The examination of physical and behavioral evidence is integral to criminal investigations, to court proceedings, and ultimately to achieving justice. Where these are concerned, the examination assists with the determination of what happened, of whether or not a crime has actually taken place, and with suspect elimination. As more certain inclusionary evidence is developed, it can be used to facilitate the identification, arrest, assessment, defense, and prosecution of criminal defendants. Certainly there are other uses during the investigative and trial interval, but these are primary.
The examination of physical and behavioral evidence has tremendous value in postconviction work as well. New physical evidence, evidence of forensic fraud, and the lack of adequate access to forensic examinations can be used to set aside guilty verdicts and even exonerate criminal defendants entirely. Suffice it to say that the examination of physical and behavioral evidence by forensic scientists not only is integral to criminal prosecutions, but also is equally important with respect to identifying miscarriages of justice.
Consequently, forensic scientists have an obligation to be ethical stewards of the evidence that they are charged with appraising. This requires knowing their proper roles and responsibilities, understanding the mandates of scientific integrity, and maintaining an ethical character.
Forensic Scientists
Forensic scientists examine and interpret physical evidence using scientific principles and methods with the expectation of providing sworn courtroom testimony regarding their findings. It is this feature that distinguishes the forensic scientist from all other scientific examiners and investigators. Those scientists, who conduct examinations without this expectation, or without its potential, are generally not considered forensic by nature.
Forensic scientists exist across a broad spectrum of professions, including (but not limited to): laboratory criminalistics, forensic pathology, forensic toxicology, forensic biology, firearm and tool mark examination, forensic odontology, crime reconstruction, forensic criminology, forensic psychiatry, and forensic psychology. The majority of forensic scientists in the United States are employed by, or under the direction of, law enforcement agencies and the prosecution. The remaining number work for nonlaw enforcement government agencies, for educational institutions, and in the private sector.
Contrary to public perception, not all forensic examinations are conducted by trained scientists or in a crime laboratory; some (e.g., latent fingerprint analysis and footwear comparisons) are conducted on behalf of law enforcement agencies by police officers without a science education or even a forensic science background. A 2009 report by the National Academy of Sciences in the U.S. forensic science community has found that it is fragmented and deficient. The report also determined that there is a lack of scientific research and methodology to support the majority of forensic science findings and related “scientific” testimony, save DNA analysis, which it held up as a gold standard.
The Role of the Forensic Scientist
Whether employed by the prosecution or the defense, forensic scientists are intended to serve as an objective filter within the justice system. They employ physical or behavioral evidence as a tool to sift out case theories that can be either supported or refuted; these findings are meant to be faithfully reported to their clients. The first onus of the forensic scientist, then, is to dispassionately establish the objective facts of a case as determined by a scientific examination of the evidence. It is not to seek out evidence that supports the theories of a particular institution, employer, or side. A forensic scientist works to establish the scientific facts and their contextual meaning with no investment in the outcome. Their job is the education of investigators, attorneys, courts, and juries with these findings, not advocacy for or against the guilt of any particular suspect or defendant.
Scientific Integrity
Irrespective of specific disciplines, a consistent pattern of core scientific obligations associated with the establishment of scientific integrity is evident in the literature. Individual scientists in every area of practice have an obligation to do the following:
- Maintain an ethical professional character
- Embrace empiricism and the scientific method
- Maintain a disposition toward critical thinking and skepticism
- Maintain objectivity and disinterest toward predetermined outcomes
- Show humility toward inherent limitations and uncertainty of findings
- Use logical analysis and argumentation when interpreting findings
- Maintain honesty and precision in reporting, attributions, and authorship
- Maintain openness to peer review to enable independent validation
- Maintain transparency regarding personal conflicts of interest
- Demonstrate fairness in peer reviewing the work of others
- Report the misconduct of others
- Avoid reckless disregard for maintaining scientific integrity
Institutions that employ scientists have an equally important set of obligations with respect to establishing and maintaining an ethical scientific culture. These include the following:
- Employ qualified individuals with ethical professional character
- Provide mentorship and leadership promoting scientific literacy and integrity
- Provide clearly stated practice standards and ethical guidelines
- Provide opportunities for ongoing collaboration, education, and training
- Encourage peer review and self-correcting enterprise
- Quality control, that is, monitoring and evaluating the environment for scientific integrity
- Maintain transparency regarding institutional conflicts of interest
- Exert no pressure on employees to produce results favoring the institution
- Award promotions and pay raises based on scientific competence, not outcomes favorable to the institution
- Maintain zero tolerance for misconduct, investigating all allegations and applying appropriate sanctions
- Provide protection for whistle-blowers
- Avoid reckless disregard for maintaining scientific integrity
While these obligations are not the set limit of what ethical science requires, they are generally accepted as the basic starting point for building and preserving scientific integrity.
Traits of the Ethical Forensic Scientist
In order to carry out their scientific mission, ethical forensic scientists have a fundamental obligation to develop, maintain, and demonstrate impartiality; to acquire knowledge of scientific methodology; and to demonstrate the employment of scientific methodology in their work. Forensic scientists are ostensibly employed because of their oath to advocate for the evidence and its dispassionate scientific interpretation. They 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 advancement or pay be connected to the success of one party over another.
Additionally, there is the corresponding need for maintaining transparency so that others will be able to review and validate any findings that are offered—to ensure the integrity of any facts and evidence relied upon. These are the traits essential to any scientist. They are also those necessary for achieving and maintaining scientific integrity.
The ability to provide sworn expert testimony being integral to forensic examinations, a trustworthy character requirement is also presumptively invoked. Forensic scientists must achieve and maintain the trust of the court in order to be allowed the privilege of giving such evidence. This includes avoiding activities or affiliations suggestive of criminality, a propensity for dishonesty, or poor character—whether past or present. If it can be shown that a forensic scientist cannot be taken at his or her word, or that he or she has a propensity for criminal behavior or affiliations, then the court may exclude their testimony. Ultimately, a forensic scientist that cannot be trusted to testify in court has no value to the criminal justice system.
Cherry Picking
Even when a forensic scientist is capable of maintaining an aura of scientific impartiality, their lack of control over the evidence may cause them to contribute a biased result. Unless they attend the crime scene and observe which items of evidence are collected and which items are left behind, they will be limited to receiving and analyzing only that which has been provided to them. This evidence will have been cherry-picked from the scene by those in charge of collection efforts and laboratory submissions. In other words, the evidence provided to the forensic scientist 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. Under these conditions, a forensic scientist employed by the state is given carefully chosen evidence with a specific request for a specific analysis; rarely is there full knowledge or disclosure of everything that was collected or left behind, let alone a comprehensive reconstruction effort.
The ethical forensic examiner understands this limitation, seeks to ameliorate it when possible, and works to explain its impact on subsequent findings.
Role Strain
The objective mandates of good science are frequently in direct conflict with the needs and expectations of those seeking to engage a forensic scientist. This conflict will create tension in the many roles that forensic scientists are expected to serve (e.g., evidence examiner, supervisor, mentor, police officer, and expert witness). Constantly shifting roles, and the collision of multiple role expectations, can cause what sociologists refer to as “role strain.” This may be defined as the tension that arises from difficulties and contradictions inherent in multiple personal and/or professional roles. Specifically, role strain theory provides that individual strain increases when the demands associated with one role interfere directly with the ability to satisfy the demands of another.
Role strain in the forensic sciences originates from the competing demands and expectations of law enforcement, attorneys, supervisors (sometimes more than one), coworkers, intimate partners (when they are also colleagues or coworkers), and the requirements of objective scientific practice. Even the rule of law as decided by various courts, and related instructions to expertness, can conflict directly with scientific mandates. When forensic scientists’ roles and any related expectations or directives are in conflict, forensic scientists must decide which duty is primary and which set of rules they are going to follow. Theoretically, science should win out, as this will be their source of credibility in any future sworn statements or testimony. In reality, however, acting objectively and skeptically can come at a cost. It can end friendships; it can earn one the derision of colleagues or supervisors; it can hamper promotions and pay raises; it can bring unwanted attention to co-worker errors and institutional failings; it can earn the derision of jurists; and in extreme cases it can even get one fired.
Ethical forensic scientists are aware of their shifting personal and professional roles, and the competing expectations of others. They are, consequently, fully knowledgeable of what scientific integrity demands. Moreover, they are unwilling to compromise their commitment to science despite external pressures, and make it clear to others when their integrity is at risk.
Ethical Issues in Reporting Findings
Forensic scientists are hired to analyze the evidence and objectively report findings, no matter the outcome. Regardless of the side that employs them, ethical forensic scientists will educate their clients as to the strengths, weaknesses, and relevance of the evidence examined. This may be done verbally, with a written report, in formal interviews and sworn depositions, and finally in the form of courtroom testimony. At each step, there are ethical issues and obligations that must be attended.
Brady v. Maryland
Scientists employed by the prosecution have a very specific burden with respect to their findings and what is referred to as due process. The Fifth and Fourteenth 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.” This provision is essentially a fairness requirement. Ideally, citizens may only be tried and punished for crimes alleged by the state under the most impartial and unprejudiced conditions. 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.
In accordance with due process, the U.S. Supreme Court’s ruling in Brady v. Maryland (1963) and its legal progeny mandate that forensic scientists must facilitate equal access to the evidence, subsequent forensic tests, and related results. Ultimately, anything found by the police, government-employed forensic examiners, or the prosecutor’s office must be turned over or made available to the defense if it might have an exculpatory value. This includes an array of evidence, such as information and reports related to each and every forensic examination requested or conducted by the state.
Forensic scientists have an ethical responsibility to ensure that all examinations and results are wholly and effectively communicated to the intended recipients, including investigators, attorneys, and the court. There is no better mechanism than writing it down, which is perhaps the most accepted form of professional communication. This requires the forensic scientist to be competent at the task of intelligible writing. After all, the goal of a forensic examination report is to relay findings in a clear and logical manner. This cannot be achieved with imprecise, sloppy, or poorly crafted writing.
A common Brady violation, often committed out of nothing more than ignorance, is related to the forensic practice of reporting, or failing to report, “inconclusive” results. There are forensic practitioners employed by the government, from fingerprint analysts to DNA technicians, who erroneously believe that inconclusive or indeterminate findings are not an actual result. Therefore, they feel justified in withholding the existence of such examinations or tests and any related outcomes. The consequence of such practices is that there is no mention of related examinations, testing, or findings in their reports, and nothing about it is disclosed to the defense.
In a forensic context, the practice of selecting which results to disclose is dishonest and may be referred to as another form of cherry-picking: selectively reporting (and thereby emphasizing) only desired results or information rather than the entirety of examinations performed and results achieved. Those employed by the state have an ethical obligation to refrain from such partisan practices.
Ethical Issues in Expert Testimony
The ethical forensic scientist will refrain from making any false or misleading statements, especially when giving sworn testimony. This includes testimony regarding education, training, experience, and credentials. It also includes testimony regarding the nature and extent of examinations and testing, the results of examinations and testing, and the contextual meaning of those results.
In comportment with the ethical requirement of honesty, forensic scientists will also refrain from statements or testimony that might be considered perjurious. Perjury is criminal charge. It is 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. A violation of specific criminal statutes, it is not sufficient for a statement to be false to meet the threshold of perjury; it must be an intentionally false statement regarding a material fact—a fact relevant to the case at hand.
Forensic fraud occurs when forensic scientists provide sworn testimony, opinions, or documents (e.g., affidavits, reports, or professional resumes) bound for court that contain deceptive or misleading information, findings, opinions, or conclusions, deliberately offered in order to secure an unfair or unlawful gain. Separate from the concepts of incompetence and error, forensic fraud involves intentionally unethical behavior.
Forensic fraud is no small problem for the justice system. It can result in the conviction of innocents, destroy careers, and create immense financial liability for law enforcement agencies, individual examiners, and the municipalities that employ them. It also creates incalculable expense for the justice system in general.
Forensic scientists have been cross-categorized as having used one or more of three general approaches to committing fraud, and may be referred to as simulators, dissemblers, and pseudoexperts.
Simulators are those examiners who physically manipulate physical evidence or related forensic testing. This means that they physically fabricate, tamper with, or destroy evidence. As the name suggests, they are trying to create the appearance that something happened when it did not, or to create the appearance that nothing happened at all when in fact it did. This approach to fraud also describes those examiners engaging in evidence suppression by concealing its existence (e.g., hiding it in a desk drawer, hiding it on the evidence shelf, removing it from the evidence log).
Dissemblers are those examiners who exaggerate, embellish, lie about, or otherwise misrepresent findings. They are not tampering with the evidence; they are simply not telling the truth about it. Dissemblers exist on a continuum from those who lie outright about the significance of examination results to those who intentionally present a biased or incomplete view.
Pseudoexperts are those examiners who fabricate or misrepresent their credentials. They are also referred to as fakes, phonies, charlatans, and mountebanks. Pseudoexperts exist on a continuum of severity as well, from those with valid credentials who misrepresent a credential or an affiliation, to those with no valid credentials at all.
An Ethical Canon
Various organizations, institutions, and learned scholars have put forth proposed ethical canons for practicing forensic scientists. From those sources, the following general guidelines can be found with some level of consistency, which the forensic scientist is admonished to attend with the following few exceptions:
- To understand and apply the principles of science and logic
- To seek the truth, regardless of where it leads
- To embrace a logical, impartial, and unbiased scientific attitude
- To avoid giving anyone, whether it be a supervisor, a client, a judge, or jury, any false impressions regarding the nature and meaning of findings
- To present findings in an impartial and unbiased manner
- To commit to presenting findings that are correct and true, as a primary concern
- To maintain an attitude of professionalism at all times, despite the emotional content, context, or politics of a given case
- To identify unethical behavior and other forms of professional misconduct whenever it is observed, and to report it to
the appropriate authorities whenever possible
When these ethical responsibilities are not attended by individual forensic scientists, the forensic science community suffers—as does the criminal justice system and society as a whole.
Bibliography:
- Bowen, R. Ethics and the Practice of Forensic Science, Boca Raton, FL: CRC Press, 2010.
- Crowder, S. and B. Turvey. Ethical Justice: Applied Issues for Criminal Justice Students and Professionals, San Diego: Elsevier Science, 2013.
- Giannelli, P. and K. McMunigal. “Prosecutors, Ethics, and Expert Witnesses.” Fordham Law Review, 76 (December 2007).
- Hagan, M. Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of American Justice. New York: HarperCollins, 1997.
- Inman, K. and N. Rudin. Principle and Practice of Criminalistics: The Profession of Forensic Science. Boca Raton, FL: CRC Press, 1999.
- National Academy of Sciences. Strengthening Forensic Science in the United States: A Path Forward. National Academy of Sciences Committee on Identifying the Needs of the Forensic Sciences Community. Washington, DC: National Academies Press, 2009.
- Peterson, J. and M. Hickman. “Census of Publicly Funded Forensic Crime Laboratories, 2002.” Washington DC: U.S. Department of Justice, Office of Justice Programs, 2005.
- Saks, M. J., R. I. Lanyon, and M. Costanzo. Pitfalls and Ethics of Expert Testimony: Expert Psychological Testimony for the Courts. Mahwah, NJ: Lawrence Erlbaum, 2007.
- Thornton, J. I. “Crime Reconstruction: Ethos and Ethics.” In: Crime Reconstruction, W. J. Chisum and B. Turvey, eds. 2nd ed. San Diego, CA: Elsevier Science, 2011.
- Thornton, J. I. and J. Peterson. “The General Assumptions and Rationale of Forensic Identification.” In Modern Scientific Evidence: The Law and Science of Expert Testimony, D. Faigman, D. Kaye, M. Saks, and J. Sanders, eds. St. Paul, MN: West Publishing Group, 2007.
- Turvey, B. Forensic Fraud: Evaluating Law Enforcement and Forensic Science Cultures in the Context of Examiner Misconduct San Diego, CA: Elsevier Science, 2013.
- Upshaw-Downs, J. C. and A. Swienton. Ethics in Forensic Science. San Diego, CA: Elsevier Science, 2012.
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