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CSI for Regulators Part I Forensic Evidence

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CSI for Regulators Part I Forensic Evidence Blood, Sweat and Tears Dean Benard Kristina Mulak Glenn Benard Ernie Atkins Objectives Raise awareness about ... – PowerPoint PPT presentation

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Title: CSI for Regulators Part I Forensic Evidence


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

3
Fact or Fiction?
  1. Handwriting analysis provides us with information
    about the personality of a subject of interest
  2. DNA analysis takes about 8 hours to complete
  3. Polygraph testing can be beaten by subjecting
    oneself to pain

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.

5
Types of Forensic Evidence
  • Document Analysis
  • ink dating
  • chemical analysis (thin layer chromatography)
  • indented writings
  • office equipment impressions
  • comparative handwriting
  • infra red photography

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

7
Document Analysis Document Dating
  • Courtesy of Forensic Document Examination
    Services, Inc.

8
Document Analysis Document Dating
  • Courtesy of Forensic Document Examination
    Services, Inc.

9
Indented Writings
Fig. A
Fig. B
Courtesy of Forensic Document Examination
Services, Inc.
10
Indented Writings
  • Courtesy of Forensic Document Examination
    Services, Inc.

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 didnt see the patient
  • In an interview the physiotherapist indicated she
    made those entries at the time of the review (two
    years earlier)

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

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

14
Comparative Handwriting
  • Courtesy of Forensic Document Examination
    Services, Inc.

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

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.

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

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
  • Chiropractors position was I dont control what
    patients bring me for prescriptions

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

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

21
Deoxyribonucleic Acid (DNA)
  • 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

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

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

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

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

26
Case Example DNA
  • Until this time Chiropractor denied everything
  • When presented with DNA evidence he eventually
    pled guilty

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
  • Dont forget there was far from a guaranteed
    outcome in a contested hearing without the DNA

28
Evidence Collection and Continuity
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.

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

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

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

33
Maintaining Evidence
  • Maintain adequate control
  • Secure location
  • Suitable environment
  • Prevent alteration of any kind

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

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

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

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

38
Legal Challenges
  • Laboratory error / contamination
  • failure to follow protocols
  • Questionable experts
  • qualifications
  • experience
  • Was a reference sample acquired legally

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

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?

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

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

43
Finding a Forensic Expert
  • Check the potential experts Curriculum Vitae
  • Determine what professional training the expert
    received
  • Is the expert certified by a recognized
    certifying body?

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

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

46
Summary
  • Manage peoples 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

47
Quiz
48
(No Transcript)
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.)

50
Speaker Contact Information
  • Kristina Mulak
  • Manager of Investigations
  • College of Chiropractors of Ontario
  • 130 Bloor Street West, Suite 900
  • Toronto, Ontario
  • kmulak_at_cco.on.ca
  • Ernie Atkins
  • Investigator
  • Commonwealth of Virginia DPOR-CID
  • Field Investigations, Tidewater Region
  • 9960 Mayland Dr. Suite 400
  • Richmond, Virginia
  • ernie.atkins_at_dpor.virginia.gov
  • Dean Benard
  • President
  • Benard Associates
  • 5-420 Erb Street West Suite 500
  • Waterloo, Ontario
  • dbenard_at_benardandassociates.com
  • Glenn Benard
  • Associate
  • Benard Associates
  • 5-420 Erb Street West Suite 500
  • Waterloo, Ontario
  • grbenard_at_benardandassociates.com
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