However, scientists sometimes simply make mistakes. The federal regulations take this into account and acknowledge an important distinction between actual honest error and research misconduct. In research misconduct proceedings, whether an allegation is the result of the honest error is evaluated during the investigation phase, along with an analysis as to the level of the respondent scientist’s intent. This is because, in addition to expressly excluding honest error from the definition of research misconduct, the federal regulations require that a finding of research misconduct also determines that (among other requirements) the misconduct was committed intentionally, knowingly, or recklessly.

Problematically, many of those conducting recent research misconduct investigations struggle with this intent part of the analysis and  consider this requirement as a mere box-checking exercise, making findings that a scientist “intentionally, knowingly, or recklessly engaged in research misconduct.” That is, investigation committees make their conclusions without actually specifying the level of intent found, or explaining why a preponderance of the evidence supports a finding of a particular level of intent. It should be axiomatic that when required to make a finding of three separate and distinct conclusions as to the actions of a respondent scientist, after a full investigation, a committee must actually make a finding; i.e., make a choice. Institutions, and even the federal government, routinely “punt” at this part of the analysis by making these blanket, non-specific findings as to intent. It has been our experience that both the federal government and research institutions (which typically conduct investigations in the first instance) have made these generalized findings, thereby, in our opinion, shirking the requirements codified in the federal regulations and in institutional policies.

Indeed, the Federal Research Misconduct Policy (first published by the White House’s Office of Science and Technology Policy on December 6, 2000) highlights the need for clear findings of intent. It notes that multiple commenters sought clarification on the level of intent, and responded by stating that “the intent element is satisfied by showing that the misconduct was committed ‘intentionally, or knowingly, or recklessly.’ Only one of these needs to be demonstrated in order to satisfy this element of a research misconduct finding.” A finding of intent—be it intentional, knowing, or reckless—is a critical element of a research misconduct finding. To reach a finding that there was an honest error requires an investigation committee to analyze the facts and reach a conclusion as to the level of intent. The process is further complicated by making it a respondent’s burden to prove by a preponderance of the evidence that his or her actions were honest errors. This process therefore should require the institution or ORI to make a specific finding of intent by a preponderance of the evidence which should not reasonably be met by a blanket statement that a respondent acted “intentionally, knowingly, or recklessly.”

It is troubling enough that neither the federal regulations nor most institutional policies define the terms “intentional,” “knowing” or “reckless.” Indeed, it was not until recent years that any scientists had been found to have acted “recklessly” at all, with institutions relying solely on making a finding that a respondent scientist acted either “intentionally” or “knowingly.” To compound this issue and make it more difficult for a respondent to adequately respond to a draft investigation report’s findings (the only opportunity during the investigation for a respondent to fully respond to an investigation committee’s evidence and analysis) by in essence abdicating its requirement to make a specific finding as to intent is fundamentally unfair. Just as scientists must guard against research misconduct to ensure data are accurate and thereby promote trust in science and protect the public, investigations should fully embrace their responsibilities by making full, specific findings regarding intent to ensure that scientists are not being severely and unduly punished merely for making a mistake. There is, in the end, much at stake.