CSI for Regulators Part I Forensic Evidence “Blood, Sweat and Tears ”

1. CSI for Regulators Part I Forensic Evidence“Blood, Sweat and Tears” Dean Benard Kristina Mulak Glenn Benard Ernie Atkins

2. Objectives • Raise awareness about forensic evidence • Discuss the challenges that exist when using forensics • Provide some considerations when determining whether to use forensics • Cover some of the legal considerations around the use of forensics CLEAR 2008 Annual Conference Anchorage, Alaska

3. Fact or Fiction? • Handwriting analysis provides us with information about the personality of a subject of interest • DNA analysis takes about 8 hours to complete • Polygraph testing can be beaten by subjecting oneself to pain CLEAR 2008 Annual Conference Anchorage, Alaska

4. What is Forensics? Forensic Science - the application of various scientific applications to answer questions of interest to the legal system. Forensic Evidence – the items obtained from the scientific applications that are useable in assisting to answer questions of fact that may be in dispute. CLEAR 2008 Annual Conference Anchorage, Alaska

5. Types of Forensic Evidence • Document Analysis • ink dating • chemical analysis (thin layer chromatography) • indented writings • office equipment impressions • comparative handwriting • infra red photography CLEAR 2008 Annual Conference Anchorage, Alaska

6. Types of Forensic Testing • DNA (Deoxyribonucleic Acid) Testing • semen, saliva, hair, blood • Chemical Analysis • content testing • drug / toxicology testing • Polygraph (“Lie detector”) • Computer Forensic Examination CLEAR 2008 Annual Conference Anchorage, Alaska

7. Courtesy of Forensic Document Examination Services, Inc. Document AnalysisDocument Dating CLEAR 2008 Annual Conference Anchorage, Alaska

8. Document AnalysisDocument Dating Courtesy of Forensic Document Examination Services, Inc. CLEAR 2008 Annual Conference Anchorage, Alaska

9. Indented Writings Fig. A Fig. B Courtesy of Forensic Document Examination Services, Inc. CLEAR 2008 Annual Conference Anchorage, Alaska

10. Indented Writings Courtesy of Forensic Document Examination Services, Inc. CLEAR 2008 Annual Conference Anchorage, Alaska

11. Case Example Indented Writings • A physiotherapist allowed her billing number to be used by another clinic for patients she never actually treated • A review of the patient charts revealed a document made by the physiotherapist indicating she reviewed the chart but didn’t see the patient • In an interview the physiotherapist indicated she made those entries at the time of the review (two years earlier) CLEAR 2008 Annual Conference Anchorage, Alaska

12. Case Example Indented Writings • The investigator observed signs that documents may have been added after the fact (paper appeared new & notations all in past tense) • Documents sent for analysis • Analysis revealed that all the documents were created at the same time • indented writing from the first and second pages were found on subsequent pages • There was a lack of indented chart entries on the suspect documents CLEAR 2008 Annual Conference Anchorage, Alaska

13. Case Example Indented Writings Interesting Facts: • The time to get this done was 30 days at a private lab • Cost approximately $4500.00 • Outcome as yet not determined but likely to result in a guilty plea again resulting in significant savings by avoiding a contested hearing CLEAR 2008 Annual Conference Anchorage, Alaska

14. Comparative Handwriting Courtesy of Forensic Document Examination Services, Inc. CLEAR 2008 Annual Conference Anchorage, Alaska

15. Comparative Handwriting • No two naturally written words or signatures produced by the same person are identical in every detail. • No act of writing, when executed in a free and natural manner, is void of that element of writing known as variation. • Mood, physical condition, muscular co-ordination and external influences can impact on handwriting CLEAR 2008 Annual Conference Anchorage, Alaska

16. Comparative Handwriting • Examiners use microscopes to look for details such as: • tracing lines • smudges • tremors • inconsistencies in shapes • Examiners require a suitable number of samples with similar letter combinations. CLEAR 2008 Annual Conference Anchorage, Alaska

17. Comparative Handwriting • Most attackable from a defense perspective • Some case law that rules handwriting analysis as inadmissible • Some have suggested that there is a lack of sound scientific data behind this type of forensic testing CLEAR 2008 Annual Conference Anchorage, Alaska

18. Case Example Comparative Handwriting • Chiropractor is accused of writing false prescriptions for orthotics to satisfy insurance company requirements • Twenty seven prescriptions from four separate medical doctors provided by insurance company • Investigator inquired and discovered that three of the four do not exist and the fourth works in the same office as the Chiropractor • Chiropractor’s position was “I don’t control what patients bring me for prescriptions” CLEAR 2008 Annual Conference Anchorage, Alaska

19. Case Example Comparative Handwriting • Investigator reviewed the prescriptions noted similarities in handwriting, and similar discrepancies in size and layout of prescription pads • Forwarded for analysis • Exhibits submitted were found by the expert to have all been written by the same person • Multiple entries from patient charts known to be written by the chiropractor were also provided to expert and these too were found to be written by the same person as the prescriptions CLEAR 2008 Annual Conference Anchorage, Alaska

20. Case Example Comparative Handwriting Interesting Facts: • The analysis was aided by the fact that every prescription contained the exact same phrases and sequences of letters and words. Only the signatures were different • In Ontario the Centre for Forensic Sciences (Provincially funded lab) was able to complete this testing for us at no cost • For this type of testing it was worthwhile because turnaround time was relatively short (45 days) • If we were dealing with DNA there would be 7-10 month wait CLEAR 2008 Annual Conference Anchorage, Alaska

21. Highly accurate (within millionths of a percent) Usually admissible in hearings and courts Highly effective in resolving questions in dispute where credibility is at issue Deoxyribonucleic Acid (DNA) CLEAR 2008 Annual Conference Anchorage, Alaska

22. Considerations for DNA Testing • It is completely useless if there is not a reference sample • Can be very expensive if being done in private laboratories • Results can take months to obtain especially if using government labs • There are different types of DNA not all accepted in some jurisdictions CLEAR 2008 Annual Conference Anchorage, Alaska

23. Two Types of DNA • RFLP (Restriction Fragment Length Polymorphism) • gold standard test • sometimes called DNA fingerprinting or profiling • considered to be the most accurate • requires many sample cells that are “fresh” • takes anywhere from 3 weeks to three months CLEAR 2008 Annual Conference Anchorage, Alaska

24. Two Types of DNA • PCR (Polymerase Chain Reaction) • not as accurate as RFLP • takes much less time to complete--a week at most. • requires minute samples which can be very old years even decades old without reduction in accuracy • matches are not conclusive CLEAR 2008 Annual Conference Anchorage, Alaska

25. Case Example DNA • Chiropractor accused of sexual abuse • Alleged victim provides her panties claiming his semen will be found there • Chiropractor mails an envelope to the victim and this too is collected • DNA from semen in panties matched DNA in the saliva used to lick the envelope CLEAR 2008 Annual Conference Anchorage, Alaska

26. Case Example DNA • Until this time Chiropractor denied everything • When presented with DNA evidence he eventually pled guilty CLEAR 2008 Annual Conference Anchorage, Alaska

27. Case Example DNA Interesting Facts: • DNA testing of three sources was required • Victim for reference, panties, and envelope • Cost of testing - almost $10,000 • Time to get results - 7 weeks • Estimated savings from avoiding contested hearing $50,000-$75,000 • Don’t forget – there was far from a guaranteed outcome in a contested hearing without the DNA CLEAR 2008 Annual Conference Anchorage, Alaska

28. Evidence Collection and Continuity CLEAR 2008 Annual Conference Anchorage, Alaska

29. Evidence Collection and Continuity Expert forensic evidence provided by the most competent of experts will mean nothing if the evidence has not been properly collected and stored with access to the evidence limited and controlled. CLEAR 2008 Annual Conference Anchorage, Alaska

30. Authentication of Evidence • Identify the evidence • Provide proof of the source • Custody of the evidence • Description of Condition on discovery • Proper receipt or list CLEAR 2008 Annual Conference Anchorage, Alaska

31. Collecting Evidence When collecting or providing evidence for a forensic laboratory be sure to seek advice on proper collection processes: • How to collect the sample • How much do they need • How should it be packaged and transported CLEAR 2008 Annual Conference Anchorage, Alaska

32. Maintaining Evidence Preserving Identity • Marking where possible without affecting its evidentiary value • Tag when marking is not practicable • Sealing in container and labeling when tagging and marking are not practicable • Identify who collected the evidence and placed it into custody CLEAR 2008 Annual Conference Anchorage, Alaska

33. Maintaining Evidence Maintain adequate control: • Secure location • Suitable environment • Prevent alteration of any kind CLEAR 2008 Annual Conference Anchorage, Alaska

34. Preserving the Evidence • You must control the security of the evidence – i.e. locked up with limited access. • Record all accesses to the evidence • Maintain a suitable environment • if evidence is perishable photograph it and use proper means to sustain it. • Avoid any alteration of the evidence CLEAR 2008 Annual Conference Anchorage, Alaska

35. Document the Entire Process • Without proper documentation evidence will lack a proper foundation • The consequences include • Unavailable evidence: lost, destroyed or never collected • Unauthenticated evidence: failure to show the source, and handling of the materials • Damaged evidence: not useable because of deteriorated or altered condition CLEAR 2008 Annual Conference Anchorage, Alaska

36. Legal Challenges Challenges may look for two possible outcomes: • The evidence being deemed inadmissible • The evidence being given reduced weight The challenge may be on the following grounds: • The nature of the forensic testing itself • The quality of the process leading to the result CLEAR 2008 Annual Conference Anchorage, Alaska

37. Legal Challenges Quality of the Process • Sources of evidence • collected from a scene • provided by a victim or third party • validity and continuity will be questioned • Continuity post collection • who had access • What are your protocols / process for handling evidence • potential contamination or alteration CLEAR 2008 Annual Conference Anchorage, Alaska

38. Legal Challenges • Laboratory error / contamination • failure to follow protocols • Questionable experts • qualifications • experience • Was a reference sample acquired legally CLEAR 2008 Annual Conference Anchorage, Alaska

39. Challenging the Value of Forensic Testing Daubert Opinion (US Supreme Court):  • The trial judge must screen scientific evidence to ensure it is relevant and reliable • Factors the court should consider include: • testing and validation • peer review • rate of error • general acceptance • Canadian courts although historically less rigid in determining the value of expert evidence have referred to Daubert occasionally CLEAR 2008 Annual Conference Anchorage, Alaska

40. Things to Consider Before Using Forensic Experts • How good is the case without forensic evidence? • What things can we look at first before using a forensic expert? • What information do we have that leads us to believe a specific forensic test will show something? • What might the political impact be if we pursue certain approaches? CLEAR 2008 Annual Conference Anchorage, Alaska

41. Things to Consider Before Using Forensic Experts Possible Advantages: • May clear up issues of credibility • Provide certainty with respect to culpability • Possible cost savings if contested hearing is avoided due to guilty plea • May spare a victim the difficulty of a contested hearing • If contested hearing goes forward success is more likely and prosecution may be easier CLEAR 2008 Annual Conference Anchorage, Alaska

42. Things to Consider Before Using Forensic Experts Possible Disadvantages: • Testing is expensive if done privately • No guarantee that testing will be positive • Expert testimony at a hearing can be very costly further adding to the cost of the matter • Time involved can significantly delay the process • If testing is negative this too must be disclosed and case could be more difficult to prosecute CLEAR 2008 Annual Conference Anchorage, Alaska

43. Finding a Forensic Expert • Check the potential expert’s Curriculum Vitae • Determine what professional training the expert received • Is the expert certified by a recognized certifying body? CLEAR 2008 Annual Conference Anchorage, Alaska

44. Finding a Forensic Expert • Past affiliations with state or provincial labs • Internships / mentorships • Courtroom / Hearing experience • Previous acceptance by courts as an expert in their field • Consider talking to your legal counsel who may have suggestions CLEAR 2008 Annual Conference Anchorage, Alaska

45. Summary • Forensic evidence can be very valuable and should be considered in some cases • Recognize that it has some limitations • Carefully explore the feasibility and appropriateness of forensic tests you are considering by: • consulting with prosecutors • consulting with forensic experts • Considering the cost benefit in your decision CLEAR 2008 Annual Conference Anchorage, Alaska

46. Summary • Manage people’s expectations regarding their suggestions of forensic testing • be familiar with limitations such as: • continuity of evidence issues • resource availability • time frames • Ensure you have appropriate protocols in place to manage evidence regardless of what that evidence may be CLEAR 2008 Annual Conference Anchorage, Alaska

47. Quiz CLEAR 2008 Annual Conference Anchorage, Alaska

48. CLEAR 2008 Annual Conference Anchorage, Alaska

49. References • Mr. Dan C. Purdy, Forensic Document Examination Services, Inc. Ottawa, Ontario Canada. • R. v. J.-L.J., 2000 SCC 51 (CanLII). • Daubert v. Merrell Dow Pharmaceuticals (92-102), 509 U.S. 579 (1993). • R. v. Mohan, 1994 CanLII 80 (S.C.C.) CLEAR 2008 Annual Conference Anchorage, Alaska

50. Kristina Mulak Manager of Investigations College of Chiropractors of Ontario 130 Bloor Street West, Suite 900 Toronto, Ontario kmulak@cco.on.ca Ernie Atkins Investigator Commonwealth of Virginia DPOR-CID Field Investigations, Tidewater Region 9960 Mayland Dr. Suite 400 Richmond, Virginia ernie.atkins@dpor.virginia.gov Dean Benard President Benard + Associates 5-420 Erb Street West Suite 500 Waterloo, Ontario dbenard@benardandassociates.com Glenn Benard Associate Benard + Associates 5-420 Erb Street West Suite 500 Waterloo, Ontario grbenard@benardandassociates.com Speaker Contact Information CLEAR 2008 Annual Conference Anchorage, Alaska