I. REPLIES TO GENERAL RESPONSE MADE BY FBI IN THE EXECUTIVE SUMMARY OF ITS RESPONSE
FBI Response
The FBI states that by commenting about how particular cases illustrate ways in which Laboratory practices could be improved, the OIG gives the incorrect impression that various issues have not been considered by the FBI. The FBI recommends that discussions about the need to improve Laboratory practices that appear other than in Parts Six and Seven of the OIG Report should be omitted. FBI Response at 5-6.
OIG Reply
The Executive Summary and Part Six of the final Report acknowledge that the FBI has indicated that it accepts virtually all of the recommendations contained in Part Six and has taken, or is taking, steps to implement them. Part Two of the Report notes that practices in the Laboratory have evolved over time. The OIG determined not to remove the discussions about the need to improve the Laboratory that appear in parts of the Report other than Parts Six and Seven because it is useful to present these conclusions not only in terms of general recommendations but also in the context of the matters from which they are drawn.
FBI Response
The FBI contends that the OIG, in finding that certain examiners testified outside the scope of their expertise, fails to appreciate the role of the expert in the criminal process and that the OIG’s discussion improperly suggests that because the FBI has not had codified standards for expert testimony, "requiring accurate testimony would be new to the FBI." FBI Response at 7.
OIG Reply
The general observation that the OIG does not appreciate the role of the expert in the criminal process is unfounded. The Report notes in various places that experts may testify notonly based on scientific knowledge, but also based on technical knowledge or experience. Where the OIG criticizes individuals for straying beyond their expertise, it is usually because they either proffered an opinion that they suggested had a scientific basis when it did not, or they ventured into an area in which they were not qualified by education, training, or experience. In the final Report, the OIG also notes in Part Six that the importance of presenting opinions in a clear, objective manner within the bounds of one’s expertise, and other issues noted in our recommendations, may have been addressed in the past as part of the moot courts or other training of FBI examiners. Yet, despite whatever guidance the FBI previously gave its examiners concerning testimony, some examiners identified in the Report did not testify accurately, objectively, or within their expertise.
For reasons noted in the Report, we think it is important that the Laboratory adopt a common core curriculum for new examiners to address the identified issues, as well as written guidelines for examiner testimony. We also note that the FBI, in response to the general recommendations in Part Six of the OIG Report, states that it concurs in the OIG recommendations concerning examiner training and testimony.
FBI Response
The FBI objects to suggestions that one or more examiners may have biased their conclusions to favor the prosecution, citing the Rudolph, Oklahoma City, and Avianca matters. The FBI observes that to charge that the Laboratory acted with other than "complete objectivity" is an "extremely serious allegation, and one that lacks support." FBI Response at 8.
OIG Reply
We address the FBI's complaint in the specific sections that include similar type language, such as the Rudolph matter, the Oklahoma City bombing, and the Avianca bombing.
FBI Response
The FBI requests that we delete expressions of our "serious concern" or being "deeply troubled" with regard to particular findings. The FBI states that the "fact-finding objective of the OIG is compromised by such `subjective opinion.'" FBI Response at 8.
OIG Reply
In general, the OIG concluded that the Report should not be revised in response to this request, because it is noteworthy that the OIG’s investigative team, including the panel of five experienced scientists, did in fact find certain conduct and practices to be deeply troubling or of serious concern. In certain instances, however, we did delete these conclusions from the body ofa particular section where we thought the substitution of a different way of stating the point clarified our meaning. These opinions were then moved to the Conclusion portion of the section so that our concerns remain in the Report.
FBI Response
The FBI states that it is not inclined to transfer the investigative and crime scene management functions of the Explosives Unit out of the Scientific Analysis Section. The FBI notes that bomb scene investigations are unique and that it is necessary for explosives examiners to be involved at the scene. FBI Response at 9.
OIG Reply
The FBI appears to have misunderstood our recommendations in this regard. The OIG did not intend to suggest that EU examiners should be excluded from crime scenes, and we noted in the draft Report that "examiners in the EU should continue to advise and assist in the gathering of evidence at bombing scenes." We do think, however, that the investigative and crime-scene management functions now performed by examiners in the EU do not justify having non-scientist agents serve as examiners in that unit. Moreover, while scientifically qualified EU examiners can appropriately provide input for investigations, we do not think they should direct the overall investigation, because of the resulting tension between the roles of a forensic scientist and the criminal investigator. Based on the FBI’s response, in the final Report we have clarified our recommendation concerning the EU to state, "Examiners in the EU should continue to advise and assist in gathering evidence at bombing scenes, but primary responsibility for conducting investigations and directing crime-scene management should rest with components of the FBI outside the Scientific Analysis Section."
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