Forensic science provides a form of applied science contextualised with the law, “…inextricably in the service of the public.”1 However, increasing publicity through visual media that glorifies and deceptively portrays the field as fool-proof, is having negative impacts in courts worldwide. These impacts are largely due to incorrect protocol and overstating of results beyond what the jury can comprehend. Mystery and awe has surrounded forensic science, captivating audiences with programmes such as CSI: Crime Scene Investigation. The series of forensic-related footage has enabled the field to become known widely, however understanding the complexities is being shown to be a serious constraint. The advantages have seen the ‘industry’ receive large grants and funding in some areas, however the majority of juries misinterpret the strength of evidence, easily overestimating the weight it offers the court. This is significant as the jury is typically made up of everyday people, rather than scientists. Therefore, further transparency is needed for the jury to interpret the weight to apply to various types of evidence.
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It is apparent that the multidisciplinary science of forensics is lacks the appropriate strength to govern the entire framework under a common model; forensic science. Whilst there have been huge amounts of research into the chemical , biological and physical sciences, many of the evidences, such as tool mark and fingerprint evidence, that are relied on to provide individualisation and uniqueness lack adequate funding and research to develop their validity, reliability and statistical significance. It is a flaw in the system that we are required to comprise the entire variety of disciplines that interpret forensic evidence under one umbrella-like concept.
Encompassing the forensic disciplines under the one term is the result of rapid expansion in the field. It is appropriate to appreciate that some fields, particularly areas of DNA research, have received significant attention, where others have been neglected. Perhaps forensic science and its community are at a stage where disciplines can be distributed between what is forensic evidence and what is forensic intelligence. Or perhaps it is more suitable to divide on the basis of scientific / analytical based or expert interpreted. Forensic science as a whole needs to be thoroughly evaluated to determine an effective distinction for the legal system it is meant to benefit, where the absolute science can be provided solely on the condition that there is reliability, validity, and known uncertainties, while the interpretational evidence that cannot be substantiated with statistics and databases, yet can potentially be validated with further research to assist individual experience of so-called forensic experts.
The National Research Council of the National Academies has identified in the United States the significance of the overestimation and misinterpretation regarding the forensic evidence that is being produced for the courts.2 Their report dissects the major disciplines, establishing recommendations for strengthening forensic science, including but not limited to establishing stringent protocols, better definition of expert witness phrases and implement and enforce better practices and standards for forensic science professionals and laboratories.2
This report will not examine in detail each discipline of forensic science. However, it is the poor attempt of classification of all forensic practices into the one structure of ‘forensic science’ that will be the focus.
Forensics and the “CSI effect”
Forensic science evolved from the need to prosecute criminals more effectively. Criminal activity occurs in many facets, and can occur at any time.3 Illegal activity can also be promoted by drugs which is both dangerous for the criminal and people around them.3 Crime scenes, whether physical harm have occurred, or just simply theft, are usually rich in biological and physical information which, if interpreted correctly, can allude to the events that occurred.3 The processes and people whom this information was handled between, from the collection to analysis, to the use in court as evidence, is known as the chain of custody. If this chain of custody is not maintained with the highest integrity, the information gathered has no use in court. Often carelessness and poor decisions from handlers lead to potential evidence being reprimanded. Each time forensics fails in court, it adds to the pressure of sceptics who criticise the entire field because of the encompassing of all forensic sciences under one domain.
It is the Hollywood glamour that has given television programmes associated with forensic science an established excitement among viewers for their 60 minute showcases. The episodes make forensic science appear deceptively simple which invites illusionary expectations of analysis and value at trial. The “CSI effect” does not replicate the true intricacies of real forensics.
Whilst the digitised world is a real thing, it is greatly overstated the power and graphical interfaces of the computer systems used, ‘tapping’ into databases that are only dreamt about by certified forensic experts. It is then a false assumption that everyday forensic analysts are assisted with these capabilities. It is examples in these shows such as fingerprint comparisons that search through computer databases in minutes, and DNA samples that are analysed for STRs and specific loci by the time they arrive back from the crime scene. In reality, DNA analyses are backlogged in many cases because of the time it takes to analyse. In reality, simple PCR amplification can take the time that one episode of CSI establishes, develops and solves an entire case.
The effect broadcasting has had in portraying the dramatic evolution of criminal cases also has confused the role individual forensic experts have, that is, to assist law enforcement in establishing a case, and then to assist the court to understand and interpret the evidence and their findings. The “CSI effect” has led people to believe they also take on the role police investigators, and even lawyers and counsellors in some instances.
This “CSI effect” has extended into the court room where the jury are potentially faced with this expectation that the evidence that is going to be explained is decisive. Unless the expert makes it absolutely clear with the significance of the evidence, the jury can add substantial weight to the case, on some occasions be the fundamental basis of their decision. It is up to the defence to cross-examine expert witnesses and source potential mishandling that can question the evidence. Once questioned, the integrity of the case is in jeopardy due to misconduct. Many wrong convictions have been made on evidence that has been incorrectly examined and weighted. Every time forensic science fails in court, the pressure is placed back on the entire field to argue the truth behind the science. The problem extends not only from poor expert witness testimony skills, but an inadequate framework with which the system is explained.
Strength of Forensic Science
Encompassing the many disciplines that currently make up the forensics framework within one title lacks the fundamental strength that is needed to maintain the integrity of applied science for the benefit of the public. A model should essentially provide the basic theory for all disciplines it governs. This is not the case as we begin to dissect this concept.
The first basis of which the current framework of forensic science does not adequately distinguish between the disciplines is the misperception of differing areas of science, being pure and applied. Science can be described as a body of “…knowledge or a system of knowledge covering general truths…concerned with the physical world and its phenonomen.”4 With this understanding, it is clear that when combined with the context of forensics, the overall concept of science should be contextualised with the legal system.1 The variety of natural sciences, such as chemistry, biology, and physics have be around for decades and their theories, methods and techniques have been strongly developed. It is the disciplines that have evolved out of necessity for law enforcements’ requirement for further evidence, such as fingerprinting, tool mark impression and document examination, which do not have the established literature and research.8 James and Nordby (2003) consider this, pointing out that natural sciences are based on theory and are controlled and certain, whilst forensic sciences are practical, applied, uncertain, and compromised. This view does not consider the human interface that science is controlled by, and that the flaws of science are generally the flaws in the procedure and protocol used. Whilst in many cases what James and Nordby (2003) observe is true, it is the professionalism that accompanies the process which determines whether the integrity is maintained. James and Nordby (2003) contradict themselves to agree with the above, noting that “Good science, and good forensic science, produces reasoned opinions.” This truth of this statement is derived from the procedures used by individual scientists to derive their opinions. The quality of the scientists’ analysis ensures the validity of their opinion, accounting for both natural and forensic sciences.
A second delusion of the current framework has caused non-scientific evidence being cunningly used as trickery in the courtroom. It is dangerous that the courts, since admitting evidences such as CCTV footage, are leaving the defence to discredit the opinion evidence that has blatantly no scientific theory behind it. This report will not be used to argue the reasons other than that disciplines such as document examination, fingerprinting, profiling, and facial mapping are significant forensic intelligence for law enforcement, and are often used to establish a list of suspects. However their use is currently limited by the research and funding that has gone into their development, and until analytical and statistical significance is analysed for each discipline, they should be not collectively assigned within a broad forensic science framework. When evidence is presented in the courts, it is often seen that the applied sciences come undone from both the lack of foundation of the disciplines, and poor forensic expert testimony. Starrs (2003) is mindful of the relationship between lawyers and forensic practitioners, conscious that forensic scientists often struggle with the legality of the courts.11 To contrast this, lawyers are identified to narrow-mindedly focus on discrediting scientific opinion, due to their insufficient knowledge of science.11 Starrs (2003) comments that the contrasted view of science and the law requires experts’ reconciliation so that they can work in both amicably and advantageously.
An example of the injustice that expert witness testimony is causing is demonstrated in the Atkins v The Queen trial. The facial mapping discipline is not a direct science. It has developed out of the need for visual identification from video and photographic evidence. However, because judges, jurors interpret faces of known and unknown people every day, there is a misconception that the area of expertise is more simple than uncommon knowledge, such as DNA analysis.5 Potential prejudice and miscarriages of impartiality due to underestimating the difficultly in establishing identification by facial mapping is now commonly evident in courtrooms due to the increasing footage of CCTV and other photographic material that is being submitted as evidence.5
In the example Atkins v The Queen trial, the expert witness that testifies only similarities between the exemplar and the captured footage of Dean Atkins failed to inform the discrepancies into their testimony.5 It is believed that the jurors understood the expert opinion as a positive identification. It is a known fallacy that jurors cannot weight appropriately the evidence that is given to them, and therefore it should be made clear what basis the opinion of the evidence is made. Also, there are ways to mislead the jury into thinking that there is science involved. Establishing scientific-like terms such as the ‘Bromby’ scale, in the Atkins v The Queen case, should not be used as forensic evidence in the court room as the courts are not the place for experts to sit and testify indecisive opinions. The use of expert opinion established on experience rather than the science needs to be frowned upon, and should begin to discredit users from being professionals.
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An alternate example is the Brandon Mayfield case. Mayfield was arrested in March 2004 as a material witness in an investigation into the terrorist attack in Madrid, Spain, on commuter trains. It was found by the FBI using IAFIS that it was Mayfields’ fingerprints that were left on the bag of detonators. However, the Spanish National Police later informed the FBI that the fingerprints were in fact from an Algerian national as the source.
The misidentification from the Brandon Mayfield case was due to many factors such as bias, prejudice, human error and insufficient methodology .6 While the automated approach to fingerprint analysis is mostly sufficient in establishing a collection of suspect fingerprints that have similar markers, it still requires human interpretation to establish which fingerprint has all the same individual characteristics as the sample print. For this reason, it is essential that if such evidence was to be admitted to court, the jury is aware of this, and other, types of error, and that the expert evidence should be used to aid other evidence. While fingerprint evidence does have noteworthy research it should still be considered by juries carefully. The technique relies of observation of markers from experts rather than analytical techniques that can be verified and thus, should be considered under an alternate framework. Fingerprint analysis is a discipline that has received more attention than facial recognition and many others, however, it is essential that a strategy is implemented to amend the framework strength that forensic science is lacking.
At third concept that prompts further debate is the misuse of the term science in ‘forensic science’. It is observed that society perceives that science provides “…hard facts, definite conclusions, and uncompromised objectivity…” in every case.9 Due to the rapid expansion of forensic science, the definition has not adopted its use today, where research provides methodology. Then it is perceivable that forensic science is the use of these methodologies in the search for facts, although the result may not always provide the statistical significance. This is reported by Starrs (2003) to be the key issue with forensic science. Starrs (2003) observed the public portrayal of forensic science needs to capture “…a more realistic scientific level…” so that juries wont measure up expert witnesses and their testimony based on expectations far beyond the scope of the forensic framework.11 It may be that forensic experts are struggling to keep pace with the growth of forensics and public misunderstanding, and are expressing opinions that are greater than the significance of their results.11 As Inman and Rudin (2001) explained, in many cases science becomes a misused term, employed to gain credibility and legitimacy in society.9 It is important for the future of forensic science that the understanding of the science ‘body’ is clarified, being that science provides process rather than truth.9 Clarification can be assisted by the observation of the continual evolution of science, where at any point of time a discovery enhances the knowledge we have, and refutes (or refines) what was once known to be true.9
Potential frameworks
A framework is an “…underlying set of ideas…that provide the basis or outline for something intended to be further developed at a later stage.”7 To encompass all forensic disciplines, developed and undeveloped, under the one forensic science framework is misleading, particularly when justifying evidence in court. It has been discussed through auditing the strength of forensic science by the National Academy of Sciences, many forensic science methods have been developed due to the evidence that has been able to be collected from the crime scene.8 Whilst it is known that many disciplines, such as serology, forensic pathology, toxicology, fingerprint analysis, and chemical analysis have a solid backbone regarding their theories and methodologies, there are many facets that are not as well developed.8 These include pattern / impression analysis, firearms analysis, hair and fibre analysis, handwriting and document analysis, explosive and fire debris analysis, forensic odontology, blood spatter pattern analysis, paints and coatings analysis and many more.8 Inman and Rudin (2001) agree with this concept, in that “The realm of science can be divided into pure…and applied science.”9 Their approach highlights the need for science disciplines to be distinguished. However there are potentially many errors is segregating on the basis of pure and applied sciences. For example, analysis of forensic analysis of crime scene evidence relies on the foundation on the pure or natural sciences. Therefore, at what point does an applied science be sufficient to be classed as a natural or pure science?
Potentially, there are a number of possibilities that could divide disciplines adequately for the use of expert evidence weight in courts. Some of these include:
Forensic evidence vs. forensic intelligence
Analytical vs. interpretational
Scientific vs. intuitive
Objective vs. subjective
In a forensic context, forensic evidence and forensic intelligence seem the obvious option. However, exploring into how each are defined establishes that much forensic evidence assists also as forensic intelligence and vice versa. More appropriately, objective and subjective establish the specificity required for absolute classifications. Forensic evidence with a scientific approach could be defined as the objective analysis while forensic evidence with an interpretational approach could be defined as the subjective analysis. Correlating this idea, Inman and Rudin (2001) suggested that objectivity of science is always being sought after, realistically, we must understand that human interpretation of evidence, “…regardless of whether the items of interest are two fingerprints or two spectra…”, places subjectivity into the equation.9 Whilst this is true in this day and age, the reality is that technology is developing exponentially to the point where automated systems will replace much of the bias that evidence is faced with.
A framework that adheres to this objective and subjective system would be able to provide evidence weighting guidelines for the significance between these two types of forensic analysis. Potentially, jurors could then differentiate forensic evidence based on this system and already for-see pragmatic value for a fair trial. It must also be recognised here, that due to method and protocol refinement from continuous scientific research, it is important for regular auditing of each discipline to establish the type of analysis that fits best for the time.
By having an appropriate framework employed, CCTV footage and other photographic medium that is being used as evidence, would shift the onus back upon the Crown to demonstrate evidential value. The Crown would then be required to demonstrate the convicting expert opinion has “…probative value…” by exposing its reliability and validity.5
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