Forensic Fraud

Evaluating Law Enforcement and Forensic Science Cultures in the Context of Examiner Misconduct

Brent E. Turvey

• Publisher: Academic Press
• Year: 2013
• Print ISBN: 9780124080737
• eBook ISBN: 9780124080584
• Topic: Social Sciences
• Subtopic: Forensic Science
• Index: Social Sciences

Forensic Fraud is the culmination of 12 years of research by author Brent E. Turvey. A practicing forensic scientist since 1996, Turvey has rendered this first of its kind study into the widespread problem of forensic fraud in the United States. It defines the nature and scope of the problem, the cultural attitudes and beliefs of those involved, and establishes clear systemic contributors. Backed up by scrupulous research and hard data, community reforms are proposed and discussed in light of the recently published National Academy of Sciences report on forensic science.An adaptation of Dr. Turvey's doctoral dissertation, this volume relentlessly cites chapter and verse in support of its conclusions that law enforcement cultural and scientific values are incompatible, and that the problem of forensic fraud is systemic in nature. It begins with an overview of forensic fraud as a sub-type of occupational fraud, it explores the extent of fraud in both law enforcement and scientific employment settings, it establishes and then contrasts the core values of law enforcement and scientific cultures and then it provides a comprehensive review of the scientific literature regarding forensic fraud. The final chapters present data from Dr. Turvey's original research into more than 100 fraudulent examiners between 2000 and 2010, consideration of significant findings, and a review of proposed reforms to the forensic science community based on what was learned. It closes with a chapter on the numerous crime lab scandals, and closures that occurred between 2010 and 2012 – an update on the deteriorating state of the forensic science community in the United States subsequent to data collection efforts in the present research.Forensic Fraud is intended for use as a professional reference manual by those working in the criminal system who encounter the phenomenon and want to understand its context and origins. It is intended to help forensic scientist and their supervisors to recognize, manage and expel it; to provide policy makers with the necessary understaffing for acknowledging and mitigating it; and to provide agents of the courts with the knowledge, and confidence, to adjudicate it. It is also useful for those at the university level seeking a strong secondary text for courses on forensic science, law and evidence, or miscarriages of justice.- First of its kind overview of the cultural instigators of forensic fraud- First of its kind research into the nature and impact of forensic fraud, with data (2000-2010)- First of its kind typology of forensic fraud, for use in future case examination in research- Numerous profiles of forensic fraudsters- Review of major crime lab scandals between 2010 and 2012

Chapter 1

Introduction

“Where a proffered expert knows himself or herself to be a quack or otherwise to be offering false testimony, the situation is like that of any other witness who is perpetrating a fraud on the court. Such acts are illegal as well as unethical.”

Michael J. Saks (2001)

Professor of Law & Psychology

Sandra Day O’Connor College of Law

This textbook presents original research that examines and correlates the traits of fraudulent forensic examiners, their fraud-related activity, and their places of employment.¹ To ensure timeliness and provide for comparability, this research is limited in scope to those cases revealed in the United States from 2000 to 2010. It is a study that seeks to inform and add to our theoretical understanding of a specific yet influential strain of employee fraud in the criminal justice system. Based on the findings of this study, potential causal factors are identified and discussed. Subsequently, relevant fraud management strategies are proposed.

Background

The events that have accumulated over the course of this author’s career to confirm the need for this work, and to provide sufficient motivation for its completion, are numerous and ongoing. The earliest took place immediately after the completion of this author’s graduate studies in forensic science in 1995: a research paper that had been placed online was taken in its entirety and presented elsewhere under the name of another. Upon discovery and further investigation, it was learned that the person responsible, a forensic psychologist, was no stranger to fraud. Then the Chair of the Forensic Science program at National University in San Diego, California, it was learned that the plagiarist had purloined the research of others in at least one Canadian journal. He had also been accused of misrepresenting the nature of his relationship with the Orange County Coroner’s Office by means of printing up misleading business cards. Further still, his professional resume was full of incomplete and misleading information and affiliations. Ultimately, and subsequent to a complaint filed by this researcher, this individual was forced to resign his membership with the American Academy of Forensic Sciences, and contemporaneously ceased to be the Chair of the Forensic Science program at National University. That someone would do these things so openly, let alone a professional of apparent high standing in the forensic science community, and that nobody had complained about it in writing save a recently graduated student of forensic science, left an impression.

Over the past 17 years of forensic practice, this author has observed or learned of countless instances of unrepentant forensic fraud by practitioners from all over the United States, and around the world. A severe outcome, with proven fraudsters stripped of their employment, penalized by their respective professional organizations, and criminally charged is not at all typical. Often fraud is minimized, ignored, or in extreme cases simply denied by those in the forensic science community. For example, Budowle (2007), speaking for the FBI crime laboratory, insists that “most people do good jobs,” that forensic fraud is not a significant issue, and that any problems are “most often human error”; Collins and Jarvis (2007), speaking for an organization formed by those associated with the American Society of Crime Lab Directors Laboratory Accreditation Board (ASCLD-LAB), similarly assert that “Forensic scientists are human beings. As such they will sometimes make mistakes and, in some very rare instances, push the boundaries of ethical behavior”; and, in response to multiple and ongoing scandals involving examiner fraud since 2005 at the U.S. Army Criminal Investigation Laboratory (USACIL), the Army’s Criminal Investigation Command, which oversees the lab, has conceded only that “As with all crime labs across the county, human error does occur from time to time” (Taylor and Doyle)—in essence ignoring the issue of fraud altogether.² Many leaders in the forensic science community, it seems, are content to explain fraudulent examiners away, or deny their existence, despite continuous and sometimes overwhelming evidence of the problem. This sets the tone for the attitudes and arguments that must necessarily follow from their subordinates, as will be discussed in later chapters.

Different from that of many forensic science stakeholders, this author’s perspective has been enhanced by at least the following major events in the forensic science community over the past ten years:

1. The ongoing and in some cases repeated instances of major crime lab scandal, to include multiple instances of fraud and error, over the past 15 years (see general discussions in Cooley, 2004, 2007a, and 2007b; DiFonzo, 2005; DiFonzo and Stern, 2007; Giannelli, 2010; and Thompson, 2009).³

2. The publication of the National Academy of Sciences Report on forensic science (aka the NAS Report; Edwards and Gotsonis, 2009). The NAS Report was a congressionally funded system-wide investigation and review of the forensic science disciplines and related forensic laboratory practice. It was initiated by the United States Congress owing to the publication of an ongoing series of critical legal reviews regarding the evident bias and lack of science in forensic practice; the ongoing occurrence of highly publicized forensic frauds, blunders, and forensic laboratory scandals across the United States; and the ever-increasing number of DNA exonerations sourced back to flawed or misleading forensic evidence documented by groups such as the Innocence Project (see http://www.innocenceproject.org; see also Garrett, 2008; and Garrett and Neufeld, 2009). The NAS Report confirmed the lack of scientific foundation for the majority of forensic science methods, and an inappropriate alignment between forensic scientists and their law enforcement employers. It also recognized the lack of empirical research into the nature and causes of forensic fraud and error.

3. The publication of Preventable Error: A Report on Prosecutorial Misconduct in California 1997–2009 by the Northern California Innocence Project (Ridolphi and Possley, 2010). This landmark study of the largest criminal justice system in the United States (California) found prosecutorial misconduct more common than previously thought, including that related to suppressing or misrepresenting physical evidence. It also found that when harmful misconduct does occur (p. 3) “those empowered to address the problem—California state and federal courts, prosecutors and the California State Bar—repeatedly fail to take meaningful action. Courts fail to report prosecutorial misconduct (despite having a statutory obligation to do so), prosecutors deny that it occurred, and the California State Bar almost never disciplines it.” This is clearly related to, and not surprisingly similar to, the problems faced in the forensic science community regarding forensic fraud.

These experiences and events, augmented by ongoing myriad professional encounters with fraudulent examiners as part of regular casework, have provided a durable source of motivation for this work.

Definitions of Key Terms

To contextualize this work, and facilitate continuity between this and any future or related projects, it is necessary to operationalize at least the following key terms in advance: scientific misconduct, forensic examiner/ forensic practitioner, forensic fraud, and perjury. Other pertinent terms will be defined as needed.

Scientific misconduct

According to the guidelines adopted by the United States Office of Research Integrity, scientific misconduct is defined by acts that include the fabrication of data, the falsification of results, and plagiarism. However, it has also been argued to include ghost authorship and the falsification of credentials (Krimsky, 2007). While the wrongfulness of falsifying scientific credentials and fabricating data is fairly straightforward, the longstanding practice of ghost authorship in the scientific community requires some explanation. As explained in Krimsky (2007; p. 450): “Ghost authorship occurs when the person whose name appears on the publication was not involved either in doing the research, framing the ideas behind the article, or in writing the article. Alternatively, it can occur when an individual who has made substantial contributions to the manuscript is not named as an author or whose contributions are not cited in the acknowledgments.” This practice is also referred to by some as “gift authorship” (Jones, 2003; p. 245). Essentially, it involves hiding who did the work by giving credit that has not actually been earned.

Forensic examiners

The terms forensic examiner and forensic practitioner will be used throughout this text, and generally refer to any professional who examines and interprets facts, evidence, or data with the expectation of courtroom testimony. As explained in Turvey (2011; p. xxii):

Criminal investigators are tasked with serving the criminal justice system by establishing the objective facts and evidence of a given case. Forensic examiners are tasked with analyzing the evidence and interpreting the facts objectively.

Forensic examiners are defined by the fact that they anticipate courtroom testimony. As explained in Thornton and Peterson (2007; p. 3):

The single feature that distinguishes forensic scientists from any other scientist is the certain expectation that they will appear in court and testify to their findings and offer an opinion as to the significance of those findings. The forensic scientist will testify not only to what things are, but to what things mean.

This provides that forensic scientists do not just test or examine evidence and then record the results; they are meant to explore, understand, and explain its significance to an attorney, judge, or jury. The defining quality of forensic examiners is the possibility that they will be called upon to present their findings, under penalty of perjury, in a court of law. Subsequently, they will be asked to explain to the court what those findings mean and how they came to them. This can be as straightforward as recording information about drug identifications, weights, and cash amounts; or it can be as complex as reconstructing a crime scene and determining cause and manner of death.

Forensic examiners, therefore, exist across a broad spectrum of professions. This would include criminalists and other forensic scientists such as forensic pathologists, forensic toxicologists, firearm and tool mark examiners, forensic odontologists, crime reconstructionists, criminal profilers, forensic criminologists, forensic psychologists, and even forensic victimologists. It would also include an array of law enforcement officers processing evidence or testifying as experts in a variety of specialty areas, such as gang culture, sexual assault, drug dealer profiles, drug lab profiles, and case linkage analysis. The scope of the present research is limited, however, to forensic examiners that work directly with physical evidence. The reason for this will be explained later.

Forensic fraud

Forensic fraud occurs when forensic examiners provide sworn testimony, opinions, or documents (e.g., affidavits, reports, or professional resumes) bound for court that contain deceptive or misleading information, findings, opinions, or conclusions, deliberately offered in order to secure an unfair or unlawful gain. As defined in the present research, forensic fraud is necessarily that which is committed by a forensic examiner. It is distinct from deceptive or misleading acts that may be committed by others, such as fact witnesses, ...

Table of contents

• Cover image
• Title page
• Table of Contents
• Copyright
• Dedication
• Acknowledgments
• Chapter 1. Introduction
• Chapter 2. Occupational Fraud
• Chapter 3. Forensic Science: A Primer
• Chapter 4. Fraud in Law Enforcement Culture
• Chapter 5. Fraud and Scientific Culture
• Chapter 6. Contrasting Scientific Integrity with Law Enforcement Culture
• Chapter 7. Forensic Fraud: Prior Research
• Chapter 8. Forensic Fraud, 2000–2010: Data and Frequency
• Chapter 9. Multivariate Analysis of Forensic Fraud, 2000–2010
• Chapter 10. Conclusions and Recommendations
• Chapter 11. Crime Labs in Crisis, 2011–2012: Update and Discussion
• References
• Index