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Use of microbial forensics data in scientific, legal, and policy contexts
C H A P T E R
26 Use of microbial forensics data in scientific, legal, and policy contexts Christopher A. Bidwell1, Randall Murch2 1
Federation of American Scientists, Washington, DC, United States; 2Virginia Polytechnic Institute and State University, Arlington, VA, United States
Introduction In policy and legal contexts surrounding any biological incident or allegation, microbial forensics should be seen both for its investigatory value (determining what happened, what is happening, or what could soon happen) and its attribution value (determining if whatever did happen was the result of intentional malfeasance, an accident, or a naturally occurring phenomenon). These are the first two questions that the ultimate policymaker wants to be answered so that they can address the quintessential question: What to do about it? If a policymaker wishes to utilize microbial forensic data to answer these questions, that data must fit into a known and reliable decision-making framework. More often than not, that framework will be grounded in the logic and reasoning of the law and its associated procedural and evidentiary requirements, regardless of whether any legal or courtroom proceedings result from a given biological incident or allegation. In making decisions, microbial forensics analysis will not be dispositive in and of itself but should be combined with other relevant
Microbial Forensics, Third Edition https://doi.org/10.1016/B978-0-12-815379-6.00026-X
analysis and circumstantial evidence. To the extent that microbial forensics data can be explained in relation to these other factors, it will more likely be useful in the policymaking process. In addition to legal frameworks, technical microbial forensics data will also be viewed through cultural, religious, professional, and generational lenses. In other words, useful microbial forensics data must not only pass significant scientific and technical validation hurdles, but several additional disassociated hurdles as well. Failure to clear any one of these additional hurdles could make scientifically valid microbial forensic analysis irrelevant to (or ignored by) those charged with making policy judgments. Another challenge for the forensic microbiologist will be one of effective communication as the legal, law enforcement, religious, media, political, diplomatic, emergency response, and medical disciplines each have their language, professional norms, idiosyncrasies, and decision-making time cycles. These different characteristics can sometimes inhibit clear interdisciplinary communication that is necessary for creating sound policy decisions that would utilize microbial forensics
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data. The burden on the microbial forensic microbiologist will be to bridge those communication gaps and clear the validation hurdles of the different disciplines discussed above. Failure to do so could result in the diminishing utility of microbial forensics data in policymaking. Such failure could lead to a misunderstanding or misinterpretation of the science behind microbial forensics data by policymakers that, in turn, could lead to the elevation of certain bits of data that may not be dispositive to the real issues at hand. Conversely, misunderstandings and miscommunications could cause policymakers to ignore the importance of certain microbial forensics findings. Either of these scenarios would inevitably spawn poor policy decisions. In this chapter, much attention is given to legal procedural and evidentiary requirements. While the policy is not as structured as the law, policymaking is often rooted in law, and more importantly, legal culture. Therefore, legal standards of proof are informative to an attribution determination but not always a dispositive factor. In most foreseeable scenarios, acceptance and validation of microbial forensics data, analysis, and findings will not take place in the courtroom. In fact, the sufficiency of microbial forensics data in any given biological incident will more likely be judged in the court of public opinion where politics, race, religion, socioeconomic status, education level, and other predetermined biases will also factor into the policymaking process. In the policy environment, microbial forensics data is part of a larger mosaic of evidence to be considered by senior policymakers in taking responsive action. This is not only true in a U.S. domestic context, but also an international one as well. When such legal or policy decisions impact transnational or international constituencies (such as putting restrictions on transportation, finance, and agricultural businesses), the level of attribution complexity dramatically increases and will affect the relevance of microbial forensic data and findings supporting it. Finally, it should be noted
that microbial forensics data may not only be helpful in attributing the source or cause a biological incident but, just as importantly, can be used to exonerate an alleged perpetrator(s) of a biological incident or threat.
Microbial forensics in a policy context In thinking about microbial forensics in a policy context, it is important to look at the drivers of that strategy, how others will respond, and what other considerations may factor into the discussion.
Historical drivers Biological attacks have existed as far back as the Greek empire; launching dead animals into camps and poisoning water sources have occurred throughout history (Strassler, 2008). More recently, in the fall of 2001, the United States experienced the challenges in attributing the source and cause of a biological incident involving Bacillus anthracis, the agent of anthrax (Amerithrax or Anthrax Investigation). In response, the United States reportedly spent over $60 billion dollars on biodefense, a portion of which was spent on the development of the microbial forensics capability with the idea that it was an important component of attribution and possibly helpful in providing early warning of an impending attack (Hayden, 2011). Furthermore, the Federal Bureau of Investigation (FBI) spent 7 years,600,000 investigator hours, established a special task force, and consulted 29 universities for scientific and technical support in the investigation of the 2001 anthrax mailings. However, a review of the evidence by the National Research Council concluded that it was “not possible to reach a definitive conclusion about the origins of the B. (Bacillus) anthracis in the mailings based on the available scientific evidence alone” (National Research Council, 2011). Of course, the FBI’s case did not rely exclusively on scientific evidence, and there
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have been many advances in the science behind microbial forensics since then.
Current U.S. Strategy Despite the above-referenced expenditures and investments, the 2009 National Strategy for Countering Biological Threats (NSCBT) concedes that it is “quite possible” the United States will not obtain the information needed to respond in time to stop an impending attack (U.S. National Security Council, 2009). Given the limitations of prevention, one important means of reducing overall vulnerability to biological attacks is by improving responses when they occur and ensuring that those who are responsible are held accountable. The NSCBT highlights the importance of enhancing microbial forensics and attribution capabilities to generate “scientifically sound and statistically defensible” information that links a biological attack to its perpetrator(s) (NSCBT). To that end, the National Research and Development Strategy for Microbial Forensics aims to develop a microbial forensics research agenda; promote interagency communication, coordination, and information sharing on research and development efforts; and enhance interagency education and training on microbial forensics and related topics (National Science and Technology Council, 2009). These efforts build on nearly $200 million of investments made by the National Science Foundation in microbial forensic research since 2000 (National Science Foundation, 2013). Thus, in terms of U.S. government policy, microbial forensics is a vital component of attribution determination, which, in turn, creates the basis for retribution, which is the sine qua non of deterrence.
International considerations The laudable goals set forth in the NSCBT comprise a robust and ambitious national
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strategy. However, an equally robust and ambitious international strategy for microbial forensics will help ensure that the “scientifically sound and statistically defensible” determinations yielded thereof will persuade audiences abroad to take action in support of a U.S. attribution determinationdor be a willing participant in an investigation to attribute a cause. An example of how this might work can be found in the recent chemical attacks in Syria. Although it involved chemical weapons use, the lessons learned from that event also apply to biological attribution. In the Syria case, scientific data and other technical evidence establishing chemical weapons use were instrumental in generating international momentum to remove chemical weapons from the country and to compel the Syrian government to sign the Chemical Weapons Convention (CWC) (Gladstone and Chivers, 2011). While the question of whether or not chemical weapons were used has mostly been settled, disputes persist as to who used them: the government forces or rebel groups (Gutterman and Holmes, 2013). In the case of biological attacks, similar attribution challenges can significantly hamper efforts to hold parties accountable and develop fast and effective international responses. In addition to the technical challenges inherent in gathering and analyzing data, the microbial forensics field also faces practical challenges in communicating results that may be as difficult to overcome. Even assuming that the microbial forensics reaches the level of general acceptance as other forms of DNA forensic science, turning the data it yields into actionable knowledge for policymakers and public officials requires consideration as to how others will interpret it. Nuanced and logically sound methodologies have been proposed for synthesizing various scientific information, intelligence, and open-source reporting to confirm or disprove accusations of WMD use, including biological weapons (Katz and Singer, 2007). The usefulness of microbial forensics to attribute the biological attack to a
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suspect nation, group, or person will largely be a function of the degree to which international partners understand the science and regard the information it yields as credible. Without doubt, geopolitics will play a role in shaping the responses of various foreign leaders to another nation’s claims about possible biological weapons use and matters pertaining to culpability. In addition, social and cultural factors play a role in how political leaders, public health professionals, the media, and the public writ-large will react to scientific information and what amount of evidence they deem sufficient enough to attribute a biological attack to any man-made cause and, by extension, any particular nation, group, or individual. However, microbial forensics could serve to discredit in quick fashion false accusations that a naturally occurring disease was the result of an intentional act by humans. Either way, epidemiology, and microbial forensics play a pivotal role in guiding policymakers on what to do in the wake of a biological incident. But it should not be taken for granted that they will accept this evidence at face value.
Microbial forensics in an international decision-making process The range of possible actions that any government may take in response to a suspected biological incident is varied. For example, relying solely on scientific or legalistic proof may not be enough to woo international partners into a coalition or convince others not to interfere with any government’s policy. The degree of attribution proof required for a government to produce the desired action by another sovereign nation can be scaled against the difficulty of the action requested. The firmer the requested action, the more attribution proof is needed. In addition, the strength of the relationship between the involved governments will affect the amount of proof required. Examples of difficult requests that government leaders are faced
with are detailed below (roughly in descending order of difficulty): 1. Persuading another sovereign nation (friendly or neutral) to join in taking military action; 2. Persuading another sovereign nation (friendly, unfriendly, or neutral) to take domestic police actions (e.g., the arrest of one of its own citizens); 3. Persuading another sovereign nation (friendly, unfriendly, or neutral) to change its behavior; 4. Persuading another sovereign nation (friendly, unfriendly, or neutral) not to interfere with the U.S. Government’s or another nation’s military actions; 5. Gaining another sovereign nation’s (friendly or neutral) support for political action or sanctions; and 6. Asking another sovereign nation (friendly, unfriendly, or neutral) to take domestic regulatory actions. An example of how to interpret this matrix can be explained as follows: a particular government’s request to another government to join in military action against a third nation will require a higher degree of attribution proof supporting that request than would be required if the request was to simply update domestic laws to ensure better levels of biosecurity and biosafety. For either type of request, it is much easier to request that a long-term ally join in a military coalition or update its regulatory laws than would be the case with a nonally.
Competing timelines The timelines under which microbial forensic science processes evidence are not well aligned with those of the policymaking, traditional media, social media, crisis response, and retribution communities’ timelines. This is especially true once a suspected biological incident starts being actively covered by the press, speeding
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up the timeline for making effective policy decisions. Policy officials will cry out for immediate certainty as to cause, while forensic science may only offer likelihoods or probabilities (especially in the beginning stages of a suspected biological attack or developing threat). At the same time, medical professionals and first responders need to quickly understand the nature of the problem in order to take remedial action. Unfortunately, it can take a long time to establish this scientifically. Simultaneously, intelligence and law enforcement officials need to know quickly whether the introduction of the offending biological agent was indeed deliberate so that they may catch the perpetrators and, more importantly, take action to prevent future attacks. Meanwhile, media outlets are likely to report on the story as soon as it comes to their attention and to stay ahead of it with “breaking news.” Professional reporters and citizen journalists alike may be content with describing the outbreak as “potentially” the result of a deliberate act as they file their reporting or poststories on social media. The speed at which this occurs is breathtaking. From the early days of televised journalism that established the 24-hour news cycle to the introduction of continuous-coverage news channels, such as CNN, which compressed the cycle down to 24 min, and the advent of Twitter allows for a story or information to be spread around the world to millions of people in less than 24 s. When information pointing to a deliberately caused disease outbreak is sparse or conflicting, the mere possibility of a biological attack will have resonance with the media and likely gain rapid traction. Åsa Boholm, writing on the politicization of public health issues, explains that: For the media, the narrative dramaturgical structure is crucial: there must be a story to be told about intentions and motives, victims, villains, and heroes, all staged in a specific setting. Human consequences are spelled out, and so are meanings and emotions. Issues of blame, responsibility, and trust are topical and are intermingled with questions about causation and
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speculations on plausible effects. Some episodes even develop a force to structure the interpretation of new events. Boholm (2003)
The “competing timelines” among the media, health professionals, and public officials will complicate efforts to inform the public narrative in the wake of a possible biological attack. Given the speed at which a story about a possible biological incident is transmitted, it is likely that the initial response of suggestions by policymakers will not be based on microbial forensic evidence. The only exception to this possibility is if the microbial forensics community can quickly present evidence that the narrative currently being spread is scientifically unsound or easily disproved through initial analysis. Positively attributing the source or cause of a biological incident through a microbial forensics process would simply take too much time. Following a suspicious disease outbreak, determining that a villain exists can be difficult; ascertaining his/her identity is even harder. Competing accusations of responsibility will come early and often, especially if the attack occurs as an extension of an existing conflict. Conflict areas, in particular, attract professional journalists as well the attention of independent journalists and bloggers worldwidedneither of whom will be left in want of data sources (accurate and inaccurate) for long. On-the-ground citizen reporting via social media has dramatically transformed the information-gathering environment from places once shrouded by the “fog of war” into a “fog of information surplus” (Varghese, 2013). While the mass democratization of reporting power can help “ground truth,” it also fuels the generation of inaccurate or only partially accurate media narratives which can box in policymakers and public officials into issuing public statements and making decisions about how to respond before facts, including microbial forensics evidence data, are available. Although medical and scientific information
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will help establish a basis for appraisal of a biological incident, subjective “epidemiologic judgment” will also play a significant role in determining what constitutes an “unusual” disease outbreak (Treadwell et al., 2003). Consequently, the United States should prepare for disagreements among scientists (domestic and more problematically foreign), especially during the early stages of investigation into a possible biological incident. Even if an unusual virus strain is found among a group of people afflicted by illness, public health professionals still need to conduct some level of laboratory analysis before attributing causation. This could take days, if not weeks, and yet the judgments of various professionals, versed in different disciplines, may not, and likely will not, be unanimous. In fact, microbial forensic scientists responding to an incident will likely be more conservative than others, including political leaders, in their judgments about probable causes of a biological incident, and attribution thereof, to a deliberate act by a particular actor. The challenge is that political leaders need to get information out to the public quickly despite having very little in the way of concrete facts with which to judge the root cause of the incident at hand. Moreover, the strength of any epidemiologic or forensic evidence of a biological attack will not be weighed by policymakers or the public in a vacuum; it will be weighed against the strength of whatever evidence suggests an alternative explanation. In the ungoverned court of public opinion, trying to “chip away” at an alternative, more benign hypotheses circulating in the public narrative by raising the specter of bioterrorism might backfire when the evidence is not yet conclusive or not as strong as that which supports alternative explanations. Conversely, downplaying concerns about terrorism could have the same discrediting effect (Mckenzie et al., 2002). One way to counter some of the phenomenon described above is to have federal, state, and
local governments participate in training and scenario-based exercises. Knowing what can and cannot be done quickly in the event of a biological incident will help ease the confusion and sense of panic that can be expected to occur during such an occurrence.
Microbial forensics in a legal context In using microbial forensics data and analysis, both admissibility and sufficiency requirements must be met if the data are to be utilized in a legal proceeding related to a biological incident involving either individual perpetrators, groups, or nation-states. In U.S. courts, the process is twofold. First, there is the challenge of getting a presiding trial judge to allow microbial forensics data and analysis to be admitted as evidence in a legal proceeding. Second, the trier of fact (either a judge or a jury) must find the admitted microbial forensic evidence relevant and compelling. As opposed to the contested and adversarial approach to the use of experts in U.S. courts, in many foreign courts and international tribunals, a judge (or judges), consulting with his/her scientific experts, will determine both the admissibility of microbial forensic evidence and how compelling and/or relevant that evidence is. Because biological incidents can have a suspected element or connection with foreign countries, it is important to understand the nuances between different legal systems throughout the world in order to determine how best to utilize and present microbial forensics data and analysis. Finally, in U.S. courts, the legal standard for the use of microbial forensic evidence could vary depending on whether the evidence is being offered in a criminal or civil case. The standard of proof that the trier of fact would apply in a civil proceeding is “more likely than not.” However, the standard of proof in a criminal proceeding is a much higher hurdle: “beyond reasonable doubt.” If a plaintiff’s or prosecutor’s case requires microbial forensic evidence as a
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necessary element of proof in support of a particular cause of action, then the microbial forensics evidence presented must meet the respective civil or criminal proof standard.
Admissibility Before any evidence can be considered by the trier of fact (judge or jury) it must be admitted into evidence. The test for admissibility of any scientific evidence varies between federal courts and some state courts. The standards have also evolved over time. The legal test for admissibility of expert scientific testimony, beginning in 1923, involving novel techniques was the “general acceptance” standard established by the Supreme Court in Frye v. United States (Frye v, 1923). In this case, the court ruled that: (i) expert testimony deduced from a wellrecognized scientific principle or discovery will often be admitted, but (ii) that from which the deduction is made must be sufficiently established to have gained “general acceptance in the particular field to which it belongs.” In other words, microbial forensics experts’ opinions must be supported by what others in the field accepted as established knowledge. Fifty years later, Congress promulgated the new Federal Rules of Evidence (FRE) in 1975, which remains today as the authority on the admission of evidence in federal courts. Under current federal rules, if an expert scientific witness testifies as to the validity of a novel scientific technique, it must first be proven to the judge that: (i) the expert witness can, in fact, be qualified as an expert, and (ii) any such testimony by the expert scientific evidence is relevant to the case, as specified by FRE 104(a) and 104(b). Once qualified as an expert, a judge then determines under FRE 702 whether “the
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testimony is based on sufficient facts or data, the testimony is a product of reliable principles or methods, and the witness has applied the principles and methods reliably to the facts of the case.” Next, the judge determines whether “the facts or data underlying the expert testimony are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, as required by FRE 703.” In addition, as addressed earlier, the judge assesses the expert’s testimony to ensure that there is “a foundational process showing that a scientific process or system produces an accurate result,” as required by FRE 901. Finally, FRE 403 states that even if a judge finds an expert’s testimony to be reliable, the judge may exclude it from evidence if its likely prejudicial effect outweighs its probative value. It is only after clearing these evidentiary and procedural issues that the scientific evidence can be presented to the jury or trier of fact (Murch and Bahr, 2010). After the FRE were adopted, there was some confusion in U.S. courts as to whether these new federal rules or Frye governed the admissibility of scientific evidence. In 1993, the Supreme Court clarified this confusion in Daubert v. Merrell Dow Pharmaceuticals (Daubert, 1993). The court recognized that, given the often-rapid advances being made in science, new discoveries and theories might be perfectly sound but still be new enough that they had not yet gained “general acceptance,” as mandated by the Frye standard. The Daubert Court held that FRE Rule 702 controlled the admission of expert testimony in federal courts and that, when applying Rule 702, a “trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable” (Daubert, 1993). The merits of scientific validation play a significant role in the Daubert test. The Daubert court “directed federal judges to take a scientific approach to the admissibility of scientific evidence” (Harv. L. Rev, 1995) and insisted that in order for scientific evidence to be legally reliable,
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it must be found to be scientifically reliable. The framework for analyzing the admissibility of scientific evidence under the Daubert test consists of five basic elements: • whether a method can or has been tested; • the known or potential rate of error; • whether the methods have been subjected to peer review; • whether there are standards controlling the technique’s operation; and, • the general acceptance of the method within the relevant community. In other words, “[f]or scientific testimony to be sufficiently reliable, it must be derived by the scientific method and must be supported by appropriate validation” (Perry, 2008). Daubert recognized that reliability and validity differ as scientific measures. Whereas validity describes how well the scientific method reasons to its conclusion, reliability describes the ability of the scientific method to produce consistent results when replicated (Harv. L. Rev, 1995). Therefore, the robust validationdper scientific standardsdof any novel scientific technique will be the prerequisite showing for the eventual acceptance and validation of that science by the state and federal courts that follow the Daubert test (Kumho Tire Co. v. Carmichael, 1999). If a scientific technique has been shown to meet the reliability threshold, a judge then determines whether the scientific evidence is also relevantdthe second part of the Daubert test. The relevancy prong requires that judges examine “the proffered connection between the scientific research or test result to be presented, and particular disputed factual issues in the case.” Therefore, the evidentiary reliability of future forensic microbiology evidence submitted to U.S. courts following the Daubert test will turn on whether it has been shown to be validated scientifically by showing that the science supporting the evidence is both (i) relevantdassisting the trier of fact in understanding or determining the pertinent factsdand (ii) reliabledits methodology is based on scientific knowledge (Harv. L. Rev, 1995).
However, not all state courts have adopted the Daubert test. The U.S. Supreme Court’s decision in Daubert was based on the language of FRE 702 and therefore was not grounded in a constitutional right mandating adoption by the states. As of 2017, 39 states have affirmatively adopted Daubert or a similar test for use in their courts or had previously abandoned Frye and had developed a similar test. Eight states continue to adhere to the “general acceptance test” of Frye. Additionally, three states have not completely rejected the Frye standard, or adopted the Daubert factors (The expertinstitute). Whether forensic microbiology evidence is found to be legally admissible by a court or not would first depend on if the court in question has adopted the Frye standard, the Daubert standard, or its own unique admissibility standard. However, any forensic microbiology evidencedat a minimumdmust be shown to be either generally accepted by the relevant scientific community or validated based on reliable scientific techniques and relevant to the case at hand (Klein, 1991).
Case precedent Although the specific question of admissibility of microbial forensic evidence has yet to be tested in a U.S. court, other contemporary cases involving the validation of scientific evidence could give clues as to how courts might handle the submission of such evidence in a criminal prosecution for the use or threatened use of biological weapons. The most relevant of which would be State v. Schmid (State v. Schmidt, 1997), where genome-based phylogenetic analysis of blood samples was used to determine whether a doctor infected his lover with the HIV-infected blood from one of his other patients. After hearing the testimony of multiple expert witnesses, the court held that the phylogenetic analysis techniques used to analyze the samples were sufficiently validated to allow this particular type of genome-based forensic analysis into evidence. In this case, the combination of rigorous scientific validation of submitted
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genome-based evidence and adequate expert testimony regarding the results of this evidence analysis were sufficient for the court to hold the evidence reliable and relevant, as required by Daubert and the rules of evidence adopted by the Louisiana legislature.
Microbial forensics evidence in comparison to other forensic disciplines (Bidwell and Bhatt, 2016) While the use of microbial forensic evidence in U.S. courts has not explicitly been permitted, the strength and accuracy of the forensic DNA analysis have improved to the point, where it has actually been used to exonerate people who had been convicted based on the conclusions from other, less reliable forensic techniques. Harry T. Edwards, a U.S. federal appellate court judge and cochair of the committee that authored the 2009 National Academies of Sciences report, argued that “DNA is really the only discipline among the forensic disciplines that consistently produces results that you can rely on with a fair level of confidence when you’re seeking to determine whether or not a piece of evidence is connected with a particular source” (Jones, 2012). Given these more recent revelations and advances in understanding, DNA evidence has become preferential in the courtroom. The good news is that current microbial forensic techniques are based on many well-established DNA identification techniques. As a result, its reliability may be perceived as similar to that of DNA evidence. However, the uncertainty associated with microbes, their biology, and how they relate to and impact identification and relevance to source attribution must be communicated so that a decision-maker understands the limits of what science can state and how it should be interpreted. Microbial forensic research is saddled with the explicit task of precisely linking the microbes found at a scene to the microbes at a source
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based on unique and identifiable patterns of genetic polymorphisms. Similar to human DNA analysis, microbial forensic practitioners highlight particular loci at which individual strains among larger families of infectious agents differ in nucleotide sequence and use that information to infer common identity and/or lineage. This can be a key element in establishing a connection between the source of a biological weapon attack or biological outbreak event and its perpetrator(s) or cause. In 2011, a Department of Justice report described the use of microbial forensics in the following way: Unlike human forensic analysis, disease-causing microbial pathogens of humans exhibit remarkable genomic diversity generated through a number of elaborate mechanisms, including high mutation and recombination rates, as well as diverse responses to selection. One major goal of microbial forensics is to use this genetic diversity to identify the source of a pathogen used to commit a crime. Kshatriya et al. (2014).
Thus, microbial forensics is a rapidly evolving tool for identifying pathogenic transmission routes, and its underlying scientific processes have been improving as more research is done to strengthen its role as an attribution tool. Unfortunately, there are headwinds with regards to the general notion of using many forms of forensic evidence in the courtroom. The use of forensic evidence in the courtroom has only gained general acceptance in the last 100 years when the concept of matching fingerprints was first used in a criminal trial. Since then, myriad forensic sciences all based upon the idea of matching samples have come into being, including hair analysis, carpet-fiber analysis, bite-mark analysis, shoeprint analysis, and blood-splatter analysis. Laboratories that analyze these phenomena have varying degrees of acceptance and legitimacy. In the recent past, many scandals regarding shoddy work products from some of these laboratories and practices have caught the attention of the popular press and the consciousness of the public. In many
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courtroom cases, subject matter experts will argue about the meaning of a particular match. If the experts are arguing, the question then becomes: Is forensic science really science (Kshatriya et al., 2014)? However, this is less of a problem regarding DNA forensics, which, fortunately, has similar processes as microbial forensics.
Basis for challenges Even if a particular scientific method or certain forensic evidence is verifiable by the scientific community, both judge and jury in each case have the discretion to conclude that a novel scientific technique has not been sufficiently validated. Thus, the ultimate reliance of a novel scientific technique and its results is only as strong as the credence in each court for each case, even if similar evidence has been heard in courts elsewhere. Opposing counsel could directly or indirectly attack the credibility of any forensic microbiology offered up as evidence in many ways. For example, an opposing counsel could question the professional qualifications of the expert witness who is to testify in support of the technique, thus attempting to disqualify the witness. Additionally, opposing counsel while not questioning the expert’s findings, could challenge the conclusions drawn based upon external issues, such as contamination of the collection site before the experts arrived on the scene. Here, the testimony of opposing experts or advice to counsel for crossexamination of prosecution experts can be most useful. If the opposing counsel can reduce or eliminate the value, weight, and/or credibility of the scientific evidence or the expert presenting the information, then the jury or judge could find that the prosecution could no longer meet its burden of proving culpability “beyond a reasonable doubt.” In presenting the results of any microbial forensic analysis in the courtroom, or the court of public opinion, the sources and methods used to back up that analysis will need to be
presented in intricate detail. This could present a particular problem for government-sponsored analysis which may have been wholly or partly classified. Failure to document and present all of the procedures, methodologies, samples taken (including where, what, how, and by whom), and confirmation practices will, at best, give opposing counsel or public commentators ample means by which to cast doubt on the findings. In the worst case, such failure may lead a judge rule the evidence is not admissible under FRE 903 or under Daubert.
The CSI effect Today, popular portrayals of forensic science can fuel both its expectations and conflation with empirical science. Forensic science is often understood as strong evidence in courtroom settings, but in reality, many recent events and federal reports cast doubt on its objectivity. The expectations of forensic science capabilities stem from confusions with empirical science, a phenomenon of high expectations and confidence in forensics that some legal observers and media accounts have dubbed the “CSI effect” (Rath, 2011). The “CSI effect” is a reference to a popular American TV show wherein criminal investigators use the latest science (or science that is currently in development) to solve a complex crime. The show often promotes fanciful notions of scientific certitude as the show’s writers attempt to compress difficult scientific and procedural concepts into a few scenes carved into a less than 1-hour television show. Left out are the many nuances typically associated with the techniques (e.g., the time it takes to gather and process evidence, the cost of such investigations, and/or the financial resources available to conduct such an expensive inquiry). The “CSI effect” has become very influential, especially for those whose introductions to complex science come primarily from mass media. Courtroom
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lawyers and judges have complained in recent years that juries have come to expect an exactness, certainty, and conclusiveness in scientific evidence that is unobtainable in the real world. In a policy context, the “CSI effect” can influence leaders (whom a government may wish to sway) into similar thinking regarding unrealistic expectations concerning evidence presented to them. This can then make the use of technical analysis, such as that associated with microbial forensics, a difficult sell. On the other hand, government officials themselves may expect too much from forensic science, causing them to discount solid forensic evidence that is helpful to, but not comprehensively supportive of, policy objectives “letting the perfect be the enemy of the good.”
Chain of custody issues The issue of keeping a reliable proper chain of custody is of paramount concern, not just in criminal cases, but in the international context of attribution. It is the most likely avenue of attack by those who would question an attribution claim. In looking at a chain of custody, it is vital that each step or activity in the chain is properly documented and recorded, including: (i) Development of, and adherence to, a reliable sampling protocol (sizes, location, and method of collection used to obtain samples); (ii) Collection of the samples; (iii) Transportation of samples to the lab for analysis; (iv) Preparation of samples for comparative analysis; and (v) The validity, history, chain of custody, and reliability of samples at the lab used for comparison with acquired field samples (Budowle et al., 2011). Any gaps or inconsistencies in the chain of custody would almost ensure that any microbial
forensic data and analysis would not be considered as valid evidence in a U.S. court, international court, or even the “court” of public opinion.
Conclusion Use of microbial forensics in policy or legal contexts may be on the upswing, but its use by decision-makers cannot be assured given its relative youth as forensic science, and perceived reliability. In any given biological incident, the microbial forensic expert will be one voice in a crowd of many. It is important that practitioners in this field endeavor to communicate their findings to multiple audiences in clear and understandable language and fit it into policy and legal decision frameworks. Certainly, the stakes for the application of probative, properly validated science can be crucial when an accused’s civil liberties are at stake when a successful prosecution, or a wrongful conviction, may result. We posit that the stakes are even higher if such science were to be applied to an actual or suspected event of transnational or global importance with its myriad considerations, potential outcomes, and effects. Across the spectrum and scale of biocrime, bioterrorism, biowarfare, and bioproliferation events that could present themselves, the decisions associated thereof will be informed by science to lesser or greater degrees. Ultimately, how legal and policy influencers and decision-makers understand, perceive, treat, assign value, and rely upon science will dictate the contribution that science has and what its role will be in the outcome.
References Amerithrax or Anthrax Investigation.” Federal Bureau of Investigation. https://www.fbi.gov/history/famouscases/amerithrax-or-anthrax-investigation.
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Bidwell, C.A., Bhatt, K., 2016. Use of Attribution and Forensic Science in Addressing Biological Weapon Threats: A Multi-Faceted Study. Federation of American Scientists. Boholm, Å., 2003. The cultural nature of risk: can there be an anthropology of uncertainty? Ethnos 68 (2), 173. Budowle, B., Schultzer, S., Breeze, R., Keim, P., Morse, S., 2011. Microbial Forensics, second ed. Academic Press, Burlington, MA. Daubert, v, 1993. Merrell Dow Pharmaceuticals, 509 U.S. 579. Frye v., 1923. United States, 293 F. 1013 (D.C. Cir. 1923). Gladstone, R., Chivers, C.J., October 31, 2011. Forensic details in U.N. report point to Assad’s use of gas. N. Y. Times. http://www.nytimes.com/2013/11/01/world/ middleeast/syria.html. Gutterman, S., Holmes, O., September 18, 2013. Russia Says U.N. Report on Syria Attack Biased. Reuters. http:// www.reuters.com/article/2013/09/18/us-syria-crisisrussia-idUSBRE98H0RQ20130918?irpc¼932. Confronting the new challenges of scientific evidence. Harv. Law Rev. 108, 1995, 1481e1485. Hayden, E.C., 2011. Biodefense since 9/11: the price of protection. Nature 477, 150e152. http://www.nature. com/news/2011/110907/full/477150a.html. Jones, J., April 17, 2012. Forensic Tools: What’s Reliable and What’s Not-So-Scientific. PBS Frontline. http://www. pbs.org/wgbh/pages/frontline/criminal-justice/realcsi/forensic-tools-whats-reliable-and-whats-not-soscientific. See: Katz, R., Singer, B., 2007. Can an attribution assessment be made for yellow rain? systematic reanalysis in a chemical-and-biological-weapons use investigation Politics Life Sci. 26 (1), 24e42. Katz’s methodology assesses the reliability of each source of information (scientific information, intelligence, and open-source reporting) in combination with the strength of its association with a deliberate WMD attack as opposed to alternative explanations. Klein, D.A., 1991. Reliability of Scientific Technique and its Acceptance within Scientific Community as Affecting Admissibility, 105 A.L.R. Fed. 299. Kshatriya, P., Doyle, V., Nelson, B.J., Qin, X., Anderson, J., Brown, J.M., Metzker, M.L., 2014. Progress towards Developing the Pathogen Tool Kit. https://www.ncjrs. gov/pdffiles1/nij/grants/246954.pdf. Kumho Tire Co. v. Carmichael, 1999. 526 U.S. 137. This “weak evidence” effect has been studied among jurors, who tend to interpret evidence that does not meet the “minimum acceptable standard” of convincingness set previously by the other side as further proof that the other
side indeed had it right. See: Mckenzie, C.R., Lee, S.M., Chen, K.K., 2002. When negative evidence increases confidence: change in belief after hearing two sides of a dispute J. Behav. Decis. Mak. 15 (1), 14. Murch, R.S., Bahr, E.L., 2010. Validation of microbial forensics in scientific, legal, and policy contexts. In: Budowle, B., Schutzer, S.E., Breeze, R.G., Keim, P.S., Morse, S.A. (Eds.), Microbial Forensics, second ed. Elsevier, pp. 649e662. 2010. National Research Council, 2011. Review of the Scientific Approaches Used during the FBI’s Investigation of the 2001 Anthrax Letters. The National Academies Press, ” Washington, DC, p. 144. National Science and Technology Council, 2009. National Research and Development Strategy for Microbial Forensics. The White House, ” Washington, DC, p. 3. National Science Foundation, 2013. FY2013 Homeland Security Activities Budget Request. http://www.nsf.gov/ about/budget/fy2013/pdf/09_fy2013.pdf. Specifically, the NSCBT Calls for Establishing a Nationwide Research, Development, and Investment Plan in Microbial Forensic Science; Maintaining a National Biological Forensics Analysis Center to Support Local Law Enforcement Agencies; and Ensuring Coordination Among Professionals in Public Health, Law Enforcement, and Agriculture. Perry, v, 2008. Novartis Pharmaceuticals Corp, 564 F. Supp. 2d 452. Rath, A., February 5, 2011. Is the ‘CSI Effect’ Influencing Courtrooms? Frontline PBS. http://www.npr.org/ 2011/02/06/133497696/is-the-csi-effect-influencingcourtrooms. State v. Schmidt, 1997. 699 So. 2d 448. Strassler, R.B., 2008. The Landmark Thucydides: A Comprehensive Guide to the Peloponnesian Wars. Simon & Schuster, New York, NY. https://www.theexpertinstitute.com/daubert-v-frye-astate-by-state-comparison/. Treadwell, T., Koo, D., Kuker, K., Khan, A., 2003. Epidemiologic clues to bioterrorism. Public Health Rep. 118, 18. http://www.ncbi.nlm.nih.gov/pmc/articles/ PMC1497515/. U.S. National Security Council, 2009. National Strategy for Countering Biological Threats. The White House, ” Washington, DC, p. 2. Varghese, A., 2013. Social Media and the Syrian Civil War. Peace Brief 151. United States Institute of Peace. http:// www.usip.org/sites/default/files/PB-151.pdf.
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26 Use of microbial forensics data in scientific, legal, and policy contexts Christopher A. Bidwell1, Randall Murch2 1
Federation of American Scientists, Washington, DC, United States; 2Virginia Polytechnic Institute and State University, Arlington, VA, United States
Introduction In policy and legal contexts surrounding any biological incident or allegation, microbial forensics should be seen both for its investigatory value (determining what happened, what is happening, or what could soon happen) and its attribution value (determining if whatever did happen was the result of intentional malfeasance, an accident, or a naturally occurring phenomenon). These are the first two questions that the ultimate policymaker wants to be answered so that they can address the quintessential question: What to do about it? If a policymaker wishes to utilize microbial forensic data to answer these questions, that data must fit into a known and reliable decision-making framework. More often than not, that framework will be grounded in the logic and reasoning of the law and its associated procedural and evidentiary requirements, regardless of whether any legal or courtroom proceedings result from a given biological incident or allegation. In making decisions, microbial forensics analysis will not be dispositive in and of itself but should be combined with other relevant
Microbial Forensics, Third Edition https://doi.org/10.1016/B978-0-12-815379-6.00026-X
analysis and circumstantial evidence. To the extent that microbial forensics data can be explained in relation to these other factors, it will more likely be useful in the policymaking process. In addition to legal frameworks, technical microbial forensics data will also be viewed through cultural, religious, professional, and generational lenses. In other words, useful microbial forensics data must not only pass significant scientific and technical validation hurdles, but several additional disassociated hurdles as well. Failure to clear any one of these additional hurdles could make scientifically valid microbial forensic analysis irrelevant to (or ignored by) those charged with making policy judgments. Another challenge for the forensic microbiologist will be one of effective communication as the legal, law enforcement, religious, media, political, diplomatic, emergency response, and medical disciplines each have their language, professional norms, idiosyncrasies, and decision-making time cycles. These different characteristics can sometimes inhibit clear interdisciplinary communication that is necessary for creating sound policy decisions that would utilize microbial forensics
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data. The burden on the microbial forensic microbiologist will be to bridge those communication gaps and clear the validation hurdles of the different disciplines discussed above. Failure to do so could result in the diminishing utility of microbial forensics data in policymaking. Such failure could lead to a misunderstanding or misinterpretation of the science behind microbial forensics data by policymakers that, in turn, could lead to the elevation of certain bits of data that may not be dispositive to the real issues at hand. Conversely, misunderstandings and miscommunications could cause policymakers to ignore the importance of certain microbial forensics findings. Either of these scenarios would inevitably spawn poor policy decisions. In this chapter, much attention is given to legal procedural and evidentiary requirements. While the policy is not as structured as the law, policymaking is often rooted in law, and more importantly, legal culture. Therefore, legal standards of proof are informative to an attribution determination but not always a dispositive factor. In most foreseeable scenarios, acceptance and validation of microbial forensics data, analysis, and findings will not take place in the courtroom. In fact, the sufficiency of microbial forensics data in any given biological incident will more likely be judged in the court of public opinion where politics, race, religion, socioeconomic status, education level, and other predetermined biases will also factor into the policymaking process. In the policy environment, microbial forensics data is part of a larger mosaic of evidence to be considered by senior policymakers in taking responsive action. This is not only true in a U.S. domestic context, but also an international one as well. When such legal or policy decisions impact transnational or international constituencies (such as putting restrictions on transportation, finance, and agricultural businesses), the level of attribution complexity dramatically increases and will affect the relevance of microbial forensic data and findings supporting it. Finally, it should be noted
that microbial forensics data may not only be helpful in attributing the source or cause a biological incident but, just as importantly, can be used to exonerate an alleged perpetrator(s) of a biological incident or threat.
Microbial forensics in a policy context In thinking about microbial forensics in a policy context, it is important to look at the drivers of that strategy, how others will respond, and what other considerations may factor into the discussion.
Historical drivers Biological attacks have existed as far back as the Greek empire; launching dead animals into camps and poisoning water sources have occurred throughout history (Strassler, 2008). More recently, in the fall of 2001, the United States experienced the challenges in attributing the source and cause of a biological incident involving Bacillus anthracis, the agent of anthrax (Amerithrax or Anthrax Investigation). In response, the United States reportedly spent over $60 billion dollars on biodefense, a portion of which was spent on the development of the microbial forensics capability with the idea that it was an important component of attribution and possibly helpful in providing early warning of an impending attack (Hayden, 2011). Furthermore, the Federal Bureau of Investigation (FBI) spent 7 years,600,000 investigator hours, established a special task force, and consulted 29 universities for scientific and technical support in the investigation of the 2001 anthrax mailings. However, a review of the evidence by the National Research Council concluded that it was “not possible to reach a definitive conclusion about the origins of the B. (Bacillus) anthracis in the mailings based on the available scientific evidence alone” (National Research Council, 2011). Of course, the FBI’s case did not rely exclusively on scientific evidence, and there
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have been many advances in the science behind microbial forensics since then.
Current U.S. Strategy Despite the above-referenced expenditures and investments, the 2009 National Strategy for Countering Biological Threats (NSCBT) concedes that it is “quite possible” the United States will not obtain the information needed to respond in time to stop an impending attack (U.S. National Security Council, 2009). Given the limitations of prevention, one important means of reducing overall vulnerability to biological attacks is by improving responses when they occur and ensuring that those who are responsible are held accountable. The NSCBT highlights the importance of enhancing microbial forensics and attribution capabilities to generate “scientifically sound and statistically defensible” information that links a biological attack to its perpetrator(s) (NSCBT). To that end, the National Research and Development Strategy for Microbial Forensics aims to develop a microbial forensics research agenda; promote interagency communication, coordination, and information sharing on research and development efforts; and enhance interagency education and training on microbial forensics and related topics (National Science and Technology Council, 2009). These efforts build on nearly $200 million of investments made by the National Science Foundation in microbial forensic research since 2000 (National Science Foundation, 2013). Thus, in terms of U.S. government policy, microbial forensics is a vital component of attribution determination, which, in turn, creates the basis for retribution, which is the sine qua non of deterrence.
International considerations The laudable goals set forth in the NSCBT comprise a robust and ambitious national
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strategy. However, an equally robust and ambitious international strategy for microbial forensics will help ensure that the “scientifically sound and statistically defensible” determinations yielded thereof will persuade audiences abroad to take action in support of a U.S. attribution determinationdor be a willing participant in an investigation to attribute a cause. An example of how this might work can be found in the recent chemical attacks in Syria. Although it involved chemical weapons use, the lessons learned from that event also apply to biological attribution. In the Syria case, scientific data and other technical evidence establishing chemical weapons use were instrumental in generating international momentum to remove chemical weapons from the country and to compel the Syrian government to sign the Chemical Weapons Convention (CWC) (Gladstone and Chivers, 2011). While the question of whether or not chemical weapons were used has mostly been settled, disputes persist as to who used them: the government forces or rebel groups (Gutterman and Holmes, 2013). In the case of biological attacks, similar attribution challenges can significantly hamper efforts to hold parties accountable and develop fast and effective international responses. In addition to the technical challenges inherent in gathering and analyzing data, the microbial forensics field also faces practical challenges in communicating results that may be as difficult to overcome. Even assuming that the microbial forensics reaches the level of general acceptance as other forms of DNA forensic science, turning the data it yields into actionable knowledge for policymakers and public officials requires consideration as to how others will interpret it. Nuanced and logically sound methodologies have been proposed for synthesizing various scientific information, intelligence, and open-source reporting to confirm or disprove accusations of WMD use, including biological weapons (Katz and Singer, 2007). The usefulness of microbial forensics to attribute the biological attack to a
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suspect nation, group, or person will largely be a function of the degree to which international partners understand the science and regard the information it yields as credible. Without doubt, geopolitics will play a role in shaping the responses of various foreign leaders to another nation’s claims about possible biological weapons use and matters pertaining to culpability. In addition, social and cultural factors play a role in how political leaders, public health professionals, the media, and the public writ-large will react to scientific information and what amount of evidence they deem sufficient enough to attribute a biological attack to any man-made cause and, by extension, any particular nation, group, or individual. However, microbial forensics could serve to discredit in quick fashion false accusations that a naturally occurring disease was the result of an intentional act by humans. Either way, epidemiology, and microbial forensics play a pivotal role in guiding policymakers on what to do in the wake of a biological incident. But it should not be taken for granted that they will accept this evidence at face value.
Microbial forensics in an international decision-making process The range of possible actions that any government may take in response to a suspected biological incident is varied. For example, relying solely on scientific or legalistic proof may not be enough to woo international partners into a coalition or convince others not to interfere with any government’s policy. The degree of attribution proof required for a government to produce the desired action by another sovereign nation can be scaled against the difficulty of the action requested. The firmer the requested action, the more attribution proof is needed. In addition, the strength of the relationship between the involved governments will affect the amount of proof required. Examples of difficult requests that government leaders are faced
with are detailed below (roughly in descending order of difficulty): 1. Persuading another sovereign nation (friendly or neutral) to join in taking military action; 2. Persuading another sovereign nation (friendly, unfriendly, or neutral) to take domestic police actions (e.g., the arrest of one of its own citizens); 3. Persuading another sovereign nation (friendly, unfriendly, or neutral) to change its behavior; 4. Persuading another sovereign nation (friendly, unfriendly, or neutral) not to interfere with the U.S. Government’s or another nation’s military actions; 5. Gaining another sovereign nation’s (friendly or neutral) support for political action or sanctions; and 6. Asking another sovereign nation (friendly, unfriendly, or neutral) to take domestic regulatory actions. An example of how to interpret this matrix can be explained as follows: a particular government’s request to another government to join in military action against a third nation will require a higher degree of attribution proof supporting that request than would be required if the request was to simply update domestic laws to ensure better levels of biosecurity and biosafety. For either type of request, it is much easier to request that a long-term ally join in a military coalition or update its regulatory laws than would be the case with a nonally.
Competing timelines The timelines under which microbial forensic science processes evidence are not well aligned with those of the policymaking, traditional media, social media, crisis response, and retribution communities’ timelines. This is especially true once a suspected biological incident starts being actively covered by the press, speeding
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up the timeline for making effective policy decisions. Policy officials will cry out for immediate certainty as to cause, while forensic science may only offer likelihoods or probabilities (especially in the beginning stages of a suspected biological attack or developing threat). At the same time, medical professionals and first responders need to quickly understand the nature of the problem in order to take remedial action. Unfortunately, it can take a long time to establish this scientifically. Simultaneously, intelligence and law enforcement officials need to know quickly whether the introduction of the offending biological agent was indeed deliberate so that they may catch the perpetrators and, more importantly, take action to prevent future attacks. Meanwhile, media outlets are likely to report on the story as soon as it comes to their attention and to stay ahead of it with “breaking news.” Professional reporters and citizen journalists alike may be content with describing the outbreak as “potentially” the result of a deliberate act as they file their reporting or poststories on social media. The speed at which this occurs is breathtaking. From the early days of televised journalism that established the 24-hour news cycle to the introduction of continuous-coverage news channels, such as CNN, which compressed the cycle down to 24 min, and the advent of Twitter allows for a story or information to be spread around the world to millions of people in less than 24 s. When information pointing to a deliberately caused disease outbreak is sparse or conflicting, the mere possibility of a biological attack will have resonance with the media and likely gain rapid traction. Åsa Boholm, writing on the politicization of public health issues, explains that: For the media, the narrative dramaturgical structure is crucial: there must be a story to be told about intentions and motives, victims, villains, and heroes, all staged in a specific setting. Human consequences are spelled out, and so are meanings and emotions. Issues of blame, responsibility, and trust are topical and are intermingled with questions about causation and
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speculations on plausible effects. Some episodes even develop a force to structure the interpretation of new events. Boholm (2003)
The “competing timelines” among the media, health professionals, and public officials will complicate efforts to inform the public narrative in the wake of a possible biological attack. Given the speed at which a story about a possible biological incident is transmitted, it is likely that the initial response of suggestions by policymakers will not be based on microbial forensic evidence. The only exception to this possibility is if the microbial forensics community can quickly present evidence that the narrative currently being spread is scientifically unsound or easily disproved through initial analysis. Positively attributing the source or cause of a biological incident through a microbial forensics process would simply take too much time. Following a suspicious disease outbreak, determining that a villain exists can be difficult; ascertaining his/her identity is even harder. Competing accusations of responsibility will come early and often, especially if the attack occurs as an extension of an existing conflict. Conflict areas, in particular, attract professional journalists as well the attention of independent journalists and bloggers worldwidedneither of whom will be left in want of data sources (accurate and inaccurate) for long. On-the-ground citizen reporting via social media has dramatically transformed the information-gathering environment from places once shrouded by the “fog of war” into a “fog of information surplus” (Varghese, 2013). While the mass democratization of reporting power can help “ground truth,” it also fuels the generation of inaccurate or only partially accurate media narratives which can box in policymakers and public officials into issuing public statements and making decisions about how to respond before facts, including microbial forensics evidence data, are available. Although medical and scientific information
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will help establish a basis for appraisal of a biological incident, subjective “epidemiologic judgment” will also play a significant role in determining what constitutes an “unusual” disease outbreak (Treadwell et al., 2003). Consequently, the United States should prepare for disagreements among scientists (domestic and more problematically foreign), especially during the early stages of investigation into a possible biological incident. Even if an unusual virus strain is found among a group of people afflicted by illness, public health professionals still need to conduct some level of laboratory analysis before attributing causation. This could take days, if not weeks, and yet the judgments of various professionals, versed in different disciplines, may not, and likely will not, be unanimous. In fact, microbial forensic scientists responding to an incident will likely be more conservative than others, including political leaders, in their judgments about probable causes of a biological incident, and attribution thereof, to a deliberate act by a particular actor. The challenge is that political leaders need to get information out to the public quickly despite having very little in the way of concrete facts with which to judge the root cause of the incident at hand. Moreover, the strength of any epidemiologic or forensic evidence of a biological attack will not be weighed by policymakers or the public in a vacuum; it will be weighed against the strength of whatever evidence suggests an alternative explanation. In the ungoverned court of public opinion, trying to “chip away” at an alternative, more benign hypotheses circulating in the public narrative by raising the specter of bioterrorism might backfire when the evidence is not yet conclusive or not as strong as that which supports alternative explanations. Conversely, downplaying concerns about terrorism could have the same discrediting effect (Mckenzie et al., 2002). One way to counter some of the phenomenon described above is to have federal, state, and
local governments participate in training and scenario-based exercises. Knowing what can and cannot be done quickly in the event of a biological incident will help ease the confusion and sense of panic that can be expected to occur during such an occurrence.
Microbial forensics in a legal context In using microbial forensics data and analysis, both admissibility and sufficiency requirements must be met if the data are to be utilized in a legal proceeding related to a biological incident involving either individual perpetrators, groups, or nation-states. In U.S. courts, the process is twofold. First, there is the challenge of getting a presiding trial judge to allow microbial forensics data and analysis to be admitted as evidence in a legal proceeding. Second, the trier of fact (either a judge or a jury) must find the admitted microbial forensic evidence relevant and compelling. As opposed to the contested and adversarial approach to the use of experts in U.S. courts, in many foreign courts and international tribunals, a judge (or judges), consulting with his/her scientific experts, will determine both the admissibility of microbial forensic evidence and how compelling and/or relevant that evidence is. Because biological incidents can have a suspected element or connection with foreign countries, it is important to understand the nuances between different legal systems throughout the world in order to determine how best to utilize and present microbial forensics data and analysis. Finally, in U.S. courts, the legal standard for the use of microbial forensic evidence could vary depending on whether the evidence is being offered in a criminal or civil case. The standard of proof that the trier of fact would apply in a civil proceeding is “more likely than not.” However, the standard of proof in a criminal proceeding is a much higher hurdle: “beyond reasonable doubt.” If a plaintiff’s or prosecutor’s case requires microbial forensic evidence as a
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necessary element of proof in support of a particular cause of action, then the microbial forensics evidence presented must meet the respective civil or criminal proof standard.
Admissibility Before any evidence can be considered by the trier of fact (judge or jury) it must be admitted into evidence. The test for admissibility of any scientific evidence varies between federal courts and some state courts. The standards have also evolved over time. The legal test for admissibility of expert scientific testimony, beginning in 1923, involving novel techniques was the “general acceptance” standard established by the Supreme Court in Frye v. United States (Frye v, 1923). In this case, the court ruled that: (i) expert testimony deduced from a wellrecognized scientific principle or discovery will often be admitted, but (ii) that from which the deduction is made must be sufficiently established to have gained “general acceptance in the particular field to which it belongs.” In other words, microbial forensics experts’ opinions must be supported by what others in the field accepted as established knowledge. Fifty years later, Congress promulgated the new Federal Rules of Evidence (FRE) in 1975, which remains today as the authority on the admission of evidence in federal courts. Under current federal rules, if an expert scientific witness testifies as to the validity of a novel scientific technique, it must first be proven to the judge that: (i) the expert witness can, in fact, be qualified as an expert, and (ii) any such testimony by the expert scientific evidence is relevant to the case, as specified by FRE 104(a) and 104(b). Once qualified as an expert, a judge then determines under FRE 702 whether “the
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testimony is based on sufficient facts or data, the testimony is a product of reliable principles or methods, and the witness has applied the principles and methods reliably to the facts of the case.” Next, the judge determines whether “the facts or data underlying the expert testimony are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, as required by FRE 703.” In addition, as addressed earlier, the judge assesses the expert’s testimony to ensure that there is “a foundational process showing that a scientific process or system produces an accurate result,” as required by FRE 901. Finally, FRE 403 states that even if a judge finds an expert’s testimony to be reliable, the judge may exclude it from evidence if its likely prejudicial effect outweighs its probative value. It is only after clearing these evidentiary and procedural issues that the scientific evidence can be presented to the jury or trier of fact (Murch and Bahr, 2010). After the FRE were adopted, there was some confusion in U.S. courts as to whether these new federal rules or Frye governed the admissibility of scientific evidence. In 1993, the Supreme Court clarified this confusion in Daubert v. Merrell Dow Pharmaceuticals (Daubert, 1993). The court recognized that, given the often-rapid advances being made in science, new discoveries and theories might be perfectly sound but still be new enough that they had not yet gained “general acceptance,” as mandated by the Frye standard. The Daubert Court held that FRE Rule 702 controlled the admission of expert testimony in federal courts and that, when applying Rule 702, a “trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable” (Daubert, 1993). The merits of scientific validation play a significant role in the Daubert test. The Daubert court “directed federal judges to take a scientific approach to the admissibility of scientific evidence” (Harv. L. Rev, 1995) and insisted that in order for scientific evidence to be legally reliable,
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it must be found to be scientifically reliable. The framework for analyzing the admissibility of scientific evidence under the Daubert test consists of five basic elements: • whether a method can or has been tested; • the known or potential rate of error; • whether the methods have been subjected to peer review; • whether there are standards controlling the technique’s operation; and, • the general acceptance of the method within the relevant community. In other words, “[f]or scientific testimony to be sufficiently reliable, it must be derived by the scientific method and must be supported by appropriate validation” (Perry, 2008). Daubert recognized that reliability and validity differ as scientific measures. Whereas validity describes how well the scientific method reasons to its conclusion, reliability describes the ability of the scientific method to produce consistent results when replicated (Harv. L. Rev, 1995). Therefore, the robust validationdper scientific standardsdof any novel scientific technique will be the prerequisite showing for the eventual acceptance and validation of that science by the state and federal courts that follow the Daubert test (Kumho Tire Co. v. Carmichael, 1999). If a scientific technique has been shown to meet the reliability threshold, a judge then determines whether the scientific evidence is also relevantdthe second part of the Daubert test. The relevancy prong requires that judges examine “the proffered connection between the scientific research or test result to be presented, and particular disputed factual issues in the case.” Therefore, the evidentiary reliability of future forensic microbiology evidence submitted to U.S. courts following the Daubert test will turn on whether it has been shown to be validated scientifically by showing that the science supporting the evidence is both (i) relevantdassisting the trier of fact in understanding or determining the pertinent factsdand (ii) reliabledits methodology is based on scientific knowledge (Harv. L. Rev, 1995).
However, not all state courts have adopted the Daubert test. The U.S. Supreme Court’s decision in Daubert was based on the language of FRE 702 and therefore was not grounded in a constitutional right mandating adoption by the states. As of 2017, 39 states have affirmatively adopted Daubert or a similar test for use in their courts or had previously abandoned Frye and had developed a similar test. Eight states continue to adhere to the “general acceptance test” of Frye. Additionally, three states have not completely rejected the Frye standard, or adopted the Daubert factors (The expertinstitute). Whether forensic microbiology evidence is found to be legally admissible by a court or not would first depend on if the court in question has adopted the Frye standard, the Daubert standard, or its own unique admissibility standard. However, any forensic microbiology evidencedat a minimumdmust be shown to be either generally accepted by the relevant scientific community or validated based on reliable scientific techniques and relevant to the case at hand (Klein, 1991).
Case precedent Although the specific question of admissibility of microbial forensic evidence has yet to be tested in a U.S. court, other contemporary cases involving the validation of scientific evidence could give clues as to how courts might handle the submission of such evidence in a criminal prosecution for the use or threatened use of biological weapons. The most relevant of which would be State v. Schmid (State v. Schmidt, 1997), where genome-based phylogenetic analysis of blood samples was used to determine whether a doctor infected his lover with the HIV-infected blood from one of his other patients. After hearing the testimony of multiple expert witnesses, the court held that the phylogenetic analysis techniques used to analyze the samples were sufficiently validated to allow this particular type of genome-based forensic analysis into evidence. In this case, the combination of rigorous scientific validation of submitted
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genome-based evidence and adequate expert testimony regarding the results of this evidence analysis were sufficient for the court to hold the evidence reliable and relevant, as required by Daubert and the rules of evidence adopted by the Louisiana legislature.
Microbial forensics evidence in comparison to other forensic disciplines (Bidwell and Bhatt, 2016) While the use of microbial forensic evidence in U.S. courts has not explicitly been permitted, the strength and accuracy of the forensic DNA analysis have improved to the point, where it has actually been used to exonerate people who had been convicted based on the conclusions from other, less reliable forensic techniques. Harry T. Edwards, a U.S. federal appellate court judge and cochair of the committee that authored the 2009 National Academies of Sciences report, argued that “DNA is really the only discipline among the forensic disciplines that consistently produces results that you can rely on with a fair level of confidence when you’re seeking to determine whether or not a piece of evidence is connected with a particular source” (Jones, 2012). Given these more recent revelations and advances in understanding, DNA evidence has become preferential in the courtroom. The good news is that current microbial forensic techniques are based on many well-established DNA identification techniques. As a result, its reliability may be perceived as similar to that of DNA evidence. However, the uncertainty associated with microbes, their biology, and how they relate to and impact identification and relevance to source attribution must be communicated so that a decision-maker understands the limits of what science can state and how it should be interpreted. Microbial forensic research is saddled with the explicit task of precisely linking the microbes found at a scene to the microbes at a source
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based on unique and identifiable patterns of genetic polymorphisms. Similar to human DNA analysis, microbial forensic practitioners highlight particular loci at which individual strains among larger families of infectious agents differ in nucleotide sequence and use that information to infer common identity and/or lineage. This can be a key element in establishing a connection between the source of a biological weapon attack or biological outbreak event and its perpetrator(s) or cause. In 2011, a Department of Justice report described the use of microbial forensics in the following way: Unlike human forensic analysis, disease-causing microbial pathogens of humans exhibit remarkable genomic diversity generated through a number of elaborate mechanisms, including high mutation and recombination rates, as well as diverse responses to selection. One major goal of microbial forensics is to use this genetic diversity to identify the source of a pathogen used to commit a crime. Kshatriya et al. (2014).
Thus, microbial forensics is a rapidly evolving tool for identifying pathogenic transmission routes, and its underlying scientific processes have been improving as more research is done to strengthen its role as an attribution tool. Unfortunately, there are headwinds with regards to the general notion of using many forms of forensic evidence in the courtroom. The use of forensic evidence in the courtroom has only gained general acceptance in the last 100 years when the concept of matching fingerprints was first used in a criminal trial. Since then, myriad forensic sciences all based upon the idea of matching samples have come into being, including hair analysis, carpet-fiber analysis, bite-mark analysis, shoeprint analysis, and blood-splatter analysis. Laboratories that analyze these phenomena have varying degrees of acceptance and legitimacy. In the recent past, many scandals regarding shoddy work products from some of these laboratories and practices have caught the attention of the popular press and the consciousness of the public. In many
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courtroom cases, subject matter experts will argue about the meaning of a particular match. If the experts are arguing, the question then becomes: Is forensic science really science (Kshatriya et al., 2014)? However, this is less of a problem regarding DNA forensics, which, fortunately, has similar processes as microbial forensics.
Basis for challenges Even if a particular scientific method or certain forensic evidence is verifiable by the scientific community, both judge and jury in each case have the discretion to conclude that a novel scientific technique has not been sufficiently validated. Thus, the ultimate reliance of a novel scientific technique and its results is only as strong as the credence in each court for each case, even if similar evidence has been heard in courts elsewhere. Opposing counsel could directly or indirectly attack the credibility of any forensic microbiology offered up as evidence in many ways. For example, an opposing counsel could question the professional qualifications of the expert witness who is to testify in support of the technique, thus attempting to disqualify the witness. Additionally, opposing counsel while not questioning the expert’s findings, could challenge the conclusions drawn based upon external issues, such as contamination of the collection site before the experts arrived on the scene. Here, the testimony of opposing experts or advice to counsel for crossexamination of prosecution experts can be most useful. If the opposing counsel can reduce or eliminate the value, weight, and/or credibility of the scientific evidence or the expert presenting the information, then the jury or judge could find that the prosecution could no longer meet its burden of proving culpability “beyond a reasonable doubt.” In presenting the results of any microbial forensic analysis in the courtroom, or the court of public opinion, the sources and methods used to back up that analysis will need to be
presented in intricate detail. This could present a particular problem for government-sponsored analysis which may have been wholly or partly classified. Failure to document and present all of the procedures, methodologies, samples taken (including where, what, how, and by whom), and confirmation practices will, at best, give opposing counsel or public commentators ample means by which to cast doubt on the findings. In the worst case, such failure may lead a judge rule the evidence is not admissible under FRE 903 or under Daubert.
The CSI effect Today, popular portrayals of forensic science can fuel both its expectations and conflation with empirical science. Forensic science is often understood as strong evidence in courtroom settings, but in reality, many recent events and federal reports cast doubt on its objectivity. The expectations of forensic science capabilities stem from confusions with empirical science, a phenomenon of high expectations and confidence in forensics that some legal observers and media accounts have dubbed the “CSI effect” (Rath, 2011). The “CSI effect” is a reference to a popular American TV show wherein criminal investigators use the latest science (or science that is currently in development) to solve a complex crime. The show often promotes fanciful notions of scientific certitude as the show’s writers attempt to compress difficult scientific and procedural concepts into a few scenes carved into a less than 1-hour television show. Left out are the many nuances typically associated with the techniques (e.g., the time it takes to gather and process evidence, the cost of such investigations, and/or the financial resources available to conduct such an expensive inquiry). The “CSI effect” has become very influential, especially for those whose introductions to complex science come primarily from mass media. Courtroom
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References
lawyers and judges have complained in recent years that juries have come to expect an exactness, certainty, and conclusiveness in scientific evidence that is unobtainable in the real world. In a policy context, the “CSI effect” can influence leaders (whom a government may wish to sway) into similar thinking regarding unrealistic expectations concerning evidence presented to them. This can then make the use of technical analysis, such as that associated with microbial forensics, a difficult sell. On the other hand, government officials themselves may expect too much from forensic science, causing them to discount solid forensic evidence that is helpful to, but not comprehensively supportive of, policy objectives “letting the perfect be the enemy of the good.”
Chain of custody issues The issue of keeping a reliable proper chain of custody is of paramount concern, not just in criminal cases, but in the international context of attribution. It is the most likely avenue of attack by those who would question an attribution claim. In looking at a chain of custody, it is vital that each step or activity in the chain is properly documented and recorded, including: (i) Development of, and adherence to, a reliable sampling protocol (sizes, location, and method of collection used to obtain samples); (ii) Collection of the samples; (iii) Transportation of samples to the lab for analysis; (iv) Preparation of samples for comparative analysis; and (v) The validity, history, chain of custody, and reliability of samples at the lab used for comparison with acquired field samples (Budowle et al., 2011). Any gaps or inconsistencies in the chain of custody would almost ensure that any microbial
forensic data and analysis would not be considered as valid evidence in a U.S. court, international court, or even the “court” of public opinion.
Conclusion Use of microbial forensics in policy or legal contexts may be on the upswing, but its use by decision-makers cannot be assured given its relative youth as forensic science, and perceived reliability. In any given biological incident, the microbial forensic expert will be one voice in a crowd of many. It is important that practitioners in this field endeavor to communicate their findings to multiple audiences in clear and understandable language and fit it into policy and legal decision frameworks. Certainly, the stakes for the application of probative, properly validated science can be crucial when an accused’s civil liberties are at stake when a successful prosecution, or a wrongful conviction, may result. We posit that the stakes are even higher if such science were to be applied to an actual or suspected event of transnational or global importance with its myriad considerations, potential outcomes, and effects. Across the spectrum and scale of biocrime, bioterrorism, biowarfare, and bioproliferation events that could present themselves, the decisions associated thereof will be informed by science to lesser or greater degrees. Ultimately, how legal and policy influencers and decision-makers understand, perceive, treat, assign value, and rely upon science will dictate the contribution that science has and what its role will be in the outcome.
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Bidwell, C.A., Bhatt, K., 2016. Use of Attribution and Forensic Science in Addressing Biological Weapon Threats: A Multi-Faceted Study. Federation of American Scientists. Boholm, Å., 2003. The cultural nature of risk: can there be an anthropology of uncertainty? Ethnos 68 (2), 173. Budowle, B., Schultzer, S., Breeze, R., Keim, P., Morse, S., 2011. Microbial Forensics, second ed. Academic Press, Burlington, MA. Daubert, v, 1993. Merrell Dow Pharmaceuticals, 509 U.S. 579. Frye v., 1923. United States, 293 F. 1013 (D.C. Cir. 1923). Gladstone, R., Chivers, C.J., October 31, 2011. Forensic details in U.N. report point to Assad’s use of gas. N. Y. Times. http://www.nytimes.com/2013/11/01/world/ middleeast/syria.html. Gutterman, S., Holmes, O., September 18, 2013. Russia Says U.N. Report on Syria Attack Biased. Reuters. http:// www.reuters.com/article/2013/09/18/us-syria-crisisrussia-idUSBRE98H0RQ20130918?irpc¼932. Confronting the new challenges of scientific evidence. Harv. Law Rev. 108, 1995, 1481e1485. Hayden, E.C., 2011. Biodefense since 9/11: the price of protection. Nature 477, 150e152. http://www.nature. com/news/2011/110907/full/477150a.html. Jones, J., April 17, 2012. Forensic Tools: What’s Reliable and What’s Not-So-Scientific. PBS Frontline. http://www. pbs.org/wgbh/pages/frontline/criminal-justice/realcsi/forensic-tools-whats-reliable-and-whats-not-soscientific. See: Katz, R., Singer, B., 2007. Can an attribution assessment be made for yellow rain? systematic reanalysis in a chemical-and-biological-weapons use investigation Politics Life Sci. 26 (1), 24e42. Katz’s methodology assesses the reliability of each source of information (scientific information, intelligence, and open-source reporting) in combination with the strength of its association with a deliberate WMD attack as opposed to alternative explanations. Klein, D.A., 1991. Reliability of Scientific Technique and its Acceptance within Scientific Community as Affecting Admissibility, 105 A.L.R. Fed. 299. Kshatriya, P., Doyle, V., Nelson, B.J., Qin, X., Anderson, J., Brown, J.M., Metzker, M.L., 2014. Progress towards Developing the Pathogen Tool Kit. https://www.ncjrs. gov/pdffiles1/nij/grants/246954.pdf. Kumho Tire Co. v. Carmichael, 1999. 526 U.S. 137. This “weak evidence” effect has been studied among jurors, who tend to interpret evidence that does not meet the “minimum acceptable standard” of convincingness set previously by the other side as further proof that the other
side indeed had it right. See: Mckenzie, C.R., Lee, S.M., Chen, K.K., 2002. When negative evidence increases confidence: change in belief after hearing two sides of a dispute J. Behav. Decis. Mak. 15 (1), 14. Murch, R.S., Bahr, E.L., 2010. Validation of microbial forensics in scientific, legal, and policy contexts. In: Budowle, B., Schutzer, S.E., Breeze, R.G., Keim, P.S., Morse, S.A. (Eds.), Microbial Forensics, second ed. Elsevier, pp. 649e662. 2010. National Research Council, 2011. Review of the Scientific Approaches Used during the FBI’s Investigation of the 2001 Anthrax Letters. The National Academies Press, ” Washington, DC, p. 144. National Science and Technology Council, 2009. National Research and Development Strategy for Microbial Forensics. The White House, ” Washington, DC, p. 3. National Science Foundation, 2013. FY2013 Homeland Security Activities Budget Request. http://www.nsf.gov/ about/budget/fy2013/pdf/09_fy2013.pdf. Specifically, the NSCBT Calls for Establishing a Nationwide Research, Development, and Investment Plan in Microbial Forensic Science; Maintaining a National Biological Forensics Analysis Center to Support Local Law Enforcement Agencies; and Ensuring Coordination Among Professionals in Public Health, Law Enforcement, and Agriculture. Perry, v, 2008. Novartis Pharmaceuticals Corp, 564 F. Supp. 2d 452. Rath, A., February 5, 2011. Is the ‘CSI Effect’ Influencing Courtrooms? Frontline PBS. http://www.npr.org/ 2011/02/06/133497696/is-the-csi-effect-influencingcourtrooms. State v. Schmidt, 1997. 699 So. 2d 448. Strassler, R.B., 2008. The Landmark Thucydides: A Comprehensive Guide to the Peloponnesian Wars. Simon & Schuster, New York, NY. https://www.theexpertinstitute.com/daubert-v-frye-astate-by-state-comparison/. Treadwell, T., Koo, D., Kuker, K., Khan, A., 2003. Epidemiologic clues to bioterrorism. Public Health Rep. 118, 18. http://www.ncbi.nlm.nih.gov/pmc/articles/ PMC1497515/. U.S. National Security Council, 2009. National Strategy for Countering Biological Threats. The White House, ” Washington, DC, p. 2. Varghese, A., 2013. Social Media and the Syrian Civil War. Peace Brief 151. United States Institute of Peace. http:// www.usip.org/sites/default/files/PB-151.pdf.
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