The Laboratory Report: What's In It? What Should Be in It? One Man's Opinion

1. The Laboratory Report:What’s In It? What Should Be in it?One Man’s Opinion Thomas A Kubic MS, JD, Ph.D. John Jay College of Criminal Justice, CUNY The Graduate Center, CUNY National Institute of Justice Trace Evidence Symposium August 13-16, 2007

2. To Write or Not to Write,That is the Question?

3. “Report” v.i.To make a statement of facts. n. An account returned; a statement or relation of facts given in reply to inquiry. Webster’s Universal Dictionary

4. Let’s Think About This v.i.To make a statement of facts. n.An account returned; a statement or relation of facts given in reply to inquiry. What about opinions, conclusions, data, references?

5. Are There Places for Guidance? • ASTM • ASCLAD-LAB • SWGMAT Suggestions (Glass Draft 2001) • ISO - 17025 • Court Requirements (FRE, FRCivilP, FRCrP)

6. One Man’s Opinion (Anybody and Everybody Has One on Anything) INCLUDE EVERYTHING!! Facts, Opinions, Conclusions, Bases, Methods, Data, References (relied upon), Expertise (education, training, experience, publications, etc.) LIMITATIONS

7. ASTM E 620-97 Standard Practice for Reporting Opinions of Technical Experts E 678-98 Standard Practice for Evaluation of Technical Data E 860-97 Standard Practice for Examining and Testing Items That may Become Involved in Litigation. E 1020-96, E 1199-95

8. SWGMAT (Glass Draft 2001) 7.5 Report Content 7.5.1 Oral reports should be discouraged in most instances, because miscommunication can occur easily and documentation of the communication content is difficult to achieve. In addition, it is not practical for an oral report to contain all of the information listed in section 7.5.2. When the client or an intermediate user of the examiner’s information does not want a written report, the expert should make note of such. When this request, that no written report be issued, is honored and none is provided, then that fact shall be documented by examiner to the client preferably in writing. 7.5.2 Content of Written Reports Written Reports should contain the following information.

9. SWGMAT DRAFT Cont’d 7.5.2.1 Descriptive Information If the report is preliminary, supplementary, or for investigative purposes only, this should be prominently and clearly indicated in the report. It is of particular importance to be certain this is clearly relayed when the report is oral. Identification number or other unique identifier of the report and date report was issued. Agency, unit, company, organization, or person issuing report with proper address and phone number. Name and address and affiliation of any person or organization who has rendered an opinion or generated data for any opinion(s) found in the report. Similar information for any person or organization that has reviewed the report for accuracy, content or certification. This information shall be complete.

10. SWGMAT DRAFT Cont’d 7.5.2.1 Descriptive Information Name of the person and/or organization requesting the report or examination. General description of all items or places examined in connection with the opinion. A unique identifier system should be employed such as serial numbers, marking, photography, or other method to ensure future unequivocal identification of samples or exhibits.  Date and location of any examination with the identification of the person performing the examination, if not the examiner rendering the report. Purpose for which the examination was made and the report rendered. The general scope of examination and investigation conducted in order to reach the conclusion(s) and opinion(s) reported.

11. SWGMAT DRAFT Cont’d 7.5.2.2 Pertinent Facts The report shall contain all facts that are significant and pertinent to the conclusion(s) reached and the opinion(s) rendered. These shall be reported in agreement with the items listed below. Facts that are based on the personal observations, measurements, or examinations conducted by the examiner. These are included even if the determination is from a replica or rendering such as a drawing or photograph that is purported to represent the actual item or event. Other facts or information relied upon by the examiner should be identified. This includes measurements or determinations made by others. The measurements or determinations made should be adequately identified. Vague terminology such as physical measurements or chemical and optical properties are generally not appropriate. Equipment used for examination, or used to make determinations should be adequately identified at least by generic class and type. Manufacturer and model identification may be appropriate

12. SWGMAT DRAFT Cont’d 7.5.2.2 Calibration data and quality assurance information should be supplied. If it is voluminous, it may be placed in an appendix or clearly referenced so that it can be obtained if required. Whenever pertinent findings of fact are established through the examination or testing the person rendering the opinion(s) or drawing the conclusion(s) shall have either performed, supervised, participated in or observed the examinations or testing. If this is not the case, such a fact shall be clearly stated in the report, and the person who actually conducted the examination or test and his affiliation shall be clearly stated. 7.5.2.3 Opinions and Conclusions All of the conclusions drawn by the examiner from his testing, observations, review of facts, and other information as well as any opinions to be rendered at any future legal proceeding or forum should be contained in the report. Any and all major references relied upon for information in order to draw conclusions or render opinions should be cited or referenced. 

13. SWGMAT DRAFT Cont’d 7.5.2.3 Opinions and Conclusions The reasoning behind the conclusion(s) and opinion(s) of the examiner should be contained in the report. The uncertaintyof any pertinent measurements, conclusions or opinions should be stated. 7.6 Optional Information The report may contain the following information. It is suggested that this material be contained in the report and it is considered to be good professional practice. It is recognized that in many situations organizations may have valid reasons to omit this this information from the report. 

14. SWGMAT DRAFT Cont’d 7.6.1 Examiner Qualifications The information need only be that which is pertinent to the conclusion(s) and opinion(s) in this report.  The education, training, and experience that bear on the examiner’s ability to conduct the examination and render the opinion(s) in the particular area of expertise should be documented. Names and locations of all formal educational institutions should be revealed. The examiner’s current and past employers as they pertain to these conclusion(s) and opinion(s) should also be stated. Licenses, certifications, and accreditations of the examiner or any other individual or organization, who contributed significantly to the data employed for the conclusion(s) or opinion(s) should be included.

15. SWGMAT DRAFT Cont’d 7.8 Appendices Appendices may be employed in, or attached to the report. These may contain tables, graphs, charts, spectra, data, calculations, photos, notes and other materials as appropriate. It is suggested that certain critical information such as spectra, calculations and certain notes be included as appendices. It is likely that they will be required to be supplied at a later time and early inclusion may result in an economy of effort by all concerned parties and the avoidance of confusion or injustice. NOT in 2001 DRAFT Disclosure Requirements Federal Rules of Criminal Procedure Rule 16 Federal Rules of Civil Procedure Rule 26 Civil Disclosure is MORE extensive. Should it be? (Freedom vs. $$$)

16. International Standards Organization Standard 17025 - Laboratory Accreditation National Voluntary Laboratory Accreditation Program National Institute of Standards and Technology Handbook 150

17. NVLAP Report Requirements 5.10.1.a Results or each test …shall be reported accurately, clearly, unambiguously and objectively in accordance with…test or calibration methods. 5.10.2 Test report…… a. Title. b. Name and address of laboratory and location where test were carried out if different than the laboratory. c. Unique identification of the test report. d. Name and address of the customer (client). e. Identification of the method used. f. A description of, the condition of, and unambiguous identification of the item(s) tested… g. Date of receipt of …items when critical and date(s) tests performed. h. Sampling plan procedures when required (#drug packets and how selected) i. Units of measure. j. Name …signatures or equivalent id of person(s) authorizing the report.

18. NVLAP Report Requirements 5.10.3 Test Reports 5.10.3.1 in addition to 5.10.2 where necessary for interpretation of results… a. deviation from, additions to, or exclusion s from the test method and information on specific test conditions… c. where applicable, a statement on the estimated uncertainty of measurement: …is needed in test reports when it is relevant to the validity or application of the test results…(DWI or felony sale of cs) d. where appropriate and needed , opinions and interpretations 5.10.3.2 In addition reports shall contain results of sampling…where necessary for interpretation of results. d. reference to sampling plan and procedures used.

19. Legal and Court Requirements Federal Rules of Evidence regarding Evidence and Expert Testimony 401, 702, 703, 705 Discovery Issues Federal Rules of Criminal Procedure 16 Federal Rules of Civil Procedure 26

20. Legal and Court Requirements FRE 705 Expert may be required to disclose underlying facts or data (for his opinion) under cross examination.

21. Legal and Court Requirements FRCrP – Discovery Rule 16 f. Reports of examinations and tests. Results and reports…any scientific test or experiment. g. Expert witnesses a written summary of testimony (under FRE 702, 703, 705) with witnesses opinions, bases and reasons, with qualifications.

22. Legal and Court Requirements FRCivilP – Discovery Rule 26 (2)BExpert witnessessupply a written report signed by the witness. A complete statement of all opinions, basis, reasons therefor: the data, other information used in forming opinions, exhibits, used as a summary or support, qualifications of the witness, list of publications for past 10 years, compensation paid, list of other cases wherein the witness has testified at trial or deposition within the last four years

23. To Or NOT Even if you must use Have NO Fear State Your Opinion

24. Does Report Content Influence Testimony (Giving Evidence) Yes Preparing a proper report crystallizes your thinking and pulls together all the supporting data. It can help prevent over testimony. It can assist in avoiding under testimony. PS. It can work wonders in moderating over zealous prosecutors and attorneys.

25. Summary and Conclusions A complete and comprehensive report with supporting materials in the long run saves time, leads to a higher level of forensic performance, and is in the interest of justice and society. What constitutes this seems to be agreed upon by the three documents that were reviewed: therefore maybe its NOT One Man’s Opinion

26. Thank you for your attention!!! For a copy of this Power Point send a post card to Thom Kubic, PO Box 208, Greenlawn, NY 11740