Ethical Justice

1
Ethical Justice

• Chapter Eight Ethical Issues in Forensic
  Examination

2
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.

3
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.

4
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.

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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
• Forensic science and law enforcement are
  culturally incompatible, with separate missions
  in the justice system.
• The majority of the forensic science community
  lacks standardized terminology and report writing
  requirements.

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The NAS Report

• Many forensic examiners perform examinations and
  testify regarding subsequent findings with an
  inappropriately high degree of certainty.
• The NAS Report recommends empirical research into
  the frequency and nature of examiner bias and
  error.
• Currently, there is no uniform code of ethics
  across forensic science disciplines.
• In order to practice forensic science
  competently, the forensic examiners must first be
  educated and trained as scientists.

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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.

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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 agencys 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.

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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.

10
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.

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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.

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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.

13
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.

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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.

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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.

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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.

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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.

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Ethical Issues in Report Writing

• Cherry Picking violates due process because
• The concealment of any examination performed on
  any item of evidence represents a break in the
  chain of custody.
• The execution of any examination on an item of
  evidence has a potential impact on its volume and
  quality.
• 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.
• 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.

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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.

20
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.

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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.