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There’s no doubt about it. When economic times are difficult, the number of claims submitted on stolen/burned cars goes up. The reasons can be many: the vehicle might need expensive repairs; a leased car may have excess mileage; or the owner may no longer be able to make the monthly payments. It’s vitally important to approach each and every claim individually, make no assumptions, and only use the F-word when there is sound, valid, and verifiable scientific evidence.
All too often, a reportedly stolen vehicle is recovered totally burned. Commonly, the adjuster or investigator is amazed at how forensic science can be used to determine how the vehicle was last driven. The services of a forensic locksmith are extremely valuable to insurance companies. The technical knowledge these experts possess can help prevent payment of some dubious claims.
Forensic locksmiths are often perceived by investigators as having all the answers to how a reported stolen vehicle was last driven. After all, they enter the picture with an impressive title and have commonly qualified as experts in the courts, so there is absolutely no reason to question anything in their reports. Or is there?
This article will deal with the standard that forensic locksmiths have imposed on themselves and whether their methodology and conclusions do, in fact, follow the standard of being “scientifically verifiable” as it relates to the physical evidence from the vehicle. The most simplistic way of putting this is: all things considered, if the process cannot be repeated as described, it does not meet the burden of proof necessary to be labeled a scientific method.
The forensic locksmith’s duty, with respect to the physical evidence, is to make sure the conclusions drawn from the hypotheses are “scientifically verifiable.” To meet that standard, the locksmith needs to have a specific methodology: one widely accepted as meeting the most stringent failsafes. From a purely scientific approach, it is both unreasonable and unconscionable to employ ten different processes for the same problem yet reach the same exact conclusion created from a scientific perspective.
Let’s look at some examples:
Citation #1 – A forensic locksmith may spend hours removing an ignition lock, disassembling it, examining the components under a microscope and documenting his findings with microscopic photographs. The forensic locksmith may attempt to compare marks on supplied keys to the wafers/discs (tumblers). In most cases, the locksmith’s conclusion will be some version of “based on a reasonable degree of scientific certainty the vehicle was last driven with a key of the proper type.”
Can this type of examination of the physical evidence be scientifically verifiable? Possibly, however it depends solely on the examination routine and whether the process can be replicated by another examiner – which is known as peer review. Let’s say the microscopic examination employed “variable” magnifications. This type of examination is not scientifically verifiable because the exact magnifications that would allow a repeat of the forensic locksmith’s testing are not given. On the other hand, if the report states that 10x and 30x magnification were used and describes exactly where specific markings are located in conjunction with key insertion into the ignition lock, that method could very probably be repeated by another examiner and the resulting opinion would likely be the same. Such a protocol would meet the necessary standard of peer review. Once peer review has been established, any process is subject to an “error rating,” which estimates how many times this process can be repeated to produce an identical determination.
Citation# 2 – The same forensic locksmith is examining another vehicle lock, this time using a lighted magnified scope. He inserts the scope into the lock and spends five minutes peering into the key pathway. He does not remove or retain the lock, cannot take microscopic photographs and skips many important steps used in the first examination cited. Yet in his written or testified expert opinion of the vehicle’s ignition, his conclusion is identical to # 1: “based on a reasonable degree of scientific certainty the vehicle was last driven with a key of the proper type.” In this case, no technical skill was applied and virtually anyone could perform this type of examination.
The obvious question here would be, if the 5- minute examination with the magnified scope inserted into the key pathway is sufficient, why bother to spend the many hours required by the first process to reach the exact same opinion? Why is it that a high degree of technical skill is required for the first examination, and yet there are no such requirements for the second?
Since both examples involved assignments from the carrier for an “ignition analysis,” it is vitally important that the claims representative (and the attorney if one is involved) has a full understanding of both the process and the descriptive words employed in the final report. They need to fully understand exactly what they have asked for with the words “ignition analysis” — and what the final report must include (or should not include) if it is to stand up in a court of law.
Does the Citation #2 examination meet the forensic locksmith’s requirement for scientific verifiability as it relates to the physical evidence? No, it does not because there is a lack of evidence; since the ignition lock was not removed or retained, there is no physical evidence in the forensic locksmith’s possession. Are there any photographs of the internal lock components? No. Can any marks on the internal lock components be compared to a specific supplied key? No. Can the scope process be repeated? Yes, but with varying results; anything viewed is subjective and may not qualify as a fact.
Citation # 3 – The forensic locksmith is assigned to determine how a reported stolen vehicle was last driven. Physical evidence can be at issue here when the vehicle has not been recovered. All that can be examined is the insured’s keys (he has reported that he still has possession of both sets of keys), looking for evidence that the keys were or were not duplicated. This leaves even the opinion of the key examiner suspect, because keys can easily be duplicated simply by using the VIN from the vehicle; in this case, no key is used as a guide for duplication. (Reasonable doubt? You bet.) The forensic locksmith cannot examine the ignition lock with a scope; nor can he remove, retain and microscopically examine the lock components.
The problems here as they relate to the physical evidence are easily recognizable because neither the examination from citation #1 nor the examination from citation #2 can be performed in this case since neither the vehicle nor the lock has been recovered.
Citation # 4 – An astute forensic locksmith is given an ignition analysis assignment. In this example, the vehicle is equipped with a transponder. The locksmith documents and retains the ignition lock for a citation # 1 examination. He connects a key programmer to the OBD (On Board Diagnostics) port on the vehicle. He turns the ignition (with lock removed) to ON, checks the programmer for the number of keys programmed for the computer and finds all keys are accounted for. He does his microscopic examination of the ignition lock and finds no fresh marks that would indicate the use of a newly cut ignition key being used in the lock. What has he done incorrectly? Absolutely nothing! He has eliminated the use of any key not programmed to the vehicle. He has eliminated the use of a newly cut key (such as a clone) being used to start the vehicle; and every examination performed in this situation was done to the standards of scientifically verifiable opinions based on the physical evidence of the vehicle.
Citation # 5 – The same forensic locksmith examines a vehicle to determine how it was last driven. The vehicle is recovered with extensive fire damage to the passenger compartment. He has recovered the still intact ignition lock and performs a microscopic analysis. Because there is no sign of tampering or force applied to the lock, he determines the vehicle was last driven with a key of the proper type. The problem is that he must skip a step to reach the same conclusion he reached in citation #4. In #4 he connected a key programmer to determine how many keys were programmed for the vehicle. But in this case, he cannot do so because the computer and associated wiring were destroyed by the fire. Can a smart plaintiff attorney use this process knowledge to cast aspersion on the entire case? Can a defense attorney, not having covered this particular base, lose such a case? Absolutely.
“KEY OF THE PROPER TYPE”
So many investigators get excited by this conclusion because it is forensic evidence pointing to insured involvement with the theft of the vehicle. But is this really the case? And is it indisputable?
The phrase “key of the proper type” is not an exact opinion even though it is meant to appear that way. The forensic locksmith may opine that the vehicle was last driven with an actual key or a coded key. The problem is that even though the words may sound powerful, no definitive determination can be made without additional investigation of the claim. The investigator may not understand that this opinion is far from foolproof.
A “key of the proper type” is anything that will rotate the lock without doing damage to the ignition lock. This could be a key not accounted for (a common situation for used cars when the vehicle may have been purchased with only one key). This is a blatant example of why a key programmer must be used in non-burned vehicles to determine how many keys have been programmed for the vehicle. A “key of the proper type” could be a cloned key made without the insured’s knowledge. It could also be a thief’s key. These days, with currently available technology, it is very easy to get keys mechanically cut using only the VIN. Programmers no longer cost thousands of dollars; they now cost just a few hundred dollars and (in the case of aftermarket units) can program keys for a variety of makes and models. These programmers are available to anyone on the Internet! This is why it is of the utmost importance that a microscopic examination of the lock and the use of a programmer is so important to determine the exact last key used. This is especially true when these claims are pursued as criminal cases.
The purpose of using a forensic locksmith is to provide exacting information to his carrier client. The phrase “key of the proper type” can no longer be accepted as a valid opinion. We need to ask exactly which key was used. When t h e opinion is that an actual key was used, the investigator must look further. An actual key could mean the insured husband’s key, the wife’s key, or a thief ’s key. Which key was in this lock last? The same goes for a coded key.
Overall misunderstanding of this science causes another problem to insurers. The court accepts a conclusion based on a reasonable degree of scientific certainty. This means a scientifically verifiable conclusion as it relates to the scientific method.
THE TRANSPONDER IS NO LONGER AVAILABLE
There are conclusions to this day which read, “based on a reasonable degree of locksmithing certainty …” What is that? What are the recognized locksmithing standards?
The insurance industry and the Forensic Locksmithing industry have a duty to write fair reports that clearly define “a reasonable degree of forensic probability.” Those reports should reflect what was done, what was not done, and the resultant “scientific certainty.” We need to be acutely aware that opinions can convict – even if those opinions are wrong. Unlike the emerging technology in murder convictions, we have no DNA on our horizon capable of freeing a wrongly incarcerated victim. If forensic locksmiths are going to take responsibility for the results of their ambiguous opinions that can literally control an insured’s destiny, they must be able to be much more exacting. Conclusions derived from vehicles recovered after being burned or after they are found in a body of water are not 100% reliable on transponder systems because there is no way to determine, without any available physical evidence, how a vehicle was last driven.
Is it ethical to take the description and operation theory of a transponder system straight from a service manual (as has been done for years) to lead the reader to believe the vehicle cannot be stolen? The truth of the matter is that the manual was never meant for this reason. It was meant to assist the technician in diagnosing a normal problem, not to be extended to the components after they’ve been burned or soaked. And the ethical responsibility is that if the vehicle is burned or has been submerged in water, the forensic locksmith must stay in line with his expertise and rarely opine on anything other than the condition of the lock. If doing that, to be exacting and as for the transponder, the opinion has to be inconclusive!
Ed. Note: We asked our writer two questions. Both answers were important enough for inclusion.
Q1. Is there any way to know if the “stolen car” was last moved via flatbed, not driven to its own final resting place?
A1: Fire and water kill the evidence one is looking for in the computer to determine how many keys are programmed. Carriers are under the idea that there is a black box similar to an airplane (which, by the way, is orange, not black) Since few investigators know anything about vehicles, they are left to rely on their forensic expert. The computer is not waterproof. Once water gets into it, the corrosion starts wiping out circuits in the circuit board. The same thing that happens if a cell phone is dropped in the water. This means the computer can no longer be interrogated.
In a fire, not only is the computer destroyed and turned back to carbon, but all associated wiring is destroyed as well; and so, this system too cannot be read.
What the forensic locksmith does to get around this matter is to insert in his report the description and operation theory taken right from a service manual, making it appear as though this vehicle would be impossible to steal. His primary focus is on his assignment (ignition analysis), and the transponder is just an add-on. The information in the service manual was never meant to be used by a forensic locksmith in a burned or flooded car. The intended purpose was merely to give the technician information before he would begin to diagnose a problem.
In one somewhat recent case, an insured was convicted based on a conclusion that the vehicle was last driven with a key fob of the proper type. Had there been a defense expert, s/he would have supplied a video from the Internet that went viral. It was from security cameras demonstrating how a $250 programmer could make a key that allowed the theft of a car in three short minutes. The vehicle was a smart key BMW 5 series.
On burned vehicles one step of interrogating the system has been left out. For most burned vehicles, the physical evidence that the expert is required to testify on no longer exists. Therefore, the opinion should be inconclusive. But insurance investigators may pressure the expert by saying “I know the insured is guilty; here are the details.” The forensic locksmith wants to contine working with this investigator, and he will say what the investigator wants him to say. Some or most SIUs are OK with inconclusive results; a few are not, and that is regrettable. The courts expect the reports to be based on a reasonable degree of scientific certainty; however, a recent court tossed an expert’s testimony based on its belief that the conclusion meant nothing without the sound scientific methodology to get there.
So with regard to a burned or water-filled vehicle, the conclusion must be inconclusive, unless of course one is indulging in shenanigans, testifying on the lock and assuming everything else. The ignition lock is only one part of the equation, as is the transponder. If one is only testifying on fact related to the lock, that is not the whole picture; and if the vehicle is not burned or flooded, the forensic locksmith may interrogate the transponder system to determine how many keys have been programmed for the vehicle — a step he cannot perform in burned or flooded cars.
Q2: Is any credentialing involved? Can anyone define himself as an expert? Or is there a testing facility. Is there a record of how many times one has testified or how many cases have been handled?
A2: There is an association called the Associated Locksmiths of America (ALOA). Theoretically, anyone can describe himself as a “Forensic Locksmith.” The cross-examining attorney has no clue how to question that person because the rules for qualification as an expert are sometimes vague and sometimes simply undefined. Once qualified, however, judges are not apt to overrule this without specific cause.
It’s critically important to employ only experts who ARE experts. Examine the expert’s credentials. Has the expert taught? If so, was that teaching to a Quantico audience or to a group of company adjusters? Who hired the expert? A multi-person team from a highly regarded government agency or a single company training director or executive with no specific knowledge of the subject? Is the expert published in a peerreviewed forum — one in which the peers are actually peers rather than just readers/users? Is the expert considered an expert by both plaintiff and defense attorneys, or is he primarily used by only one side?
The bottom line is that no true credentialing standards exist for this business. Thus far, within the insurance world, the only due diligence the carrier does is to make sure the vendor has $2,000,000.000 worth of liability insurance. Occasional that’s not enough, as one major insurer learned after an “expert” with only half of the very worn ignition lock available for examination concluded that the vehicle had last been driven with a key of the proper type. After the insured’s acquittal, a well-deserved acquittal in this writer’s opinion, the insured sued everyone for bad faith dealings and received $4,000,000.00 plus compensatory damages.
Author Rob Painter, ASE, CFL, CFEI, CVFI Auto Theft, Fire & Forensic Consultant/ Expert Witness Auto Theft SIU Investigation/EUO Expert http://www.autotheftexpert.com