Assessment? Who is the Forensic Engineer and what is his Role?
3.3 Legal Aspects
not be part of the plant and attached to the corporate headquarters; or he could be from outside the company where the event occurred.
Therefore, different positions of the investigator may result in
different outcomes: investigators that are too close to the event may hide or disregard some root causes, because they may not have access beyond the organizational limit of the company to which they belong, thus with no possibility (or authority) to explore potential underlying causes. Or, depending on his position, the investigator may develop a corrective recommendation that he knows to be within the
organizational boundaries available to him. Not only the position, but also the role of the investigator may affect the investigation outcomes.
Indeed, an investigation is rarely launched by the investigators
themselves, but it is often requested by someone having the authority to do it. Consequentially, the information gathered during the
investigation could be filtered by the authority before the release of the investigative report. The higher the investigator's independence, the greater the amount of information released in the final report.
Forensic engineering can be specific or general in scope, depending upon the nature of the dispute [6]. In this sense, the distinction
between a failure analysis and a root cause analysis has already been done. Indeed, while a failure analysis is carried out to determinate how a specific component, machine, or equipment has failed, a root cause analysis concerns the managerial or human performance aspects rather than the failure of a single part, being addressed in preventing the incident from recurring through a deep analysis about how to enhance procedures and managerial techniques. This is why it is usually adopted where there is a heavy emphasis on safety and quality, such as for industrial incidents.
In the legal context, the role of the forensic disciplines is to assist with proof [20]. This is obviously also true for forensic engineering, where evidence is provided to help the trier of fact to determine, beyond a reasonable doubt, guilt in criminal proceedings or liability in civil proceedings. The role of the investigator is to testify, in deposition or in court, about the findings of his/her investigation. Generally, the investigator is asked to answer a set of questions posed by the judge, or the prosecutor, or the attorney for an involved party. This task is accomplished with the deposition of the incident investigation report.
The judge, or the prosecutor, or the attorney for an involved party are generally interested in [6] and [10]: the investigator's qualification for the specific incident analysis; the assumptions at the base of the
investigator's analysis; the reasonableness of the findings reached; the possible alternative incident reconstructions, initially not considered.
The investigator is a customer for his attorney, who will pay his fee.
Therefore, before the proceeding, experts are obliged by the court to be objective, refraining from being an advocate. The best rule is to remain professional and honest, discussing with the client both the favourable and the unfavourable findings of the analysis, prior to testifying.
Some legal aspects of forensic engineering include [20]:
The chain of custody. There are often specific legislations, or guidelines, providing standard rules about how to collect,
transport, handle, and store the gathered samples that might be used for legal purposes. Indeed, many of the problems related to this topic have been solved through administrative solutions, such as labelling, barcodes, or restricted access. Figure 3.4 shows the handling of an item under investigation;
the admissibility of forensic science. In order to be considered in a criminal or civil proceeding, the forensic evidence must be
obtained legally, properly following formal rules. Moreover, the weight of the evidence, that is the value assigned by the trier of fact, is also fundamental in establishing the relevance of the
evidence. Admissibility standards and practices should be known by the investigator, in order to provide admissible evidence from the beginning of his activity, focusing only of what can be spent
during the proceeding;
the expert evidence at trial. An admitted evidence can be contested during the trial, for its probative value or weight of expert evidence.
In many jurisdictions, the analyst who collected that evidence and performed the subsequent tests, finding the resulting conclusions, may be asked to testify when (part of) his work is contested. Direct examination, cross examination, and re examination are means to debate about the expert witness during a trial. The expert should pay much attention in the manner he expresses his opinions, to avoid misunderstanding and increasing controversy;
the right of appeal review and postconviction. Some jurisdictions allow parties to appellate on the admissibility of expert evidence.
The investigator should be prepared for this eventuality;
the lay assessment of the forensic science. To fully understand the expert evidence, technical knowledge should be possessed by everyone in the court. Obviously, this is not the case. This is why communication aspects need to be considered;
the plea bargains and interrogations. The objectivity of the forensic evidence is leverage in plea negotiations. A similar role is assumed in police interrogations, persuading a suspect that forensic science implies his guilt. However, in this book deliberative malicious acts are not considered, and therefore this aspect may be of less
interest;
the wrongful convictions. There are several cases where forensic science failed in the reconstruction of disputed issues. Therefore, from a legal point of view, the forensic evidence can be as wrong as another source of evidence, like testimonies, regardless the
scrupulousness taken from the scientific principles;
the expert witness immunity. For a long time, forensic scientists enjoyed the immunity from negligence. Recently this changed, and experts are exposed as being liable for mistakes caused by
negligence, inadvertence, and incompetence.
Figure 3.4 Handling of an item under investigation.
The necessity to seek legal guidance when preparing documentation is stressed in [21]. If the incident has potential liability for the company, a prompt involvement of legal counsel is suggested. A frank
communication between the attorney and his client is encouraged, being enforced by the existence of the attorney client privilege. It will help to have an open communication between the incident
investigation team and legal counsel, and between the legal counsel and management. Documents regarding the investigation or any legal advice should be protected from disclosure, especially when they are considered privileged information. Each member of the investigation team is highly recommended to treat every written document he/she will produce (including emails, notes, reports) as if they would become of public domain and shared with the press. This allows sure
protection from unwanted disclosure, while the team member remains professional if those documents become evidence during the trial.
However, the attorney client privilege can be denied by the court under certain circumstances. In this case, investigation reports are asked to be shared, disclosing them. For this reason, it is suggested to use header and footer designations to identify those documents
containing confidential information. When writing documents,
inflammatory terms should be avoided, like “disaster”, “catastrophe”,
“lethal”, and so on. Similarly, technical reports must not use
judgmental words such as “negligent”, “deficient”, or “intentional”, refraining from assigning blame. They should be free from opinions too, like the ones regarding contract rights, obligations, or warranty issues. The investigator should also refrain from presenting vague conclusions, unsupported by facts. Investigating and documenting near misses as deeply as is done with incidents, is also good from the legal point of view, being an excellent way to demonstrate the
commitment of the company towards the risk based process safety.
Considering the liability issues and how they vary from country to country, it is important that any documentation generated during the investigation remains discoverable [12] regardless the barriers that might be put in place. Moreover, this documentation could be used to sway the public opinion and to assign blame and negligence: this is why it becomes important to adopt a method, together with the attorneys, to control such documents. Indeed, documents
management is as important as their writing: the collection, recognition and organization of evidence and documentation are crucial steps for a proper investigation. Issues about documents management concern the necessity to develop header and footer to identify those documents that cannot be duplicated, or to ensure their chain of custody. The retention of the incident investigation reports is a controversial topic between layers, who tend to not retain them to limit both the legal costs and avoid an eventual increase in the
company liability, and engineers, who tend to retain them to preserve the lessons learned from the incident. Internal procedures and, in some countries, technical standards provide guidance about the retention requirements and timing.
Any statement, action, and decision to be taken after the occurrence of an incident might significantly affect the credibility and the reputation
of the company, which are fragile assets. Therefore, it is important to invest in a proper communication management, informing employees, contractors, neighbors, local authorities, and the public with an
appropriate degree of details, weighting each single word to avoid misunderstanding about the incident investigation and, by reflection, about the company's commitment to process safety and its reputation.
Credibility is a value that is difficult to create, requiring years, maybe decades, to be solid enough; but it can be destroyed very easily in a few moments. It is therefore essential to provide corporate communication protocols to the investigation team, together with additional training, if required.
Learning from experience may also have legal repercussion. Indeed, the legal liabilities are likely to increase for the company that does not apply the lessons learned from previous incidents, not necessarily occurred in the same plant or company, to avoid the recurrence of similar events. Legal issues related to post investigation generally arise when the provided recommendation has a high cost to be
implemented, and then it is not followed up. It is therefore important to discuss alternative recommendations before they are officially formalised.
In the litigious environment, sharing knowledge could also be
problematic for logistic issues, especially for large companies, which have to consider practical issues for a proper knowledge sharing, like the turnover of personnel. However, all these challenges can be faced through an adequate communication management.
Very often, employees' interviews are an important source of
information for an industrial incident investigation. It is therefore recommended that the investigation team members be trained to properly conduct interviews, and to inform the employees about how to sit the interview, in order to minimise personal liability.
Sometimes, when a punishable offence has been committed, the technical consultant may have the additional task of comparing the behavior of the investigated person, and the omitted (or infringed) cautions with respect to the specific laws of reference. The sources of law may be widely different from country to country. A forensic
engineer possesses a solid knowledge about the sources of law of the country in which he/she operates; indeed, being a sound technician is not sufficient to also be a good forensic engineer.
Disagreements with reports regarding the same incident, which have been written by another qualified colleague, should be presented professionally. The focus of the criticism must not be personal attacks (e.g. concerning the academic qualifications or the private life): it should be based on the facts, the reconstructed timeline, highlighting gaps or different conclusions.
It may happen that the investigator provides different explanations for a single accident. This is not necessarily a disadvantage, because even if the investigator does not know exactly what happened, he/she
knows what did not happen for sure. This consideration could be useful especially for the defendant (the party accused by the
prosecutor). Indeed, the defendant does not need to fully reconstruct the dynamics of the incident, but it is sufficient to prove that he was not wrong and did not have any correlation with the occurred incident:
that may be all that is needed.
Sometimes, depending on the regulations of the specific country, the necessity to investigate an incident is required by law. It is interesting to ask if this will prevent the accident's occurrence [22]. The answer depends on a number of factors. Firstly, the companies should be equipped properly to perform an investigation, checking the
availability of enough resources to find the root causes. Secondly, the interpretation of the law promoted by the public opinion and mass media is more oriented in finding the blame rather than the actual causes that led to the incident. When dealing with industrial accidents, it is generally, and incorrectly, assumed that the lack of safety is
attributable to managerial choices in putting profit before safety. With this spirit, the help provided by law seems to vanish and the attention is not properly focused on the corrective actions. Moreover, it is
important to question about the sharing of incident reports among different companies, even anonymously: indeed, the work involved in the investigation is largely wasted if the information found is not broadcast, thus producing only a limited enhancement in the short term scale.
In conclusion, taking inspiration from [12], some final considerations about the legal aspects are confounded. Firstly, it is essential that proper legal assistance, by the organization's attorney, is provided throughout the investigation process. Then it is fundamental to keep a technical focus when performing the investigation, not answering questions about legal responsibility (this job is the task of the legal counsel). The investigation team should have the proper credentials to carry out its job: this will help to defend the organization and its
position during an eventual trial. It is also important to follow the requirements of regulations about incident investigation including the internal organization's procedures. High quality standards should be maintained to guarantee the confidential information will remain so and to enhance the credibility. Concerning the witness statements, attention should be paid to avoid wordiness that may lead others to misunderstand the content of the testimonies or to question about their credibility. Clarity in writing is a desirable skill to avoid
ambiguities in interviews and reports. After a witness statement is recorded on a document, it is suggested that the witness sign on each page. Audio or video recording the interview may help in gathering as much information as possible, but their use should be extremely
prudent since it may make the witness nervous and less willing to share information. When there is a high probability of legal
consequences after an incident, the interviews should be structured formally, and the witnesses informed of this condition. The witness may be reluctant to share some information; it becomes important to try to relax the witness under this typical stressful condition.
Remember to respect him/her even if it will not be possible to obtain his/her collaboration. Throughout the investigation, maintaining a proper chain of custody is legally essential to document the formal transfer of evidence from one person to another, having the objective to prevent alteration. From a legal point of view, it is also necessary that all the interested parties take part to the unrepeatable tests that could be performed: the investigator must invite them when physical data could be permanently altered.