USING CORRECTION FILES, AUDIT REPORTS, AND PROFICIENCY TESTS. Jennifer Friedman Office of the Los Angeles County Public Defender 213-974-2922 jfriedma@co.la.ca.us Dayton August 22, 2004

TOPICS TO BE DISCUSSED What are correction files, audit reports and proficiency tests? How do we obtain them? Once we obtain them, what do we do with them?

Correction Files

Alternative Names Anomalous Result Logs Error Logs Contamination Logs Logs of Unexpected Results Variance Reports Corrective Action Files Report of Quality Problems Quality Control Discrepancies Instances of Contamination Control Discrepancy Logs

Quality Assurance Standards for Forensic DNA Testing Laboratories “The laboratory shall establish and follow procedures for corrective action whenever proficiency testing discrepancies and/or case work errors are detected.” www.fbi.gov/programs/lab

Corrective Action Documentation Standard 14.1.1- “The laboratory shall maintain documentation for the corrective action. Such documentation shall be retained in accordance with applicable federal or state law.”

Example #1 Description of Problem: Analyst’s profile observed in profiler plus sample of subject reference. Change in Procedure: Better care must be taken in working with samples. When working with samples, masks and/or bio-safety cabinet must be used.

Example #2 Description of Problem: Apparent amount of reference FID-11 contamination in referenceFID-12. Samples was re-amplified and contamination was still present. Re-extracted reference samples. No contamination present. Change in Procedure: Contamination must have occurred at extraction or slot blot. Analyst will make sure to use new pipette with every sample.

Audit Reports American Society of Crime Lab Directors- Laboratory Assurance Board (ASCLD-LAB) FBI DNA Quality Assurance Audit – External Audit Internal Audits

ASCLD-LAB Audit Management and Operation Personnel Standards Physical Plant Standards

ASCLD-LAB Grading System Essential Important Desirable A laboratory must achieve not less than 100% of the essential, 75% of the important and 50% of the desirable criteria.

Examples of “Essential” Written procedures for handling evidence Written or electronic chain of custody documentation Evidence protected from loss, cross transfer, contamination. Secure over night and long term storage Comprehensive quality assurance manual Annual internal audit with documentation Routine checks of reliability of reagents

Examples of “Important” Instruments/equipment in proper working order Adequate work space Proper ventilation Supervisors review lab activities and personnel Instruments/ equipment adequate for the procedures used Internal blind proficiency testing Adequate space for instrumentation

Examples of “Desirable” Sufficient space for storage of supplies General cleanliness and “good housekeeping” Lab staff understand and support objectives Written procedures for control of supplies and equipment Procedures for inventory of supplies and equipment Constructive discussion between supervisors and subordinates

Preliminary Audit Report “Areas for trace, serology and DNA are totally inadequate….Laboratories in which useable space falls below adequate levels may experience…..an increased risk of mishandled or contaminated evidence.”

Final Audit Report “No change, if anything, the room is even more crowded than previously…” Improvement- “The post PCR room is now dedicated to this purpose. The laundry washer and dryer have been relocated.”

Proficiency Tests Internal open Internal blind External open External blind

Observations Deviating from rfu cutoff Changing calls after “second read” Notes indicating that 2 test tubes were both labeled “item #1” Deviation from SOP Fabric had stain on both sides, “called Heather to find out if they were trying to trick him” Mistakes in reporting the results Neg/Pos control problems

How Do We Obtain These Documents?

Case Authority Brady v. Maryland, (1963) 373 U.S. 83 Kyles v. Whitley, (1995) 514 U.S. 419 United States v. Bagley, (1985) 473 U.S. 667 The prosecution must disclose to the defense any evidence that is both favorable to the defendant and material either to guilt or to punishment. Evidence that is favorable to the defendant encompasses impeachment evidence as well as exculpatory evidence .

Case Authority-Proficiency Tests State v. Proctor, (S.C.App.2001), 559 S.E.2d 318 overruled on other grounds. “We conclude the trial court erred in denying Proctor’s motion to have proficiency test records of the DNA expert disclosed.” Courts and defense are not required to accept self-serving assertions. A DNA expert like all other experts is subject to “scrutiny and query in regard to qualifications and competency.”

Proficiency Tests Continued Keen v. Commonwealth, (1997) 24 Va. App. 795, 485 S.E.2d 659 D entitled not only to results of particular analyst but also to collaborative testing id number for lab in order to determine whether anyone in the lab had failed a proficiency test. Note this was the Virginia State crime lab.

Case Authority- Error Logs and Audit Reports United States v. Cedano-Arellano, (2003) 332 F.3d 586 Error to deny “a broad range of materials” including handler’s log, all training records and score sheets, certification records, training standards and manuals.

Character Trait Evidence In some jurisdictions, evidence in the form of opinion, reputation or specific instances of conduct may be admissible to show that an individual was acting in conformity with the trait or conduct. Habit and custom evidence may also be admissible to prove an individual acted in conformity with his habit or custom.

State Supreme Court Rules Illinois Supreme Court Rule 417 requires disclosure of all relevant materials pertaining to DNA including, “all reports, memoranda, notes, phone logs, contamination records, and data related to the testing performed in the case.”

State and Federal Freedom of Information Act Requests

Privilege Official information. Acquired in confidence. Public interest in not disclosing outweighs disclosure.

Public Interest Release of crime lab’s audit reports to the public defender, who will use the report to attempt to exploit any deficiency the lab may have made, may have a chilling effect on the candor and thoroughness of the participants, and the lab’s corresponding ability to maintain its high level of accuracy and continued improvement in the future.”

But…….. As Barry Fisher, Director of the Sheriff’s Scientific Services Bureau wrote in the prologue to his book Techniques of Crime Scene Investigation, "A better‑informed defense bar will also raise questions about the quality of forensic science laboratories and their forensic practitioners. One way to evaluate a laboratory’s quality is to inquire if it is accredited....[I]t is only a matter of time before accreditation will be a defacto requirement for evidence admissibility." Barry A.J. Fisher, Techniques of Crime Scene Investigation, CRC Press 7th Ed., (2004). Mr. Fisher also states, "[l]aboratory records must be open for reasonable access when legitimate requests are made by officers of the court." Id. at 19.

Additional Sources www.collaborativetesting.com www.chron.com/cs/CDA/ssistory.mpl/topstory/2470016 Media taking the lead in publishing contents of audit reports. www.darwin.bio.uci.edu/~mueller/ Information regarding errors in proficiency tests. www.scientific.org

What Do We Do With Them Once We Have Them?

Pretrial Daubert/Frye Audit reports may demonstrate that a laboratory has failed to adhere to generally accepted standards. Proficiency tests may demonstrate that a particular analyst fails to follow generally accepted procedures. Corrective action files, audit reports and proficiency tests may also demonstrate a failure to adhere to procedures set out in a standard operating procedures manual. See United States v. Shea, (1997 E. District New Hampshire) 957 F. Supp. 331, 340 n.27

Trial: Case Law Supporting of Admissibility of Audit Reports Error to preclude cross-examination of analyst regarding protocol (required by ASCLD/FBI audits). Relevant to weight and credibility of the evidence. “Science is often accepted in our society as synonymous with truth.” State v.Lehr, (Az. 2002) 38 P.3d 1172, 1180-1181

Proficiency Test Results and Underlying Data are Relevant to Dispel the “Myth” of the Zero Error Rate.

Case Law Supporting Admissibility of Proficiency Tests Failed proficiency tests and/or errors or deviations from protocols on such tests are arguably relevant to lab error rates. DNA test too flawed to be admitted where jury was denied the opportunity to hear testimony regarding an attempt to influence a defense expert, disagreement between analyst and supervisor regarding interpretation and inadequate documentation. Murray v. State, (Fla. 2002) 838 So.2d 1073, 1081

Case Law Supporting Admissibility Corrective Action Information It was error to preclude the defense from cross-examining the expert concerning incidents of contamination within the lab. “As a general matter, when DNA evidence is admitted against an accused in a criminal trial, questions on cross-examination regarding how that specific DNA evidence was obtained, and the laboratory conditions under which the DNA tests in that case were conducted, should be allowed. Williams v. State, (Md.1996), 679 A.2d 1106 overruled on other grounds.

Concluding Remarks Audit reports, corrective action files and proficiency tests provide a wealth of information about a laboratory and the analysts who work in the lab. This information is essential to the effective cross-examination of the witnesses who testify at admissibility hearings and at trial.

THE END.