8127/frame/fm

Is a Written Report Obligatory?*
Probably the first question to ask about report writing is, does one have to?
Most government laboratories write some sort of report as a matter of course,
even if it’s just a one-line summary of the results. If the case goes to court,
the defense is always entitled to discover the results of any examinations, and
the results are invariably provided in the form of a written report.
* Again, we are most familiar with the rules governing expert reports and testimony in
the United States. You should check with the attorney for whom you are working for the
exact law governing your jurisdiction.
8127/frame/ch11 Page 274 Monday, July 24, 2000 10:01 AM

---

Communicating Your Results — Where Science Meets the Law
275
Private laboratories, which frequently provide services to both prosecu-
tion and defense, find themselves in a slightly different situation. Depending
on the legal “Rules of Discovery” in a particular jurisdiction, and whether the
case is criminal or civil, the defense may not be required to disclose forensic
results.* In civil proceedings, full discovery is almost always required of both
plaintiff and defendant. However, in criminal trials, the defense commonly
retains limited rights to keep certain materials confidential. If the defense
attorney does not request a report, or specifically asks that one not be written,
what is the obligation of the criminalist? Currently, conflicting views exist
regarding this dilemma. First of all, because we participate in the legal system,
we must abide by its rules and regulations. In other words, we don’t get to
decide. However, assuming your 
 
defense attorney
client is acting legally and
ethically, in most cases you should respect a request not to forward a report.
We acknowledge that not all practitioners agree with this view. We also empha-
size that this would never be acceptable if your client is the prosecution.
Although the extent of required discovery varies by jurisdiction and, for that
matter by case, the defendant (and his experts and attorney) usually (at least
in the United States) have the right to review potentially inculpatory evidence,
and the prosecution has the obligation to disclose exculpatory evidence.
Whether or not your report is disclosed, you nevertheless have a scientific
obligation to document your results formally. Presumably, you have a detailed
and accurate set of bench notes from your examination or analysis. You should
also have some case information to assist you in your interpretation of those
notes. You could simply write a report to the file in preparation for saving
your own sanity if you ever have to go back to it. Or you could pull your notes
out 25 years later when the case is rediscovered by a persistent investigator
and resurrect your interpretation and conclusions from scratch. If you are at
all like us, 25 minutes is almost as bad as 25 years; we make sure to keep
copious notes and close out each case with at least a written, if unformatted,
summary of our interpretation of the data and the conclusions to which it led.
What about private consultants who do not generate data, but simply
review the work of others and render an opinion about it? Should they be
required to provide a written report, to be disclosed to the other side at the
attorney’s discretion? We believe that a reviewer has the same obligations as
the individual or agency who performed the work. Within the bounds of
legal obligation, the consultant should provide a detailed and explicit report
that clearly states her opinion and the data and other information upon
which that opinion rests. General lists of possible problems with a procedure
* Because we are not legal experts and our familiarity with the legal system stems only
from our interaction with it as forensic scientists, we’ll confine any legal references to U.S.
law. We hope that those of you reading this in other countries will be able to take the
philosophical points and apply them to your own legal system.
8127/frame/ch11 Page 275 Monday, July 24, 2000 10:01 AM

---

276
Principles and Practice of Criminalistics
and nonspecific comments about the reliability and interpretation of results
are no more acceptable from this quadrant than would be an incomplete
report from the primary analyst.
Unfortunately, some of the defense-only consultants who insist on invad-
ing the laboratory anew with each subsequent case to scrutinize the same
validation studies and the same proficiency test results don’t seem to feel a
reciprocal obligation to document their opinions. Figure 11.2 contains a
reproduction of one such consultant’s report that was finally written only
after a direct order from the judge. Although several pages of typing were
generated, the report contains only generalities, some unsubstantiated, some
blatantly incorrect. It provides no hint whatsoever of the “expert’s” interpre-
tation of the specific data from the actual case other than that it might be
different than the laboratory’s interpretation. In our opinion, this expert did
both the court and her own client a disservice with this immaterial work
product.