Ethical Justice

Chapter Eight: Ethical Issues in Forensic

Examination

Ethical Issues in Forensic Examination

When there is a criminal complaint, law enforcement investigators are responsible for conducting a criminal investigation.

To assist with this effort, it is necessary to examine the physical evidence.

The Role of the Forensic Examiner

A forensic examiner refers to any professional who examines and interprets physical evidence with the expectation of courtroom testimony.

Forensic examiners analyze evidence in a scientific manner to interpret the results objectively and report their findings faithfully.

Forensic examiners employ the physical evidence as a tool to sift out case theories that can either be supported or refuted, and report this to the decision makers.

The first onus of the forensic examiner is to establish the objective facts of a case as determined by a scientific examination of the evidence.

Forensic examiners educate investigators, attorneys, courts, and juries with findings. They do not have an investment in the outcome.

Traits of the Ethical Forensic Examiner

The following are traits essential to a forensic examiner:

Develop, maintain, and demonstrate impartiality Acquire knowledge of scientific methodology and

demonstrate employment of scientific methodology in their work

Maintain transparency Achieve and maintain scientific integrity – a level of

trustworthiness that must be earned and must not be assumed.

The anticipation of sworn expert testimony and the offering of sworn expert testimony are distinctive traits possessed by the forensic examiner.

The NAS Report

The NAS report is the congressionally funded system-wide investigation and review of forensic science disciplines and crime laboratory practice.

The NAS Report provides the following conclusions in relation to forensic examiners:

1. Forensic science and law enforcement are culturally incompatible, with separate missions in the justice system.

2. The majority of the forensic science community lacks standardized terminology and report writing requirements.

The NAS Report

3. Many forensic examiners perform examinations and testify regarding subsequent findings with an inappropriately high degree of certainty.

4. The NAS Report recommends empirical research into the frequency and nature of examiner bias and error.

5. Currently, there is no uniform code of ethics across forensic science disciplines.

6. In order to practice forensic science competently, the forensic examiners must first be educated and trained as scientists.

Examiner Bias and Role Strain

Forensic examiners must be capable of demonstrating that they have no emotional, professional, or financial stake in the outcome of legal proceedings.

In other words, they cannot be paid to guarantee findings or testimony favorable to their employer, nor can their advancements or pay be connected to the success of one party over another.

Examiner Bias and Role Strain

Picking Sides; Picking Evidence Science must be honest and unbiased in its methods and

reporting. When scientists become biased, and step outside of their objective role, justice is perverted. Cops in lab coats – On the prosecution side, this phrase

has been used to describe those in public laboratories who try and make their results match their agency’s case against the accused.

Hired guns – on the defense side, these private forensic experts will testify to any opinion.

Cherry picking – the evidence provided to the forensic examiner is often selected from the crime scene by a police investigator in support of a particular theory, or by a prosecutor looking for a conviction.

Examiner Bias and Role Strain

Role Strain The objective mandates of good science are frequently in

direct conflict with the needs of investigators, the desires of attorneys, and even the rule of law as decided by various courts.

This conflict creates a strain in the role that forensic scientists

intend to serve.

Institutional Pressure andObserver Effects

The scientific observer is an imperfectly calibrated instrument.

Imperfections stem from forms of bias, whether conscious or unconscious, can easily contaminate what appears outwardly to be an objective undertaking.

These distortions may be caused by observer effects – a form of bias present when results of a forensic examination are distorted by the context and mental state of the forensic examiner.

Institutional Pressure andObserver Effects

Identifying Observer Effects Forensic examiners must be aware the observer effects exist

and can significantly influence their analysis and results. Once recognized, they can be studied and understood; once

understood, they can be addressed and mitigates.

Institutional Pressure andObserver Effects

Mitigating Observer Effects The ethical forensic examiner has an obligation to mitigate

observer effects, to the extent possible. The following must be taken into consideration to mitigate subconscious bias: The forensic science community must use the same

checks and balances already adopted in other scientific communities.

Forensic examiners must be capable of identifying and filtering information that is irrelevant to their examinations.

Evidence line-ups should be used when appropriate, particularly within the identification sciences.

Forensic examiners should be insulated from law enforcement culture.

Ethical Issues in Report Writing

Forensic examiners are hired to analyze the evidence and objectively report findings, no matter the outcome.

This may be done verbally, with a written report, in formal interviews and sworn depositions, and finally in the form of courtroom testimony.

Ethical Issues in Report Writing

Due Process and Brady v. Maryland The 5th and 14th Amendments to the U.S. Constitution provide

that the government may not deprive its citizens of “life, liberty, or property without due process of law”. Any condition or treatment that tends to bias a judge, jury, or the process as a whole in favor of the state is considered a violation of due process.

Brady v. Maryland is a legal ruling from the U.S. Supreme Court that holds, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” It requires timely disclosure of exculpatory evidence by the prosecution to the defense.

Ethical Issues in Report Writing

Writing it Down Forensic examiners have an ethical responsibility to

ensure that all examinations and results are wholly and effectively communicated to the intended recipients. The most accepted form of professional communication is

a written report. This also provides the forensic examiner with a record of

the examination that should be sufficient to refresh their recollection from the stand.

Ethical Issues in Report Writing

Reporting Obligations of the Defense Examiner When working for the state, forensic scientists are required to

make written reports of any examinations or tests performed on evidence, as well as subsequent findings. They are also required to preserve any photographs, drawings, or bench notes generated. This is in accordance with Brady v. Maryland.

When working for the defense, the rules of discovery differ. A forensic examiner may be asked to refrain from writing a report of their findings.

Ethical Issues in Report Writing

Inconclusive IS a Result Inconclusive findings are a result. They are relevant to the

reconstruction of a crime, the nature and extent of examinations performed, the evidence they were performed on, the quality of any testing, the competency of the examiner, and any legal proceedings that hinge upon the weight that a judge or jury attributed to that evidence.

The practice of selecting which results to disclose is dishonest, and may be referred to as another form of cherry picking.

Ethical Issues in Report Writing

Cherry Picking violates due process because: 1. The concealment of any examination performed on any

item of evidence represents a break in the chain of custody.

2. The execution of any examination on an item of evidence has a potential impact on its volume and quality.

3. The failure to notify the police, court, or attorneys involved in a case regarding the existence of inconclusive examinations assists with concealing the cause behind such results.

4. The failure to investigate and report the cause of inconclusive results potentially conceals the error ate and/or the individual examiner proficiency rate related to a particular test.

Ethical Issues in Report Writing

Ghost authorship This occurs when the person whose name appears on the

publication was not involved either in doing the research, framing the ideas behind the articles, or in writing the article. Alternatively, it can occur when an individual who has made substantial contributions to the manuscript is not named as an author or whose contributions are not cited in the acknowledgements.

This is generally considered a form of scientific misconduct.

Ethical Issues in Expert Testimony

The ethical forensic examiner will refrain from making any false or misleading statements, especially when giving sworn testimony.

The Ultimate Issue - the legal questions before the trier of fact. It is the role of forensic practitioners to educate the court as to scientific opinions related to and bordering on the ultimate issues, but they must fully acknowledge their limitations.

Perjury – the act of lying or making verifiably false statements on a material matter under oath or affirmation in a court of law or in any sworn statements in writing.

Forensic Fraud

Forensic fraud occurs when forensic examiners provide sworn testimony, opinions, or documents bound for court that contain deceptive or misleading information, findings, opinions, or conclusions, deliberately offered in order to secure an unfair or unlawful gain.

Forensic examiners can be cross-categorized as having used one or more of the three general approaches to committing fraud:

§ Simulators – those examiners who physically manipulate physical evidence or related forensic testing.

§ Dissemblers – those examiners who exaggerate, embellish, lie about, or otherwise misrepresent findings.

§ Pseudoexperts – those examiners who fabricate or misrepresent their credentials.