A Future of Rising Regulations With Dwindling Funds
U.S. forensic laboratories are reeling from the enfeeblement of city, state and federal budgets. And with substantive regulatory changes slated for 2011, the labs may soon experience alterations in how they are accredited and managed, how their staffers are trained and certified, and how they are funded and paid for their services.
Having received a substandard congressionally mandated report card from the National Academy of Science (NAS) in February 2009, U.S. forensic laboratories are bracing for transformative changes. Following two Senate Judiciary Committee hearings, Chairman Senator Patrick Leahy (D-VT) plans to introduce new legislation that will require all labs receiving federal funds to become certified and meet proficiency, education and training standards. The White House is also expected to weigh in on the new legislation.
Still, not all labs are taking issue with the forthcoming requirements. “We have been satisfying those requirements for a long time now— our labs for 20 years and our staff members for 30 years. Private labs don’t have many ways to prove their worth to the forensic community outside of accreditations and certifications,” says Dr. Robert Middleberg, VP Quality Assurance, Lab Director and Forensic Toxicologist, NMS Labs, Willow Grove, PA.
He says that it will serve forensic labs well to accept the need for accreditation and certification but concedes that substantial expenses are involved in the form of fees to accrediting agencies as well as for the manpower, time and resources needed to maintain the accreditation status.
“I believe that the prevailing discussion on the state of the labs is necessary. It is clear that forensic labs don’t have the same level of experience, training, support and education available to academic research, diagnostic, medical and industry labs—and it should be no surprise, therefore, that they are not at the same caliber as the labs in those other fields,” says Dr. Karl Reich, Chief Scientific Officer, Independent Forensics Laboratory, Hillside, IL.
“There are few forensic R&D departments and few or no PhD Perspective level scientists in the field, and masters-level programs are not structured from an original science R&D perspective and they are not funded well—so it is inevitable that they will not measure up to the required standards,” says Reich.
“I have reviewed the NAS report and participated in several discussions on this subject. Basically, the findings recognized some shortcomings in the processes and procedures used by forensic labs for some time. I have found that most of the report’s positions were useful and welcome information,” says Ronald Singer, Technical and Administrative Director, Tarrant County Medical Examiner’s Office, Fort Worth, TX, and a past president of the 6,000-member American Academy of Forensic Sciences.
Even though they, like the NAS report, acknowledge that some forensic labs perform below par and should be required to shape up, lab chiefs like Middleberg, Reich, Singer and others who have kept their labs in order have expressed disappointment in what they consider a broad-brush approach by the NAS reviewers, which paints everyone into the same picture.
Singer notes, “There were lots of knee-jerk reactions on all sides to the NAS report. What is being overlooked is the report made it clear that it was not passing judgment on the techniques currently used in the field. Instead, it points out that the techniques have not been validated in most cases and that basic research to ensure overall scientific validity was needed. In addition, the report calls for standardization of terminology and reporting, which are tremendously important.”
Charged with key responsibilities in the criminal justice process, forensic labs have grown from a mere 100 state and local forensic facilities in the 1970s to more than 1,000 crime labs today, including about 400 with highly sophisticated capabilities, both in private settings and in the 14,000 police and other law enforcement departments in the U.S. Such growth signals the growing importance of scientific evidence in legal proceedings.
One of the fastest-growing areas today is DNA testing, according to Reich. “The field of forensic DNA did not exist much before 1997, and since then some 20 million samples have been analyzed—so, from zero to 20 million in 13 to 14 years represents a dramatic increase in growth,” he says. With respect to new technologies, however, compared to other fields of science such as medical diagnostics or research, forensics is nowhere near the front edge of what is happening, says Reich.
Still, despite some of these shortcomings and deficiencies, the U.S. forensics model—lab design, work flow, type of samples, analyses and management structure—has been emulated by many countries around the world, says Reich.
In her book, Forensic Science Under Siege (Elsevier, 2007), Kelly Pyrek identified nine types of forensic science examinations: latent prints, documents, firearms, crime scene, explosive and fire debris, postmortem toxicology, forensic biology and molecular biochemistry, trace evidence evaluation, and controlled substances.
To maximize their resources, which are stretched in the current economic downturn, individual forensic labs do not generally offer analyses in every discipline. Based on 2004 statistics, the American Society of Crime Lab Directors (ASCLD) reported that 86 percent of accredited forensic labs have the capabilities to analyze controlled substances, 60 percent have the wherewithal to assess firearms and tool marks, 57 percent have trace evidence capabilities, 42 percent have forensic biology and DNA capabilities and 51 percent were equipped to do latent print analyses. This array of capabilities and the nature of the evidence they pursue give forensic labs a unique aura.
Criminalistics-based sciences such as forensic DNA, trace evidence, serology and drug chemistry do tend to be unique compared to clinical laboratory science, R&D or other laboratory analyses, according to Middleberg. “We have always considered the field to be cool— even before the current popular TV shows. As a large, well-known private lab, we were involved in several high-profile poisoning, DNA and other cases across the country. We have worked on cases involving high-profile actors, actresses, political figures and athletes, among others. We were involved in the first O.J. Simpson trial, and I testified in the first Phil Spector trial a few years ago,” says Middleberg.
Like other private forensic laboratories, NMS, in operation for 40 years now, has a fee-for-service business model, although it also does some contract work mostly via government RFPs. The single-location facility is possibly the largest private laboratory in the country providing forensic toxicology services, once labs that provide urine screening for drugs are excluded. In 2010, NMS handled more than 40,000 forensic samples, compared with some larger medical examiners offices in major U.S. cities that handle about 5,000 to 10,000 samples per year, on average, including DUI cases. NMS operates in multiple jurisdictions in all 50 states and also does some international work. “We would love to grow international business. We recently obtained our ISO 15189 accreditation from the College of American Pathologists,” says Middleberg.
NMS serves law enforcement— state, county, municipal and federal police—and legal agencies such as district attorneys’ offices. Some states don’t have toxicology facilities and must rely on private labs. “The majority of our work comes from other labs that need additional capabilities, and we also get samples on the public health side from medical examiners, coroners and private attorneys. We do not accept samples from the citizenry at large,” says Middleberg.
Competitors include other private labs as well as government facilities. “On the private side we bid against competing labs for contracts, but we don’t have a lot of competitors in our space. We are probably the best known and benefit from the momentum of our 40 years of experience,” he says. To market its services, NMS participates in key conferences and has sales and marketing teams covering both the U.S. and countries overseas.
Middleberg says, “We have also operated a limited-capability crime laboratory since our inception in 1970, which focuses on forensic biology including DNA, traditional serology, drug chemistry and some trace evidence—we are not doing fingerprint analysis, firearms examination, and pain and arson analysis, although we do some hair and fiber analysis.”
For its forensic work, NMS uses laboratory developed tests (LDTs), or “home brews,” testing large panels of analytes simultaneously to enhance efficiency. “We homegrow our methods, sometimes from ideas in the literature but more often from internal efforts,” says Middleberg. In the U.S., the Food and Drug Administration (FDA) has oversight responsibilities for LDTs, and its reach does extend to the forensic area, according to Middleberg. “They do not intervene, however, because they figure that in the forensic arena oversight of the tests is taken over by the courts. This is shortsighted because the courts are poor arbiters of the usefulness and utility of a given test,” he says. This has been an ongoing issue, and the NAS report also covers it, he adds.
“When the courts don’t do a good job and the FDA remains uninvolved, labs like ours have to participate in various proficiency tests to ensure that our methods are working. But the reality is that for a number of our tests, we are usually first to market. There are no benchmarks, so we use internal mechanisms and blinds to assess the tests and sometimes share samples with and compare our results with other labs because there are no other options,” says Middleberg.
Independent Forensics is the only nongovernmental forensics laboratory in the state of Illinois and does only DNA testing. One of Independent’s key differentiating features is that it designs, develops, manufactures, sells and supports new products for the forensic market. “No other lab that we know of comes up with new products in this marketplace. A substantial amount of our effort is spent in R&D and in the development of new products. At the same time, we are a fully accredited laboratory able to do forensic DNA, paternity and family relationship studies and other processes with DNA,” says Reich, who does an extensive amount of expert witness work as well as lab reviews both in the U.S. and internationally.
Independent also uses a fee-for-service model and devotes about a third of its efforts to serving a broad spectrum of customers including attorneys, clients, the general public, law enforcement agencies and medical examiners, among others. Another third to a half of its efforts are aimed at developing and selling new kinds of tests and analyses such as the most scientifically rigorous tests for blood, saliva, semen, sperm and urine. The remainder of its efforts are devoted to expert witness work for the legal profession—mostly but not entirely for the defense in court proceedings.
The Tarrant County Medical Examiner’s Office is a regional facility that serves four counties in the state of Texas on a contractual basis. The Tarrant county forensic lab also takes on cases on a fee-for-service basis regularly from about 10 to 12 other counties in north central Texas, and for anyone else with a legitimate need for its services. “We also get cases from all over the U.S. Most of our work involving the coroner’s office— bodies coming in for autopsy—are from our region. In general, however, our laboratories are available to anyone in need of our services,” says Singer.
Singer explains that this business model seems to be the current trend with medical examiner’s offices. He says that city or county crime labs, which are arms of police agencies, are limited to law enforcement and sometimes even to their own parent organizations. “The medical examiner’s office, however, is a more independent body and is therefore available to anyone that needs its services,” says Singer. He adds that as a result, his organization works for both defense attorneys and for prosecutors (but never for both on the same case) in the immediate region and around the country. “We are funded primarily by the county. We earn revenue from our external services, and those earnings go to the county to help offset the costs of our laboratories.”
“Our facility has full-service capabilities. We have a toxicology laboratory and a forensic chemistry laboratory for analysis of drugs, pills, powders and controlled dangerous substances. We are also responsible for the breathalcohol program in north central Texas. In addition, we have a full-service crime laboratory that includes latent print capabilities, DNA testing, trace analysis and firearms. In addition, because we are a medical examiner’s office, we have the added benefit of a full-time forensic anthropologist and an odontologist on staff,” says Singer.
Looking ahead, the lab chiefs concur that there is tremendous uncertainty in the field right now and that the forensic sector will have to grapple with greater requirements for accreditation and certification while nursing decreasing budgets. Hiring is already being constrained. Chief toxicologists are losing their jobs; the city of Philadelphia, the Commonwealth of Virginia and several other counties have eliminated the position of chief toxicologist to save money, according to Middleberg.
“The next few years will be bumpy because of a lack of funding from the public sector and could get considerably worse unless the federal government comes up with an incredible amount of money for the forensic services. I am not sure that the picture in the next few years is very rosy…I think it will get a bit scary,” says Middleberg.
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