pharmacies but also the laboratories that tested product.
Drug Labs Cited
The FDA has cited five labs for more than 70 different safety problems as reported in an October 6, 2013 Washington Post article.
Unlike small pharmacies that custom-mix their medications, the compounding pharmacies make their custom-mixed products in sizable quantities and often ship them across state lines. These compounding pharmacies are functioning like manufacturers in that they mix large batches of medications without prescription forms for any specific patient.
The FDA now is starting to take a closer look at the laboratories that test these products, in particular citing them for failing to ask the compounding pharmacies for batch size information which is supposed to be used to calculate how much product should be tested. Without this basic information, the drug testing labs do not know how large a sample to test. Without that data, scientific lab results cannot be obtained.
Forensic Labs-Hair Samples
A December 23, 2012 article in the Washington Post discloses dramatic flaws not only in the use of hair samples in criminal cases but what appear to be outright misrepresentations by forensic scientists as to the reliability of hair samples. Hair samples are frequently a component of proof of a defendant’s culpability in criminal cases. If hair samples are found at a crime scene then the prosecution is allowed to obtain a hair sample from the defendant in order to determine if they match. If they match, then that testimony is presented at trial to purportedly prove that the defendant was in fact at the crime scene and is therefore in fact the guilty culprit.
What has not been disclosed over the last many years is that hair samples are not unique under a microscopic examination. For instance, your hair sample may be identical to my hair sample under microscopic examination.
With the advent of DNA analysis, hair samples can be determined to be unique because DNA is unique. Hair samples however by themselves based upon visual examination under a microscope are not unique.
The FBI is the ultimate culprit in this hoax in that it is the FBI that taught state and local forensic examiners how to analyze hair samples under a microscope and what they could then testify to. What most of them were taught to testify to is that based upon their examinations of many hair samples over the years they had never found any that matched other than when hair samples from the crime scene were being compared with hair samples of the accused defendant. Although that testimony may have been correct, the testimony was misleading because it was the practice of these forensic examiners not to compare hair samples from a crime scene with anyone other than defendants charged in that case.
As a result of this Washington Post disclosure the FBI has now undertaken a review of their laboratory hair samples prior to the year 2000. What is not being addressed at this point is all the laboratory examinations being undertaken by state and local laboratories who were taught by the FBI to employ these tactics.
What is unknown is how often the hairs of different people may match. At this point, there appears to be no scientific way to know the answer to that question. Unfortunately, rather than admitting that lack of knowledge, forensic examiners were taught to gloss over that issue and to simply testify as to the match between the hair sample at the crime scene and the hair sample taken from the accused defendant. This testimony obviously is powerful in a criminal case because it would seemingly indicate the defendant was at the crime scene and is therefore guilty. What is even more perplexing is that over the many years of the usage of this type of testimony there was no concerted effort by criminal defense counsel to challenge the testimony based upon the lack of uniqueness of hair samples.
Although visual analysis can distinguish animal hair from human hair and can further distinguish hair by race and body part and further can distinguish dyed from non-dyed hair and can in certain instances exclude certain people as a match, it cannot declare with any degree of certainty an absolute match.
In 1995 a federal judge in Oklahoma did exclude evidence of hair examination as being junk science because of the inability to explain coincidental matches.
In part as a result of that decision and the advent of DNA testing visual examination of hair sample became less important.
What is unfortunate about this expose is that not only did the FBI apparently intentionally misrepresent things but the criminal defense bar failed to uncover that misleading testimony.
Forensic Labs-DNA Testing
DNA testing has been much in the news over the last many years. Laboratories who conduct DNA testing do, on occasion, make mistakes.
In a 2011 decision from the Oklahoma Supreme Court in Berman v. Labortory Corp. of America, 268 P.3d 68, the Oklahoma Supreme Court indicated that LabCorp., in that instance, did owe a duty of care to the potential beneficiary of that DNA testing.
In this particular case, LabCorp. tested a blood sample twice of a putative father and reported on both occasions incorrectly, that this individual was not the child’s father. As a result of that, the mother was denied child support.
The issue in the case was whether or not LabCorp owed the mother a duty of care as a parent seeking to prove paternity.
The Oklahoma Supreme Court in that case held that the mother was, in fact, owed such a duty of care by LabCorp and LabCorp’s failure to comply with that duty of care gave the mother a basis for making a claim against LabCorp with her damages being the loss of child support.