Role of the Forensic Criminologist in Court

Introduction

Forensic criminology is a subcategory of criminology where the theoretical meets the practical (Van Der Hoven, 2006). Forensic criminology is a science, behavioural and forensic science (Petherick, Turvey & Ferguson, 2010). Where criminology develops theories and studies the cause and the effect of crimes on society; forensic criminology has an academic background and brings the scientific method to the investigation of criminal cases.

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It is essential to understand the difference between criminologists and criminalistics, even though both of them are based on forensic science. While criminalistics use scientific method and analysis on physical evidence to investigate and solve crimes (Inman & Rudin, 2002; California Association of Criminalistics, 2019); criminologists explain the crime as social phenomena, and are from different backgrounds such as psychology or sociology (California Association of Criminalistics, 2019). Forensic criminologists in the court offer a wide range of knowledge because of the multidisciplinary of this field of study and have multiple areas of expertise (Petherick, Turvey & Ferguson, 2010).

This paper will discuss the role of forensic criminologist as an expert in court, the admissibility of expert testimony and the professional status of the forensic criminologist in the court in the first instance. The last point of this paper will be a critique of criminologists as an expert in court.

Roles in the Court Room

The purpose of the forensic criminologist is to help the court make a decision by bringing facts or evidence based on the forensic criminologist’ field of expertise (Jackson & Jackson, 2011). Being an expert witness indicated having more knowledge than the majority of people in a specific area of study (US Legal, 2019). Like every element of the court, the expert has some duty in the court:

1)     “An expert must help the court to achieve the overriding objective by giving an objective, unbiased opinion on matters within his expertise

2)     This duty overrides any obligation to the person from whom he receives instructions or by whom he is paid

3)     This duty includes an obligation to inform all parties and the court if the expert’s opinion changes from that contained in a report served as evidence or given in a statement” (Jackson & Jackson, 2011). 

The court calls the forensic criminologist for two distinct roles:

• As a consultant

A consultant can work for both the plaintiff and defence attorneys. Even though forensic criminologists do not have to know as much as the lawyers about the civil litigation process, they have to know the essential characteristics such as the basic rules, the methods and the procedures, to professionally assist the court and give it answers (Gotham and Kennedy, 2019). The forensic criminologist work side by side with the criminal justice system to help identify and predict the psychological, sociological and economic features that may conduct people to commit the crime (Gotham and Kennedy, 2019).

• To give testimony

In addition to the investigation, they are called during the trial to testify and explain the circumstances in which someone committed a crime. They can have the task to provide testimony or submit written reports related to the victimology aspect of the case, which includes residential, relationship or even medical history (Petherick, 2015). The first step to present evidence in court in the written report. Once called to the witness box, the expert is allowed to bring the written report without annotations to refer to it when answering questions. It is then followed by a cross-examination from the opposite side, where the facts and opinions given by the expert are rigorously tested (Jackson and Jackson, 2011).

Admissibility of Expert Testimony

Forensic criminologists have to be aware of the basic features of the litigation process. One of the most important sets of rules that the forensic criminologist has to be mindful of is the Federal Rules of Evidence, which highlight the admissibility of expert testimony and its limitations (Gotham & Kennedy, 2019) in the United States Federal Court. However, different states or countries, such as Australia, have adopted these rules.

For example, “Rule 702. Testimony by Experts” highlights that at the time a scientific, technical knowledge will be used to assist and help to understand evidence, an expert in this field of expertise can be called in order to testify about the evidence and give its opinion based on its different qualifications. “Rule 703. Bases of Opinion Testimony by Experts” suggests that if an expert’s viewpoint is based on facts and data before the hearing, the expert has to make them suitable with the facts and data of the trial. Only the admissible data will be disclosed by the jury (Petherick, Turvey & Ferguson, 2010).

Various Federal Rules of Evidence are based on several key cases called The Daubert Trilogy which is composed of Daubert v. Merrel Dow Pharmaceuticals, General Electric Co v. Joiner and Kumho Tire Co v. Carmichael cases (The Daubert Standard, 2013).

• Daubert v. Merrel Dow Pharmaceuticals in 1993 concluded that judges are the gatekeepers and have the power to exclude unreliable expert testimony. They can decide if such evidence can be used in trial or not. The admissibility of the forensic evidence is then determined if the theory can be tested if it has already been tested by another expert, if the rate of error is known and if the technique or the theory have been recognised by the science community (Gotham & Kennedy, 2019)
• General Electric Co v. Joiner in 1997 held that judges are the gatekeepers to ensure that expert testimony is relevant enough to be presented in court.  It also showed that judges need scientific knowledge to be able to decide if the methodology used reinforce the conclusions (Gotham & Kennedy, 2019).
• Kumho Tire Co v. Carmichael in 1999 found that the court has to evaluate all scientific or non-scientific evidence with the same admissibility criteria (Gotham & Kennedy, 2019).

Federal court cases use The Daubert Trilogy regarding the admissibility of expert witnesses’ testimony. Any expert has to be familiar with this rule in order to better understand why a piece of evidence can be rejected or an expert testimony excluded (Forensic Group, 2016).

Professional status in Court

Even though the Federal Rules of Evidence support the forensic criminologist as an expert witness in the court, this does not change the fact that criminology is one of the only professions which does not have a code of ethics despite the broad range of disciplines that composed criminology. The non-presence of a code of ethics means that criminologists can practice without having to be part of any organisations (Petherick, Turvey & Ferguson, 2010). However, criminologists can become members of an organisation, such as the Australian Society of Criminology, by accepting the general principles of the organisation, but this is not an obligation.

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Like other witnesses, expert witnesses are unaffected from civil lawsuits due to the evidence they gave to the court. However, this does not protect them from disciplinary actions from their respective regulatory bodies (Jackson & Jackson, 2011). As a young graduate forensic criminologist, it is essential to keep in mind the social responsibility that we have facing the court. Indeed, the judge’s decision can be based on our expertise and on the opinions and facts that we testify (Siegel, 2008). In this way, it is essential not to forget that if we do not feel qualified enough, it is better to decline the offer of being an expert witness than risking to, first, induce negative and fake facts and second, to break its career.

Criticism at criminologists as an expert in Court

• “Skating on thin ice” (Bowers, 2013, p. 143)

This paragraph highlights the risk of not being qualified enough as an expert. Some characteristics have to be taken into consideration to offer a qualified expert at the court, such as its educational background, licences and certifications, teaching experience, books and articles written or even the number of times the individual has been qualified as an expert (Bowers, 2013). However, it is also the responsibility of the forensic criminologist to decline an offer of expertise if the expert does not feel that he is qualified enough.

One of the most relevant examples of an expert not qualified enough would be Fred Zain. He lied about his qualifications as a chemist to have a position in the serology department in the State Department of Public Safety. He also stated being graduated from the West Virginia State College with a major in biology and a minor in chemistry while he only majored in biology (with a C average) but never took chemistry as a minor subject. He also failed an FBI course in forensic science.

Nonetheless, no one checked his background and hired him as a forensic laboratory technician in West Virginia, where he falsified serology results to obtain convictions (Rutherford, 2010). From 1979 to 1989, a large number of defendants have been sentenced to a lengthy prison term’s based on Zain’s falsified results (Giannelli, 2010). This example highlights that even though most of the experts called in court testify with honestly, it is essential to question their integrity due to the social responsibility they have (Petherick, 2006).

• Personal Bias

Above else, forensic criminologists have to be objective. It means that whatever they like or not the nature of the information, they have to be able to investigate it without letting their feelings disturb what they see or hear (Kennedy & Kennedy, 1972). In this way, forensic criminologist has to be able to distinguish the truth from the opinion of others. Forensic criminologists should not forget to act like scientists; they have to test and falsify their hypothesis to prove their statements. However, no expert is totally impartial. Due to the sensibility of some cases, it is difficult to not have some prejudice (Thornton & Voigt, 1988). One of the main ones is the observer effect, “the results of forensic examination are distorted by the context and mental state of the forensic examiner to include the examiner’s subconscious expectations and desires” (Coley & Turvey, 2007).

This bias is human and funded on the fundamental principle of cognitive psychology, that says that our subconscious needs and expectations impact both our perception and interpretation. In the case of forensic criminology, this bias is often seen due to the different situations where information can easily cultivate conscious or unconscious expectations. For instance, in juvenile courts, it is usually for the best interests of the children rather than winning the case (Thornton & Voigt, 1988). In this way, according to the documentation (photos, reports, etc.) that the forensic criminologist can possess, he can work on the case with already unconscious expectations. 

Conclusion

  Observer effect highlights the fact that despite the objectivity that forensic criminologists should have in court, there are situations where the subconscious impacts directly the perception and the interpretation of evidence. However, forensic science and the scientific method on which forensic criminology is based help to bring reliable and possible opinions in the court.

Similarly, the Federal Rules of Evidence regulate the admissibility of opinions and facts as trustworthy evidence in the court. This set of rules is essential as the judge can base the judgement or punishment on the expert’s testimony. However, a problem remains, the non-presence of a code of ethics for criminologists. The Academy of Behavioural Profiling guidelines is generally enough to apply to criminologists, but it would be interesting to have a system as other professions have. Even though some issues are evident in their moral status, it is not the case for all of them. And for a young professional, having a clearly defined code of ethics would help in times of doubt but would also offer a delimited set of sanctions.

In the court, the expert witness such as the forensic criminologist is an advantage when the case requires expertise. Their specific knowledge offer testimony on a wide range of criminal justice principles and procedures but also give explanations on social issues in court. Nowadays, forensic criminology expertise has increasingly been asked in court due to the multidisciplinary of the field.  

References

• Bowers, C. (2013). Forensic testimony: Science, law and expert evidence. London: Elsevier Science and Technology.
• California Association of Criminalists. (2019). What is Criminalistics? Retrieved 10 October 2019, from https://www.cacnews.org/membership/criminalistics.shtml.
• Cooley, C. M., & Turvey, B. E.  (2007).  Observer effects and examiner bias: Psychological influences on the forensic examiner.  In Chisum, W. J., & Turvey, B. E.  (eds.).  Crime Reconstruction. Boston, San Diego: Elsevier Science
• Forensic Group. (2016). What is the Daubert standard for expert testimony? Retrieved 11 October 2019, from https://www.forensisgroup.com/daubert-standard-for-expert-testimony/.
• Giannelli, P. (2010). Scientific fraud. Criminal Law Bulletin, 46(6), 1313-1333.
• Gotham, K., & Kennedy, D. (2019). Practicing forensic criminology. London: Elsevier Science and Technology.
• Inman, K., & Rudin, N. (2002). Principles and practice of criminalistics: The profession of forensic science. Boca Raton: CRC Press. 
• Jackson, A., & Jackson, J. (2011). Forensic science (3rd ed.). Harlow: Pearson.
• Kennedy, D., & Kennedy, B. (1972). Applied sociology for police. Springfield, Ill.: Thomas.
• Petherick, W. (2006). Serial crime: Theoretical and practical issues in behavioral profiling. London: Elsevier.
• Petherick, W. (2015). Applied crime analysis: A social science approach to understanding crime, criminals and victims. Waltham: Elsevier.
• Petherick, W., Turvey, B., & Ferguson, C. (2010). Forensic criminology. London: Elsevier.
• Rutherford, T. (2010). Former news anchor recalls “Mall Rapist” saga. Retrieved 11 October 2019, from https://web.archive.org/web/20150908151432/http://archives.huntingtonnews.net/local/101025-rutherford-localmallrapist.html.
• Siegel, L.J. (2008). Criminology: The core. Belmond, Wadsworth Thompson.
• The Daubert Standard. (2013). Forensic evidence admissibility and expert witnesses: Daubert standard. Retrieved 11 October 2019, from http://www.forensicsciencesimplified.org/legal/daubert.html.
• Thornton, E., & Voigt, L. (1988). Roles and ethics of practicing criminologist. Clinical Sociology Review, 6(1), 113-133.
• US Legal (2019). Expert witness law and legal definition. Retrieved 10 October 2019, from https://definitions.uslegal.com/e/expert-witness/
• Van der Hoven, A.E. (2006). The criminologist as an expert witness in court. Acta Criminologica, 19(2), 152-171.