Pressures on the Standards of Forensic Evidence in Civil Actions amidst International Scrutiny
Insurance fraud in Australia is estimated to cost up to $2.2 billion every year.1 Historically this created a direct impact on premiums for honest policy-holders; however, legal recoveries and forensic expert evidence have long been the weapons of choice for insurers fighting against the constant dilemma of insurance fraud. Recent scrutiny of the standards of forensic expert evidence within the international community has increased the reliability of the methodology behind forensic investigations.2
Scrutiny: at Home and Abroad
Although the legitimacy of forensic methodology has been the subject of international discussion for decades, the scrutiny of forensic evidence climaxed in 2009 when the National Academy of Sciences released an unprecedented report into the legitimacy of forensic methods.3 The findings can be best summarised by the conclusion of the report:
“With the exception of nuclear DNA analysis, no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”4
This prompted the production of a further report in 2016 by the President’s Council of Advisors on Science and Technology which concluded that forensic evidence should aim to be scientific, or in other words, “repeatable, reproducible, and accurate”.5 This scrutiny of the standards of forensic evidence has also been observed in Australia. In his 2017 submission to the Conference of the International Society for the Reform of Criminal Law, the Victorian Court of Appeal’s Justice Chris Maxwell also affirmed a dire need “to ensure that all scientific testimony…is not only relevant but reliable”.6
The Practical Impact on the Use of Forensic Evidence in Insurance Fraud Claims
As international pressure mounts on forensic experts to increasingly validate their conclusions, it is expected that the methodology in the execution of forensic investigations will continue to evolve.7 Developments can already be observed in forensic standards such as the National Fire Protection Association Guide for Fire and Explosive Investigations (NFPA 921) which has undergone a constant progression away from a pragmatic approach and towards a strict scientific methodology developed with the aim of being “repeatable, reproducible, and accurate”.8 The NFPA 921 sets out a scientific method and expresses standards for investigations of fires and explosions. Under the Guide, the findings of forensic experts cannot be based only on opinions or experience, particularly with respect to questions of fraudulent origins and causes of fires.
Other developments are observed in the calibre of today’s forensic scientists, many of which have advanced degrees. The National Association of Testing Authorities Australia (NATA) requires forensic laboratories to undergo vigorous assessment and training in order to meet international standards. With these improvements in the training and the methods adopted by forensic experts, they are equipped to extract more information from an explosion site. Today’s forensic examiners are better placed to determine the cause and origin of a fire. In some cases, experts may examine a site up to weeks after the event and discover samples containing forensically significant substances such as diesel or linseed oil, uncovering cases of fraud that are often unidentifiable by Police.
With the pressures of international scrutiny and the support of continuously evolving technology, it is evident that the quality of forensic evidence must continue to develop. This reformation will likely see a progressive improvement in the quality of evidence produced.