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Justice and Science

Chapter 1

For this first week we are going to cover how the justice system and science interconnect with forensic science. This is an unlikely pair and sometimes, from the scientist point of view anyway, can be really frustrating.

Criminalistics (forensic science) “is concerned with the unlikely and the unusual. Other sciences are concerned primarily with the likely and the usual. The derivation of equations, formulas, and generalizations summarizing the normal behavior of any system in the universe is a major goal of the established sciences. It is not normal to be murdered, and most persons never experience this unlikely event. Yet, when a murder occurs, some combinations of circumstances suddenly alters the situation from unlikely to certain”

- Paul Kirk (1902-1970)

https://en.wikipedia.org/wiki/Paul_L._Kirk

Paul Kirk is a famous forensic scientist, at least amongst other forensic scientists, and is one of the early “founding fathers” of forensics within the United States. He is a chemist/microscopist who worked for UC Berkley as a professor and also worked as a forensic scientist. Many of the first forensic science laboratories in the United States were first associated with universities. Some of the notable work of Dr. Kirk include work on the Manhattan Project during WWII and a defense expert in the Sam Shepard case.

Chapter 1: Justice and Science 1.1 The Role of Forensic Science

1.2 Forensic Science and Competing Stories

1.3 Science

1.4 The Recent Past of Forensic Science

1.5 The Odd Couple

1.6 Types of Legal Proceedings

1.7 Ethics

In today’s lesson we are going to cover chapter’s 1 and 2 of you book. For chapter one the subject matter is basically the interaction of science and the law. This convergence of two very different studies is where forensic science is created.

The Role of Forensic Science

What is the difference between a forensic generalist and a forensic specialist?

Examples of Specialists:

Biology – DNA typing, microbiology

Chemistry – toxicology, death investigation, trace evidence

Anthropology – buried body recovery, biological profile

Entomology – time since death

In the infancy of forensic science, most laboratories hired a few “criminalists/forensic scientist” to analyze all the evidence that came into the lab. This was the general practice until about 30-40 years ago. At that time, forensic science had advanced to the point were it would be really hard to maintain proficiency in all the areas needed. Have you ever heard of the phrase, “A jack of all trades and a master of none”? This meant that to really know and understand a specific area of forensics, an individual would have to narrow their expertise in to just a few (at most) sub-disciplines in forensics. When I first started in forensics in 2002, there were still some areas of the country that still had some generalist still working, but it was slowly going out of favor as those scientists retired.

Myths of Forensic Science

“Forensic scientists solve cases.” They are part of the larger investigation.

“Forensic science and criminology are the same thing.” Criminology focuses on the social and human aspects of crime; forensic science applies the sciences to the law, requiring an understanding of a science subject.

Forensic scientist do not solve cases. We are just one portion of an investigation. It take all persons involved to perform their jobs correctly in order for cases to be solved. If the crime scene investigator does not collect the right evidence, then a forensic scientist doesn’t have any evidence to analyze.

Criminology is more focused on the psychological aspect of how human society, social aspects, and crime are inter-related. When you think of FBI profilers, they are practicing criminology. For DNA analysis, drug chemistry, firearm and tool mark examination, etc. the focus in not on the human and social aspects of the crime but on the science and what the evidence (items from the scene, standards taken from victim/suspect) can tell us about their inter-relationship.

The Scientific Process of Data

Reproducibility – anyone who repeats the experiments should obtain comparable results.

Falsifiable – if scientific findings are incorrect, they are clearly stated as false.

Peer Review – data and methods should be clearly stated so that others can evaluate it.

So like in all fields of science, forensic science also follows the scientific method. The scientific method involved the following steps: 1. Question. The "thing" that you want to know. The question you want to answer. 2. Research. Conduct research. 3. Hypothesis. Educated guess or prediction of the outcome experiment. 4. Experiment. Test the hypothesis. 5. Observations. 6. Results/Conclusion.

The information above is very similar. For reproducibility: if two different qualified forensic scientist process the same evidence, the results should be the same. For falsifiable: when evidence is submitted that doesn’t relate to the other evidence, this is reported to the customer. Also, if an error is found, an amended report that states the error is also reported to the customer. For peer review: we have a saying in forensics, “if it’s not written down, it didn’t happen”. This means that anyone that comes behind you and reviews your work, then they should be able to tell what you did and also see how you arrived at your results.

Bias in Forensic Science

How to Prevent it: Avoid contextual information about the case or suspect.

Practice sequential unmasking of information regarding the investigation.

A Forensic Scientist’s primary responsibility is to perform scientific analyses and report their results regardless of how the results might help or hurt their agency.

One of the main ways to prevent bias in forensic science is to train scientists in what bias is and how to recognize bias. The more you are aware that it can happen the more things you can put in place (both in your procedural process and your thought process) to avoid it.

There are many times as a firearm examiner that I receive evidence from a police agency and exclude the firearm or other item as having fired/marked/ imprinted the item of the crime scene (such as a bullet, cartridge case, shoe, tire, etc). The process of these types of examination we will drive into deeper in the coming chapters.

NAS Report

Strengthening Forensic Science in the United States: A Path Forward

Congress directed the National Academy of Sciences to determine improvements needed to strengthen forensic science

https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf

Strengthening Forensic Science: A Path Forward (2009), recommended 13 areas for improvement: 1. To promote the development of forensic science into a mature field of multidisciplinary research and practice, founded on the systematic collection and analysis of relevant data, Congress should establish and appropriate funds for an independent federal entity, the National Institute of Forensic Science (NIFS). NIFS should have a full-time administrator and an advisory board with expertise in research and education, the forensic science disciplines, physical and life sciences, forensic pathology, engineering, information technology, measurements and standards, testing and evaluation, law, national security, and public policy. NIFS should focus on: (a) establishing and enforcing best practices for forensic science professionals and laboratories; (b) establishing standards for the mandatory accreditation of forensic science laboratories and the mandatory certification of forensic scientists and medical examiners/forensic pathologists—and identifying the entity/entities that will develop and implement accreditation and certification; (c) promoting scholarly, competitive peer-reviewed research and technical development in the forensic science disciplines and forensic medicine; (d) developing a strategy to improve forensic science research and educational programs, including forensic pathology; (e) establishing a strategy, based on accurate data on the forensic science community, for the efficient allocation of available funds to give strong support to forensic methodologies and practices in addition to DNA analysis; (f) funding state and local forensic science agencies, independent research projects, and educational programs as recommended in this report, with conditions that aim to advance the credibility and reliability of the forensic science disciplines; (g) overseeing education standards and the accreditation of forensic science programs in colleges and universities; (h) developing programs to improve understanding of the forensic science disciplines and their limitations within legal systems; and (i)assessing the development and introduction of new technologies in forensic investigations, including a comparison of new technologies with former ones.

2. The National Institute of Forensic Science (NIFS), after reviewing established standards such as ISO 17025, and in consultation with its advisory board, should establish standard terminology to be used in reporting on and testifying about the results of forensic science investigations. Similarly, it should establish model laboratory reports for different forensic science disciplines and specify the minimum information that should be included. As part of the accreditation and certification processes, laboratories and forensic scientists should be required to utilize model laboratory reports when summarizing the results of their analyses.

3. Research is needed to address issues of accuracy, reliability, and validity in the forensic science disciplines. The National Institute of Forensic Science (NIFS) should competitively fund peer-reviewed research in the following areas: (a) Studies establishing the scientific bases demonstrating the validity of forensic methods. (b) The development and establishment of quantifiable measures of the reliability and accuracy of forensic analyses. Studies of the reliability and accuracy of forensic techniques should reflect actual practice on realistic case scenarios, averaged across a representative sample of forensic scientists and laboratories. Studies also should establish the limits of reliability and accuracy that analytic methods can be expected to achieve as the conditions of forensic evidence vary. The research by which measures of reliability and accuracy are determined should be peer reviewed and published in respected scientific journals. (c) The development of quantifiable measures of uncertainty in the conclusions of forensic analyses. (d) Automated techniques capable of enhancing forensic technologies.

4. To improve the scientific bases of forensic science examinations and to maximize independence from or autonomy within the law enforcement community, Congress should authorize and appropriate incentive funds to the National Institute of Forensic Science (NIFS) for allocation to state and local jurisdictions for the purpose of removing all public forensic laboratories and facilities from the administrative control of law enforcement agencies or prosecutors offices.

5. The National Institute of Forensic Science (NIFS) should encourage research programs on human observer bias and sources of human error in forensic examinations. Such programs might include studies to determine the effects of contextual bias in forensic practice (e.g., studies to determine whether and to what extent the results of forensic analyses are influenced by knowledge regarding the background of the suspect and the investigator’s theory of the case). In addition, research on sources of human error should be closely linked with research conducted to quantify and characterize the amount of error. Based on the results of these studies, and in consultation with its advisory board, NIFS should develop standard operating procedures (that will lay the foundation for model protocols) to minimize, to the greatest extent reasonably possible, potential bias and sources of human error in forensic practice. These standard operating procedures should apply to all forensic analyses that may be used in litigation.

6. To facilitate the work of the National Institute of Forensic Science (NIFS), Congress should authorize and appropriate funds to NIFS to work with the National Institute of Standards and Technology (NIST), in conjunction with government laboratories, universities, and private laboratories, and in consultation with Scientific Working Groups, to develop tools for advancing measurement, validation, reliability, information sharing, and proficiency testing in forensic science and to establish protocols for forensic examinations, methods, and practices. Standards should reflect best practices and serve as accreditation tools for laboratories and as guides for the education, training, and certification of professionals. Upon completion of its work, NIST and its partners should report findings and recommendations to NIFS for further dissemination and implementation.

7. Laboratory accreditation and individual certification of forensic science professionals should be mandatory, and all forensic science professionals should have access to a certification process. In determining appropriate standards for accreditation and certification, the National Institute of Forensic Science

(NIFS) should take into account established and recognized international standards, such as those published by the International Organization for Standardization (ISO). No person (public or private) should be allowed to practice in a forensic science discipline or testify as a forensic science professional without certification. Certification requirements should include, at a minimum, written examinations, supervised practice, proficiency testing, continuing education, recertification procedures, adherence to a code of ethics, and effective disciplinary procedures. All laboratories and facilities (public or private) should be accredited, and all forensic science professionals should be certified, when eligible, within a time period established by NIFS.

8. Forensic laboratories should establish routine quality assurance and quality control procedures to ensure the accuracy of forensic analyses and the work of forensic practitioners. Quality control procedures should be designed to identify mistakes, fraud, and bias; confirm the continued validity and reliability of standard operating procedures and protocols; ensure that best practices are being followed; and correct procedures and protocols that are found to need improvement.

9. The National Institute of Forensic Science (NIFS), in consultation with its advisory board, should establish a national code of ethics for all forensic science disciplines and encourage individual societies to incorporate this national code as part of their professional code of ethics. Additionally, NIFS should explore mechanisms on enforcement for those forensic scientists who commit serious ethical violations. Such a code could be enforced through a certification process for forensic scientists.

10. To attract students in the physical and life sciences to pursue graduate studies in multidisciplinary fields critical to forensic science practice, Congress should authorize and appropriate funds to the National Institute of Forensic Science (NIFS) to work with appropriate organizations and educational institutions to improve and develop graduate education programs designed to cut across organizational, programmatic, and disciplinary boundaries. To make these programs appealing to potential students, they must include attractive scholarship and fellowship offerings. Emphasis should be placed on developing and improving research methods and methodologies applicable to forensic science practice and on funding research programs to attract research universities and students in fields relevant to forensic science. NIFS should also support law school administrators and judicial education organizations in establishing continuing legal education programs for law students, practitioners, and judges.

11. To improve medicolegal death investigation: (a) Congress should authorize and appropriate incentive funds to the National Institute of Forensic Science (NIFS) for allocation to states and jurisdictions to establish medical examiner systems, with the goal of replacing and eventually eliminating existing coroner systems. Funds are needed to build regional medical examiner offices, secure necessary equipment, improve administration, and ensure the education, training, and staffing of medical examiner offices. Funding could also be used to help current medical examiner systems modernize their facilities to meet current Centers for Disease Control and Prevention-recommended autopsy safety requirements. (b) Congress should appropriate resources to the National Institutes of Health (NIH) and NIFS, jointly, to support research, education, and training in forensic pathology. NIH, with NIFS participation, or NIFS in collaboration with content experts, should establish a study section to establish goals, to review and evaluate proposals in these areas, and to allocate funding for collaborative research to be conducted by medical examiner offices and medical universities. In addition, funding, in the form of medical student loan forgiveness and/or fellowship support, should be made available to pathology residents who choose forensic pathology as their specialty. (c) NIFS, in collaboration with NIH, the National Association of Medical Examiners, the American Board of Medicolegal Death Investigators, and other appropriate professional organizations, should establish a Scientific Working Group (SWG) for forensic pathology and medicolegal death investigation. The SWG should develop and promote standards for best practices, administration, staffing, education, training, and continuing education for competent death scene investigation and postmortem examinations. Best practices should include the utilization of new technologies such as laboratory testing for the molecular basis of diseases and the implementation of specialized imaging techniques.

(d) All medical examiner offices should be accredited pursuant to NIFS-endorsed standards within a timeframe to be established by NIFS. (e) All federal funding should be restricted to accredited offices that meet NIFS-endorsed standards or that demonstrate significant and measurable progress in achieving accreditation within prescribed deadlines. (f) All medicolegal autopsies should be performed or supervised by a board certified forensic pathologist. This requirement should take effect within a timeframe to be established by NIFS, following consultation with governing state institutions.

12. Congress should authorize and appropriate funds for the National Institute of Forensic Science (NIFS) to launch a new broad-based effort to achieve nationwide fingerprint data interoperability. To that end, NIFS should convene a task force comprising relevant experts from the National Institute of Standards and Technology and the major law enforcement agencies (including representatives from the local, state, federal, and, perhaps, international levels) and industry, as appropriate, to develop: (a) standards for representing and communicating image and minutiae data among Automated Fingerprint Identification Systems. Common data standards would facilitate the sharing of fingerprint data among law enforcement agencies at the local, state, federal, and even international levels, which could result in more solved crimes, fewer wrongful identifications, and greater efficiency with respect to fingerprint searches; and (b) baseline standards—to be used with computer algorithms— to map, record, and recognize features in fingerprint images, and a research agenda for the continued improvement, refinement, and characterization of the accuracy of these algorithms (including quantification of error rates).

13. Congress should provide funding to the National Institute of Forensic Science (NIFS) to prepare, in conjunction with the Centers for Disease Control and Prevention and the Federal Bureau of Investigation, forensic scientists and crime scene investigators for their potential roles in managing and analyzing evidence from events that affect homeland security, so that maximum evidentiary value is preserved from these unusual circumstances and the safety of these personnel is guarded. This preparation also should include planning and preparedness (to include exercises) for the interoperability of local forensic personnel with federal counterterrorism organizations.

Accreditation and Certification

Accreditation ASCLD/LAB 396 Laboratories in the US accredited QA/QC Voluntary

http://www.ascld-lab.org/

http://thename.org/index.php http://www.abpath.org/ http://www.criminalistics.com

Here are just a few examples of accreditation and certification bodies that are available to laboratories and individual scientists.

Accreditation and Certification

https://www.theiai.org

https://afte.org

https://www.criminalistics.com

Certification Written Examination

Some also have a practical portion Proficiency Testing (Yearly) Multiple disciplinary organizations

Here are a few of the examples of certification programs available to individual forensic scientists.

Accreditation and Certification

What is the difference between accreditation and certification?

Accreditation: This is a process that the forensic laboratory undertakes voluntarily) to show the public that they meet certain international standards of evidence handling and processing. Some benefits that the laboratory receives from being accredited are: 1.Federal grant money 2.Ability to participate in CODIS 3.The appearance to the public and the courts that the laboratory is held to a higher accountability 4.Having/using standardized policies and procedures that help scientist perform their job and minimize errors and bias

Certification: This is a process that an individual forensic scientist undertakes (usually voluntarily) to show their proficiency in either a specific field of forensic science or their general knowledge of forensics. Some of the benefits or personal certification can/may include: 1.Promotion/pay raise 2.Opportunities for advancement 3.Since the tests are internationally standardized it’s a way to know in the scientific community the level of competence that one as attained if they hold

certifications 4.The appearance in court that the individual is competent to testify as an expert 5.Personal career goals

The Odd Couple

The Adversarial System vs. The Scientific Method

Legal system relies on precedent; slow to change.

Precedent – what earlier courts have decided in similar cases.

Science is dynamic, ever-improving, and self- correcting.

The US court system is an adversarial system where you have the defense and the prosecution debating the case before a jury of the defendants peers. The scientific method relies of the testing of evidence to determine what results can be reported about the evidence. The two systems are opposites on a continuum. The legal system is very slow to change, relying on case law that goes back in some cases more than 100 years. On the opposite side, the scientific community is quick to adopt new technology if it improves results or efficiency.

Legal Proceedings

Civil Cases – individuals Patent Infringement

Preponderance of evidence (51%)

Criminal Cases – government and individual Violation of criminal laws

Felony/Misdemeanor

Guilty beyond a reasonable doubt (99%)

Jurisdictions Different legal rules and procedures

Civil cases usually involve private disputes between persons or organizations. Criminal cases involve an action that is considered to be harmful to society as a whole (hence, these are considered offenses against the "state" or the jurisdiction of the prosecution). These two types of cases are processed differently.

Federal Court Jurisdictions: https://www.uscourts.gov/about-federal-courts/federal-courts-public/court-website-links

State of Alabama Court Jurisdictions: https://www.alacourt.gov/JudicialCircuits.aspx

Legal Proceedings: Roles

Trier/Finder-of-fact

Prosecution/Plaintiff Prosecution: Bears the burden of proving a defendant guilty beyond reasonable doubt

Plaintiff: Prove case by preponderance of the evidence

Defendant

Forensic scientists can testify on either side.

We all have a pretty good idea of how the court process works. What people may not realize is that a forensic scientist may be called to testify for either the prosecution or the defense. Depending on the results that are reported, either side may think that it helps their theory of what happened in the case. As part of the discovery (where the prosecution has to turn over to the defense all the information that they’ve uncovered in the case), the defense receives a copy of the the forensic reports from the crime laboratory. Some states have depositions, where the defense can meet with the scientist prior to the trial and under oath (and on record) ask questions about their analysis of the evidence.

Forensic Scientist’s Day in Court Analysis->Report->Subpoena

Voir Dire Voir dire

Background, training, experience

Direct Examination Lay foundation for the admissibility of the evidence in question

Cross Examination Discredit witness or evidence

Re-direct/Re-cross

Ethics

No one code of ethics The American Academy of Forensic Sciences

Difference of opinion ≠ Unethical Present and defend

Bias Prosecutorial bias

Report results as they are

North Carolina versus Michael Peterson

Although there isn’t one set of ethics in forensics, most forensic scientists are under several organizations that have their own code of ethics. Here are a few that I have to follow:

ANAB Code of Ethics - http://www.pbso.org/qualtrax/QTDocuments/1130.PDF

AFTE Code of Ethics - https://afte.org/about-us/code-of-ethics

IAI Code of Ethics - https://theiai.org/docs/code_of_ethics.pdf

FDIAI Code of Ethics - https://www.fdiai.org/code_of_conduct.php

Chapter 1 Summary Forensic science roots are deep

19th century mostly in Europe

Development by “Generalists”

Modern Forensic Laboratory

20th century

Public or Private Laboratories/Consultants

Interaction with legal systems varies Importance in accreditation and certifications Ethical codes