Office of the Inspector General Department of Justice

USDOJ/OIG Special Report

The FBI Laboratory One Year Later:
A Follow-Up to the Inspector General's April 1997 Report on FBI Laboratory
Practices and Alleged Misconduct in Explosives-Related
and Other Cases  (June, 1998)

Introduction

The Department of Justice Office of the Inspector General (OIG) issued a 517-page report April 15, 1997, examining allegations of wrongdoing and improper practices within certain sections of the Federal Bureau of Investigation (FBI) Laboratory (1997 OIG Report).⁽¹⁾ The allegations implicated fundamental aspects of law enforcement, including the reliability of the procedures employed by the FBI Laboratory to analyze evidence, the integrity of the persons engaging in that analysis, and the trustworthiness of the testimony by FBI Laboratory examiners. The OIG investigation spanned more than 18 months and addressed a large number of allegations, most of which were not substantiated; however, some important ones were.

Our findings primarily concerned three units of the FBI Laboratory - the Explosives Unit, the Materials Analysis Unit, and the Chemistry-Toxicology Unit, all of which were in the Scientific Analysis Section, one of five sections of the Laboratory. To enhance the quality of the Laboratory's forensic work, the 1997 OIG Report contained 40 recommendations in the following 12 areas: (1) accreditation; (2) restructuring the Explosives Unit; (3) the roles of Laboratory examiners and resolutions of disputes; (4) report preparation; (5) peer review; (6) case documentation; (7) record retention; (8) examiner training and qualification; (9) examiner testimony; (10) protocols; (11) evidence handling; and (12) the role of management.

In its response to a draft of the 1997 OIG Report, the FBI accepted full responsibility for the failings we identified within the Laboratory. The FBI's response concurred with all of the OIG's recommendations and stated that the Laboratory had implemented or was taking steps to implement them. Beginning in August 1997, the FBI has provided the OIG with monthly status reports on the Laboratory's progress toward implementing the recommendations identified in the 1997 OIG Report. The reports have identified each recommendation, stated how the FBI intended to implement the recommendation, and provided the status of the implementation.

As part of our general statutory oversight responsibilities, we conducted a "one-year-later" follow-up review of the Laboratory to assess the FBI's progress in implementing the OIG recommendations. Because of their work in conducting the OIG's 1997 review of the FBI Laboratory, three of the four prosecutors, three of the five forensic scientists, and one of the OIG special agents who conducted the original investigation were responsible for conducting this follow-up review.

We examined Laboratory policy statements, manuals, and other documents as part of this follow-up review. During the week of March 30, 1998, we interviewed 18 Laboratory examiners and supervisors, including the FBI Assistant Director in charge of the Laboratory (Laboratory Director). Our follow-up review was necessarily limited in scope. It did not attempt to duplicate the in-depth inspection that the American Society of Crime Lab Directors/Laboratory Accreditation Board (ASCLD/LAB) is performing as part of its accreditation process.

Although we identified some areas of specific concern, in general we found that the FBI has done a sound and responsible job of implementing the OIG recommendations. Because of the ongoing nature of many of the recommendations, we believe that periodic internal and external reviews should be conducted to ensure that the policies, practices, and protocols adopted by the FBI are followed in practice.

On May 20, 1998, we submitted a preliminary draft of this follow-up report to the FBI. In that draft, we identified areas of concern relating to restructuring the Explosives Unit (EU) (Section II, below), preventing contamination in the EU (Section II), drafting reports (Section IV), training (Section VIII), and monitoring examiner testimony (Section IX). In a May 26, 1998, response to the preliminary draft, the FBI stated that steps have been or would be taken to solve the problems we identified. Our concerns and the FBI's response to the 12 areas of OIG recommendations are discussed in the applicable sections below.

I. ASCLD/LAB Accreditation and External Review

Consistent with the OIG's recommendations, the FBI has pursued accreditation from ASCLD/LAB. The FBI submitted an application to ASCLD/LAB in December 1997, and ASCLD/LAB personnel began their on-site inspection of the Laboratory on May 27, 1998. We commend the FBI for its intention to develop ASCLD-like protocols and policies and to seek alternative forms of external accreditation for Laboratory disciplines that are not yet accredited by ASCLD/LAB. The FBI has also made arrangements for mutual cooperation, technical exchanges, or external audits with state criminal forensic laboratories in Minnesota, New York, Texas, and Virginia.

II. Restructuring the Explosives Unit

The 1997 OIG Report contains several recommendations for restructuring the EU. The recommendations relate to three areas: (A) the mission of the EU and the qualifications of its examiners; (B) the EU examiner's role at crime scenes; and (C) the prevention of contamination. The FBI has taken substantial steps to implement most of the recommendations related to the mission of the EU and the qualifications of its examiners, and has implemented the recommendations in the other two areas.

A. Mission and Examiner Qualifications

The 1997 OIG Report states:

Within the Laboratory, the EU's primary mission should be the forensic examination of evidence by qualified scientists. Examiners in the EU should have scientific backgrounds in pertinent disciplines such as chemistry, metallurgy, or engineering, as well as technical training in the assembly, deactivation, and use of explosive devices. The EU should retain its important function of reconstructing bombs and otherwise analyzing the mechanical aspects of explosive devices. As appropriately qualified examiners are brought into the EU, we recommend that the Laboratory transfer the chemical analysis of explosives from the CTU [Chemistry-Toxicology Unit] to the EU. . . . The EU unit chief and EU examiners should have scientific backgrounds in addition to experience or training in bomb reconstruction. [Report at 485-86, 488.]

1. Unit Chief. After receipt of a preliminary draft of the 1997 OIG Report, the FBI merged the EU with the greater part of the Materials Analysis Unit (MAU) to form a new unit called the Materials and Devices Unit (MDU). The unit chief of the MDU is a Ph. D. forensic chemist. The unit is divided into several groups by subject matter (e.g., Elemental Analysis Group, Metallurgy Operations Group). One of the groups corresponds to the former EU - the Explosives Operations Group (EOG).

The MDU unit chief is currently receiving training in the mechanics of explosive devices. When he completes this training, the FBI will have fully implemented the OIG recommendation that the "EU unit chief" have a scientific background and experience or training in bomb reconstruction.

2. Examiners. Historically, EU examiners were not scientists but rather were special-agent bomb technicians. The OIG recommended that EU examiners be "qualified scientists." This recommendation has not yet been fully implemented, although the FBI appears to be committed to its implementation.

The EOG is currently staffed both by examiners who have scientific backgrounds and by examiners who lack scientific backgrounds. The background of one of the examiners is in "soil science," which may not be the type of "pertinent discipline" our recommendations envisioned.

The MDU unit chief told us that he is currently attempting to staff the EOG with special-agent bomb technicians who have scientific backgrounds. His justification for seeking only special agents is unpersuasive.⁽²⁾ The Laboratory Director, on the other hand, told us that it is not a requirement that EOG examiners be special agents - a viewpoint that had not been communicated to either the MDU unit chief or the chief of the Scientific Analysis Section (SAS) at the time of our interviews. Limiting EOG examiners to special agents unnecessarily restricts the pool of candidates and impedes implementation of the OIG recommendation.⁽³⁾ Until the FBI abandons the special-agent bomb-technician model for EOG examiners in favor of qualified scientists, the FBI will have difficulty fully implementing the OIG recommendation.

We disagree with the MDU unit chief's opinion that it is impractical to staff the EOG by hiring scientists without bomb-technician experience and then giving them training in the mechanics of explosives devices. We note, moreover, that the MDU unit chief's position on this issue is inconsistent with his own situation. He is a forensic chemist without bomb-technician experience and is at present receiving bomb-reconstruction training. Just as he can become qualified to be unit chief of the MDU/EOG with this training, a scientist who lacks bomb-technician experience but who receives appropriate training in bomb reconstruction could become qualified to be an EOG examiner.

After our interviews the week of March 30, 1998, and in response to the preliminary draft of this follow-up report, the Laboratory Director wrote us as follows:

[T]he FBI Laboratory is committed to hiring the most qualified scientists, regardless of whether they are Special Agents or professional support personnel [non-agent Laboratory examiners]. There is no confusion on this point, not by the chief of the Scientific Analysis Section and, now, not by the MDU Unit Chief. . . . [G]iven the exigency of time, the only practical way to quickly replenish EOG's staff level was to draw from the FBI's pool of Special Agents who possess the requisite academic background and bomb-related experience. As a result, today only Special Agents serve as explosives examiners in EOG. In the future, however, as vacancies occur in EOG, the FBI Laboratory will seek the most qualified candidates having pertinent scientific degrees combined with experience in bombing matters. This will result in a blend of Special Agents and professional support employees working side by side in EOG in the coming years.

Based on the above comments, we believe that the Laboratory is committed to the full implementation of the recommendation that the EOG be staffed by qualified scientists.

3. Proposed Reorganization. The FBI has rejected our long-term recommendation of transferring the chemical analysis of explosives from the CTU (now the Chemistry Unit) to the EU (now the MDU/EOG).⁽⁴⁾ As discussed, we think it is practical to staff the EOG with scientists without bomb-technician experience and then give them bomb-reconstruction training. If the scientist is a forensic chemist (like the MDU unit chief), he could then analyze and render an opinion on the entire explosive device - both the chemical properties of the explosive and the mechanical aspects of the device. This integrated approach is used in other forensic laboratories, and we regard it as a desirable goal. The FBI cites the size of the Laboratory and the variety of its cases to support its rejection of the integrated approach. We think, however, that the size of the Laboratory is a point in favor of our recommendation, because the number of explosives cases handled by the Laboratory would justify the assignment of some chemists to work primarily on explosives cases.

In response to the preliminary draft of this follow-up report, the FBI reiterated its view that "the volume of cases requiring explosives residue analysis cannot justify locating a qualified chemist full-time in MDU." We regard the FBI's present structure, in which device and chemical analyses are in different units, as acceptable, even though it departs from the OIG's recommendation. Nevertheless, we suggest that in the future the FBI reconsider its position on the integrated approach.

B. Role at Crime Scenes

The FBI has implemented the OIG recommendation that EU (now EOG) examiners advise and assist at a crime scene, but not manage the crime scene. We noted in our interviews, however, that the MDU unit chief and some EOG examiners still do not agree with this recommendation.

C. Contamination

The FBI has implemented the OIG recommendation to modify the procedures in the EU (now EOG) to strengthen protections against contamination in the receipt and handling of evidence. During our interviews, however, we noted some confusion concerning the periodic testing of the EOG area for contamination. The MDU unit chief thought the Chemistry Unit (CU) was testing the EOG area for contamination, but was unaware of any reports of the testing. The CU unit chief told us he was not testing the EOG area for contamination. We were assured by the Laboratory Director that this problem would be solved and that the EOG area would be tested periodically for contamination. We note that it is important for the MDU to take responsibility for the testing of its own area, whether the testing is performed by the MDU, the CU, or some other unit, and that the MDU should make sure that it receives reports of the testing.

In response to the preliminary draft of this follow-up report, the Laboratory Director informed us that, after our interviews the week of March 30, 1998, the FBI significantly strengthened its procedures to minimize the risk of contamination in the MDU. These new procedures include weekly testing of the MDU area for trace amounts of explosives.

III. Principal and Auxiliary Examiners

Consistent with the OIG's recommendations, the FBI has adopted policies to (A) identify a coordinating examiner for each case in place of the former distinction between "Principal" and "Auxiliary" examiners; (B) provide guidelines for the respective roles of the coordinating examiner and other examiners; and (C) provide that disagreements about forensic methods or interpretation be resolved based on pertinent scientific knowledge and that dispute resolution by supervisors be communicated to the examiners involved and reflected in final reports.

IV. Report Preparation

The OIG made several recommendations concerning preparation of Laboratory reports, including: (A) each examiner should prepare and sign a separate report; (B) any summary report should be circulated to the examiners involved before the report is released; (C) reports should be clear, concise, objective, and understandable and should fully disclose the involvement of the issuing examiner in the case and all pertinent information and findings; and (D) examiners' conclusions should be limited to those that logically follow from the underlying data and analytical results. Elaborating on (D), the OIG Report noted that an examiner should not draw conclusions that overstate the significance of the technical or scientific examinations; nor should an examiner base forensic conclusions on unstated assumptions or information that is collateral to the examinations performed. The FBI has adopted policies to implement each of these recommendations. Certain of those policies merit additional comment.

In our follow-up review, we noted some apparent confusion among Laboratory examiners concerning the meaning of the term "summary report." We also noted that, consistent with the current Quality Assurance Manual for the MDU/EOG, some MDU/EOG reports contained confusing "boilerplate" language indicating that an EOG examiner was presenting a "synopsis" or "synthesis" of other examiners' reports, although, in the cases we examined, there was no synopsis or synthesis.

In the preliminary draft of this follow-up report, we recommended that the Laboratory clarify its policies on summary reports to state that if a report summarizes, describes, or otherwise characterizes the results of reports or examinations by other examiners, then the report should be treated as a summary report and a draft should be circulated to the other examiners to solicit their views before the report is released. Given the Laboratory's policy that each examiner who analyzes evidence will prepare and sign a separate report, it should be a relatively rare occasion when a summary report is necessary. If a report simply refers the reader to another report, it is not necessary to treat the first report as a summary report.

In response to the preliminary draft of this follow-up report, the FBI advised that Laboratory management had reiterated to the MDU/EOG in May 1998 that its examiners shall not prepare summary reports unless directed to do so. The FBI also stated that in the next version of the Quality Manual the procedure concerning summary reports will be revised to clarify that approval by the Laboratory Director or his designee will be required for summary reports and that such reports will only be prepared at the request of the prosecutor in the case and must be justified on the merits. These steps will help address our concerns, but we still believe it would be beneficial for the Laboratory to clarify that if a report restates the results of another examiner's work, it should be treated as a summary report and the examiner who performed the work should review the report before it is released.

The OIG's recommendations concerning the substantive content of reports are summarized as items (C) and (D) in the first paragraph of this section and are discussed at pages 494-495 and 511 of the OIG report. In the preliminary draft of this follow-up report, we noted that we understood that the FBI had sought to reflect the spirit of the OIG recommendations by provisions in the current Laboratory Quality Assurance Manual that require peer review of reports by another qualified examiner. These provisions, however, do not include the language of the OIG recommendations and are directed to the examiner conducting the peer review rather than the examiner who prepares the report.

The Laboratory's Quality Assurance Manual now includes, as part of the policy statements in section 18, the OIG's recommendations concerning courtroom testimony by examiners. These recommendations to some extent parallel those concerning laboratory reports. Accordingly, the preliminary draft of this follow-up report suggested that the FBI also include the OIG's substantive recommendations concerning report preparation as part of the policy statements in the Quality Assurance Manual.

In response to the preliminary draft of this follow-up report, the FBI advised that the next version of the Quality Assurance Manual will include a subsection entitled "Report Preparation" that includes the specific points noted by the OIG to serve as guidelines for examiners preparing reports.

V. Adequate Peer Review

The FBI has adopted policies consistent with the OIG's recommendation that each report should be substantively reviewed by another qualified examiner to assure that its conclusions are reasonable and scientifically based. Our follow-up review of a limited number of reports and interviews with examiners in the MDU and the CU suggest that these policies are being followed and have been received with enthusiasm by examiners in those units.

VI. Case Documentation

The FBI has adopted policies consistent with the OIG's recommendations concerning documentation of case files. The OIG also recommended that the Laboratory conduct retrospective case file reviews or "audits" to assure that reports are supported by appropriate analysis and documentation. We understand that the Laboratory in 1997 requested but did not receive funds to establish positions within the Quality Assurance Unit (QAU) to perform this audit function. To fully implement the OIG's recommendation, the Laboratory should identify personnel (including, on a rotating basis, examiners from various units) who could perform retrospective audits of case files.

In response to the preliminary draft of this follow-up report, the FBI advised that following ASCLD/LAB accreditation, it will redirect staff within the QAU to initiate a program to conduct retrospective case file reviews or audits.

VII. Record Retention

In response to the OIG's recommendation, the FBI has relocated the Laboratory file room and adopted new policies concerning the maintenance and custody of Laboratory examination documents and files. Our conversations with a limited number of examiners and personnel working on record retention suggest that the current procedures are a marked improvement over past practices. The FBI appears to be implementing the OIG's recommendation. Of course, file management and retrieval practices will continue to evolve over time, particularly in light of developing technology for electronic data storage and access. We encourage the FBI to continue evaluating such technology for possible application in the Laboratory.

VIII. Examiner Training and Qualification

The Laboratory has adopted policies and practices consistent with the OIG's recommendations concerning examiner training and qualification. Those policies and practices include: (A) the adoption of a two-week uniform core curriculum for examiner training; (B) the continuing use of moot court exercises to prepare and qualify examiners in substantive disciplines and courtroom presentation; (C) the participation of examiners from other laboratories in moot court exercises; (D) a training curriculum that includes guidelines regarding quality control, recognized standards of good laboratory practice, open communications, and conflict resolution; and (E) training curricula for specific units with required unit chief approval.

It does not appear that the Laboratory has implemented our recommendation that previously-qualified examiners periodically participate in moot court exercises to sharpen their skills and provide training for trainees and less experienced examiners. We encourage the Laboratory to consider including such exercises in its training curricula, especially in units where examiners are not called upon regularly to testify in court. In its response to the preliminary draft of this follow-up report, the FBI stated that "[c]urrent plans are to include this concept [moot-court exercises for previously-qualified examiners] in semi-annual training for examiners as facilities permit."

IX. Examiner Testimony

The Laboratory has adopted policies to implement the OIG's recommendations concerning examiner testimony. Those policies include: (A) courtroom testimony as part of the uniform training curriculum; and (B) specific written guidelines to ensure accurate, complete, and clear testimony by examiners in court. If adhered to, these guidelines should prevent problems we observed during our original investigation, such as the presentation of confusing or misstated conclusions by examiners in court appearances.

In the 1997 OIG Report, we also stated that unit chiefs (or other qualified examiners) should monitor testimony by examiners at least once each year through direct observation or transcript review. In response, the Laboratory initially adopted our recommendation without qualification. Recently, however, the Laboratory amended the policy to allow unit chiefs to monitor examiner testimony annually in any one of the following ways: (1) through an evaluation form to be completed by the judge, prosecutor, or defense counsel and returned to the unit chief; (2) through a video tape of the testimony; (3) through an audio tape of the testimony; (4) through direct observation; or (5) through a transcript review. The evaluation form rates the examiner based on demeanor and presentation, but not substantive performance. In practice, examiner testimony is now "monitored" primarily through use of the evaluation form.

We think the Laboratory's reliance on the evaluation form is insufficient, because it does not ensure substantive or technical monitoring of the examiner's testimony. Moreover, Laboratory examiners are likely to give the forms only to the prosecutor, who may unconsciously tend to evaluate the testimony based largely on the extent to which it has helped the case rather than its accuracy, clarity, or completeness. The Laboratory apparently amended the policy recommended by the OIG because of difficulties in obtaining trial transcripts through prosecutors and the time and expense associated with direct observation of testimony. To overcome these obstacles, we recommend that the Laboratory instruct examiners to personally request trial transcripts directly from court reporters and not to rely on prosecutors. We also recommend that the Laboratory consider asking qualified examiners from local laboratories to evaluate testimony by FBI examiners, in order to avoid excessive travel by unit chiefs for this purpose. We reiterate our recommendation that examiner testimony should be substantively monitored by direct observation or by transcript review. If it is not feasible to accomplish such monitoring annually, it should be done at least every two years.

In response to the preliminary draft of this follow-up report, the FBI stated that "[f]ollowing accreditation, the Laboratory intends to implement the policy recommended by the OIG for evaluating examiners' testimony, with the goal of direct observation for each examiner within a two-year period."

X. Protocols

Based on the documentation we observed, the Laboratory has adopted policies to implement the OIG's recommendations concerning the adoption of written protocols for scientific examinations. Through an effective program of peer and administrative review, the Laboratory should be able to ensure that authorized protocols are followed.

XI. Evidence Handling

Consistent with the OIG's recommendations, the Laboratory has continued to refine its procedures for evidence handling and has adopted more comprehensive written policies and procedures concerning evidence control. Additionally, the Laboratory has continued to develop its procedures for avoiding contamination and has provided some focused training on this topic. We also observed a heightened sensitivity to contamination issues among examiners with whom we spoke. We understand that the Laboratory has considered evidence handling and contamination issues in designing the new Laboratory facility at Quantico, Virginia.

XII. Role of Management

The Laboratory has adopted policies and practices consistent with the OIG's recommendations concerning the role of management. Specifically, (A) the Laboratory Director and other managers within the SAS, CU, MDU have scientific backgrounds; (B) management has affirmed that the Laboratory's primary function is to provide reliable and objective forensic results; (C) management has adopted measures to develop within the Laboratory a stronger attitude of cooperation and a commitment to objective inquiry; (D) the QAU has been located in proximity to the Laboratory's forensic work and the QAU chief reports directly to the Laboratory Director; (E) management has promoted interaction with other laboratories; and (F) management has adopted measures to ensure that concerns about quality and disagreements about methodology and interpretation are addressed promptly and professionally. We also note that the FBI has advised us that it contemplates new agreements with the Bureau of Alcohol, Tobacco and Firearms concerning the investigation of bombings and with the Department of Energy to facilitate cooperative exchanges with the national laboratories.

Conclusion

We have noted some specific areas of continuing concern and the FBI's commitment to correct them. However, on the whole we believe that the FBI has done a sound and responsible job of implementing the OIG recommendations. Because of the ongoing nature of many of the recommendations, periodic internal and external reviews should be conducted to assure that the policies, practices, and protocols adopted by the FBI are followed in practice.

Michael R. Bromwich

Inspector General

Date: June 4, 1998

Members of the Follow-up Review Team:

1. "The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosive-Related and Other Cases" (April 15, 1997).

2. One of the reasons given was that EOG examiners manage major crime scenes. But EOG examiners no longer perform this function. The other major reason given was that EOG examiners assist in the drafting and execution of search warrants. We believe, however, that a scientist who is not a special agent is capable of performing this function. We also disagree with the unit chief's assertion that it would be appropriate for a Laboratory examiner to assist in the execution of a warrant by personally using physical force to gain entry to a building. That aspect of the execution of a warrant should be performed by other FBI personnel.

3. We also note that employing special agents instead of scientists who are not special agents costs the FBI more money. Based on our interviews with Laboratory personnel, we understand that a scientist who is not a special agent begins as a GS 13, while a special agent begins at a higher pay grade corresponding to a GS 14 and receives an additional 25% in salary because he or she is a law-enforcement agent.

4. The recommendation, which seeks to put the mechanical analysis of devices and the chemical analysis of explosives in the same unit, could, of course, be implemented in other ways, such as by creating a new unit or transferring the EOG to the Chemistry Unit.

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