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Human judgment stands at the center of criminal justice. Forensic science is no exception; it is the human examiner who is the main instrument of analysis in most forensic disciplines. It is the forensic expert who compares visual patterns and determines if they are “sufficiently similar” to provide evidence that they originate from the same source (e.g., whether two fingerprints were made by the same finger, whether two bullets were fired from the same gun, whether two signatures were made by the same person). Such determinations are governed by a variety of cognitive processes. Without objective scientific criteria and quantification instruments, these judgments are subjective.
The cognitive nature of subjectivity is that it can be influenced and biased by extraneous contextual information. Forensic scientists work within a variety of such influences: from knowing the nature and details of the crime to being indirectly pressurized by detectives, from seeing the “target” to working within and as part of the police, from computer generated meta-data to appearing in courts within an adversarial criminal justice system, and so on and so forth – the contextual influences are many and they come in many forms, some of which are subtle. After over 100 years of using forensic evidence, only recently has the forensic community begun to acknowledge the role of cognition and bias in forensic work, establishing a new field we term as Cognitive Forensics.
Cognitive forensics does not only refer to issues of interpretation and bias, but includes a whole array of cognitive issues relating to forensic work. Therefore, Cognitive Forensics deals with how cognition relates to forensic science and how cognitive knowledge can guide and enhance forensic work. In this research paper, we provide some cognitive background, illustrate their relevance to forensic domains, show different types of contextual influences, and suggest ways of minimizing their effects so as to increase objectivity in forensic science and enhance its value.
Fundamentals Of Human Cognition
People, in everyday life and in their professional work, process information. We hear, see, touch, and receive input information from a variety of sources. The brain and cognitive system process this information and often produce an output in a form of a decision or an action. The information coming into the cognitive system is processed as “bottom-up” information. One of the things that make humans intelligent is that they do not process such information in a vacuum. Along with the “bottom-up” components, the human cognitive system uses a variety of “top-down” processes. These include past experience, knowledge, expectation, and a variety of other factors that take part and greatly influence how incoming information is processed.
Top-down cognitive information processing is widespread and takes part in most cognitive operations. This is critical because the brain has limited information processing capacity, and the top-down processing helps to deal with the huge amount of information coming into the brain. The incoming bottom-up input is too much information for the brain to fully process, and a variety of cognitive mechanisms, such as selective attention, chunking, and automaticity, enable the brain to effectively handle the bottom-up information.
These top-down mechanisms stand at the core of human intelligence and expertise. For example, cognitive attention mechanisms select the more relevant and important information based on our past experience, context, expectations, and a whole host of top-down information. While certain information is selected, other information is ignored and disregarded.
As we gain more experience and knowledge, our top-down cognitive mechanisms get more and more powerful, until we eventually become experts. Expertise entails top-down cognitive mechanisms that improve performance and result in superior abilities.
However, with more and more reliance on top-down cognitive mechanisms and more effective information processing, potential weaknesses and vulnerabilities arise. Expertise and top-down processes entail computation trade-offs, and they – along with overall superior performance – can also result in restricted flexibility and limited control, may cause the experts to miss and ignore important information, introduce tunnel vision and bias, and can cause other effects that degrade performance and can result in error. Such phenomena are not specific to forensic experts, they are inherent cognitive side-effects of expertise, per se, and are a professional challenge in the medical domain, as well as in the military, policing, and other highly skilled expert domains (Dror 2011).
It is important to emphasize that the nature of the cognitive mechanisms that cause the vulnerabilities work at a level without awareness, meaning that the experts do not intentionally and consciously take these actions. They take place automatically and without awareness. This is critical, because not understanding the underlying cognitive mechanisms involved in these phenomena often results in ineffective ways to countermeasure their effects. For example, considering cognitive biases as an ethical issue is not only an ineffective way of combating them but is also unfair to the experts because it suggests that they are doing something wrong intentionally and that they can stop doing it by mere willpower – a misconception and misunderstanding of the very nature and mechanisms of cognitive bias (see, e.g., Page et al. 2012).
Although forensic evidence is very powerful and important in criminal justice, we need to understand its limitations and to improve it based on cognitive understanding of its vulnerabilities. Objectifying forensic investigations through data based analyses is an important development; however, it is not sufficient. Since the forensic examiner is the main instrument of analysis in many, if not all, forensic impression and pattern evidence disciplines, cognitive factors play a major role in forensic casework, stressing the need for Cognitive Forensics: A field that overarches the different forensic disciplines and addresses a whole range of cognitive issues that relate to forensic work.
This is because the evidence from the crime scene (be it a fingerprint, a bullet, a handwritten note, etc.) does not ever match the suspect perfectly – there are always variations and thus they are never totally identical. It is up to the forensic examiner to determine the evidential strength with respect to the question whether they come from the same source or not – based on their relative similarity. However, there is almost always no objective instrumentation or quantitative data available to determine the evidential strength of the comparison (e.g., “sufficient similarity” or discrepancies that can (or cannot) be explained). It is to some degree subjective and in the “eye of the beholder.” Therefore, the cognitive mechanisms of the human examiner play a critical role in this determination – the new area of Cognitive Forensics.
Cognitive forensics not only plays an important role in the final determination of forensic identification, but even in the initial analysis of the evidence. For example, when expert fingerprint examiners determine the minutia features in a fingerprint, they do not only differ among themselves, but the same expert – examining the same prints – often vary in the features they find. Therefore, the lack of objective criteria in some forensic disciplines introduces not only inter-examiner inconsistencies but also intra-examiner inconsistencies (Dror et al. 2011; Ulery et al. 2012).
As we discussed earlier, the cognitive top-down mechanisms play a large role in such expert determinations, and because they are susceptible to influences, expert forensic examiners may be biased, as we detail below. However, it is important to emphasize from the onset that such influences affect different examiners in different ways and that they are most powerful in difficult and hard to call cases (e.g., in DNA mixture interpretation; see Dror and Hampikian 2011). Furthermore, the existence of influences and bias does not mean that it determines the final decision outcome. There are many factors that are involved and they interact with each other in a variety of ways.
Forensic traces, by their very nature, are often collected at crime scenes, and therefore are often far from ideal. These traces may then become evidence examined by forensic examiners who in most cases are part of the police or work within an adversarial legal system (see Giannelli 1997; National Academy of Sciences 2009). The examiners cognitive processes, subjectivity, and susceptibility to contextual influences has not been well understood by the forensic community for a long time, and therefore appropriate measures have not been taken. For example, often the examiners are exposed to a whole range of contextual information which is sometimes irrelevant and not needed for their work, but may affect and bias their judgments.
It is important to realize that much of this contextual information, like confessions, eyewitness testimonies, and outcomes of other forensic investigations, may well be very important for the case, that is, for the judge or jury to reach their ultimate decision (or even for the detective, to determine lines of investigation, etc.), but not relevant to – and potentially psychologically contaminating – the forensic examiner. What the forensic expert can provide is a piece of the puzzle: The evidential value of their forensic evidence, based on estimates of the probabilities of the evidence given at least two hypotheses. This evidential value determination can then be used by others (e.g., a judge, jury, detective) to make legal or investigatory decisions. One probabilistic framework to do this is the Likelihood Ratio approach for the interpretation of forensic evidence (see Evett 1998; Stoel and Sjerps 2012), and the forensic science community is slowly progressing toward such an approach.
Four things have contributed to the emergence of Cognitive Forensics:
Theoretical work based on cognitive science understanding of the brain and the cognitive system, and research in other expert domains, has suggested that forensic science work may be affected by extraneous information and may be biased. Such work covers many forensic domains and some of it goes back a long time. For example:
• In handwriting, back over a hundred years – Hagan (1894) suggested that “Where the expert has no knowledge of the moral evidence or aspects of the case in which signatures are a matter of contest, there is nothing to mislead him, or to influence the forming of an opinion.”
• In fingerprinting, also a hundred years ago – Faulds (1912) suggested that “In finger-print cases… mistakes may be made… overanxiety to prove his case that may distort his view.”
• In forensic odontology, “It appears that the current practice of bitemark analysis is rich in sources of potentially biasing influences… fundamental recognition that some form of bias is likely to exist” (see Page et al. 2012).
• In fire investigation, “Various circumstances conspire to make fire scene cause and origin investigation particularly susceptible to the affects of cognitive biases” (see Bieber 2012).
A landmark paper theoretically addressing these issues was a 2002 paper by Risinger, Saks, Thompson, and Rosenthal, which discussed “observer effects.” It made the theoretical case that based on cognitive and social psychology many forensic examination results are doubtful because they are vulnerable to distortion by the context and the state of the forensic examiner. Empirical Research
There has been sporadic and anecdotal empirical research examining whether forensic examiners are indeed affected by contextual information. This research consisted of an experimental set up that involves showing different examiners evidence within different contexts as part of a research or training (e.g., document examination (Miller 1984), fingerprinting (Langenburg et al. 2009), and hair examination (Miller 1987)). Such between-subject experimental design compares different examiners, and therefore results can be attributed to individual differences among the different examiners.
A strong demonstration of biasing effects in forensic science was established in 2006 when data was collected from examiners as routine casework without their knowledge. This is very critical, because when examiners are not doing casework and taking part in research, they perform differently. As Dror and Charlton (2006) state “If you want to know how people drive, then their performance during a driving test is not very insightful and revealing, neither is their driving when they know they are near speed cameras or radars. One must try to observe and examine performance as well as collect data in the normal routine setting with minimal (or no) knowledge of the people involved” (p. 604).
This is especiallyvital when studying contextual influences – for them to affect performance, theparticipants must really believe them. This occurs in real casework, but not incontrived experiments. Furthermore, and perhaps critically important, in Droret al. (2006) and Dror and Charlton (2006) studies, the same experts examinedthe same exact evidence on two different occasions (see Fig. 1). Depending onthe difficulty of the case, the level of contextual information, and the typeof conclusion, some examiners reached different decision outcomes. With allbeing equal (same examiners, same evidence) except the contextual information,one can confidently attribute the different conclusions to the effect ofcontext.
Although these studies (as well as others) have found bias in forensic science, other studies have not found such affects. The existence of the latter studies with null findings, along with potential criticism of the former studies (e.g., small sample sizes) may suggest that there is no definite proof that forensic investigations are affected by contextual information. However, one must understand and remember that:
1. The existence of bias in forensic science is not only based on research in forensic science, but it rests on a large amount of theoretical and empirical research in a variety of expert domains, as well as on understanding the brain and cognitive mechanisms involved in expertise and making such decisions.
2. The existence of bias does not mean it necessarily affects the final forensic determination. As we state earlier, there are many factors that affect the forensic decision and interact with bias (such as difficulty of the case, type and strength of the bias, the examiner). Therefore, although bias affects the decision process, it does not necessarily affect the decision outcome.
Errors In Casework
Along with the theoretical and empirical research, a number of high-profile cases of errors in forensic identification brought attention to contextual influences and bias in forensic science work. Perhaps the most influential case was of Brandon Mayfield. He was incorrectly identified as the Madrid bomber by a number of FBI fingerprint examiners. A number of inquiries into this case all concluded that bias was a contributing factor.
The Office of the Inspector General (2006) inquiry concluded that “a significant cause of the misidentification was that the LPU examiners’ interpretation of some features in LFP 17 was adjusted or influenced by reasoning “backward” from features that were visible in the known prints of Mayfield. This bias is sometimes referred to as “circular reasoning,” and is an important pitfall to be avoided” (p. 7), and “working on a high-profile case influenced Green’s initial judgment and created a mind-set in which his examination became biased by an expectation that the prints were a match” (p. 128).
Inquiries And Expert Working Groups
There have been a number of official inquiries into specific errors of forensic identification that further established the area of Cognitive Forensics. For example, the recent inquiry into the McKie erroneous identification (Campbell 2011) Recommendation 8 (Para 35.139) states that: “The SPSA should consider what limited information is required from the police or other sources for fingerprint examiners to carry out their work, only such information should be provided to examiners, and the information provided should be recorded” (p. 741), as well as “The SPSA should review its procedures to reduce the risk of contextual bias” and “The SPSA should ensure that examiners are trained to be conscious of the risk of contextual bias” (Recommendations 6 and 7 (Para 35.137 and Para 35.138), p. 741).
There have also been general inquiries into the state of forensic science. Most notable is the US National Academy of Science Inquiry. It concluded that: “a body of research is required to establish the limits and measures of performance and to address the impact of sources of variability and potential bias. Such research is sorely needed, but it seems to be lacking in most of the forensic disciplines that rely on subjective assessments of matching characteristics. These disciplines need to develop rigorous protocols to guide these subjective interpretations and pursue equally rigorous research and evaluation programs. The development of such research programs can benefit significantly from other areas, notably from the large body of research on the evaluation of observer performance in diagnostic medicine and from the findings of cognitive psychology on the potential for bias and error in human observers” (National Academy of Sciences 2009, p. 8).
Furthermore, a number of professional working groups have been established to examine these issues. The US National Institute of Standards and Technology (NIST) and the US National Institute of Justice (NIJ) have jointly formed a working group consisting of a large group of leading scientists and practitioners to examine these issues. After 2 years of work, this working group has acknowledged these issues and the need to deal with them.
The Forensic Regulator in United Kingdom recently concluded that “cognitive bias (also referred to as contextual bias or observer effects) is an issue that is relevant to forensic science” and that “organisations who undertake fingerprint examination should demonstrate within their accredited quality management system that they understand the potential for cognitive bias and build into their technical procedures safeguards to minimise the risk of bias and peer pressure” (Forensic Regulator 2011, p. 12).
Wider Influences On Criminal Justice: The Biasing Snowball Effect
The growing acknowledgment that bias may play a role in forensic work has helped establish the area of Cognitive Forensics and its importance. However, Cognitive Forensics does not stand alone in isolation. It affects the rest of the criminal justice system, which then affects it back, by what we term the “Biasing Snowball Effect.” Many lines of evidence play a role in criminal justice, not only a variety of different forensic domains but also other lines of evidence, such as eyewitnesses and confessions. These should all be independent, but in reality, they can often affect and bias each other, resulting in a violation of evidentiary independence.
A firearm examiner, for example, knowing that the suspect’s fingerprint was found on the gun, may be biased in their investigation of the bullets. Across lines of evidence, knowing the findings of one line of evidence can contaminate and bias another line of evidence. For instance, take the Willingham case in Texas, where erroneous forensic arson conclusions influenced eyewitness testimonies (Grann 2009), or the Jackson case in Las Vegas where an innocent person confessed to a crime he did not commit because of erroneous DNA identification (e.g., Mower and Mcmurdo 2011).
Bias may effectively give the right conclusions, but for the wrong reasons. So, although it may be “helpful” in some ways, it can also cause and reinforce miscarriages of justice (see examples above). Thus, by taking into account contextual information, forensic experts may well become more likely to interpret their evidence correctly, in the sense that they reach a conclusion that correspond to what actually happened. However, in doing this, the ability of the trier of fact to determine the truth is undermined. The crux of this criminalist paradox is that “By helping themselves be ‘right’ such analysts make it more likely that the justice system will go wrong. By trying to give the ‘right’ answer, they prevent themselves from providing the best evidence” (Thompson 2010, p. 130), therefore undermining themselves as objective scientists as well as their role in the judicial system.
Minimizing the effects of bias and other contextual influences is important and needed in forensic science. Nowadays, with the growing acceptance that these issues are real and relevant, it seems appropriate to take steps to deal with and countermeasure them. With increased implementation of such steps, they should be the accepted norm, and forensic evidence from laboratories that will not take such actions should be treated with doubt and reservation.
Best Practices And Standard Operating Procedures
The everyday working procedures of forensic laboratories must take into account bias and cognitive influences. As a first step, forensic examiners should not be exposed to information that is irrelevant to their work but that can bias them (for example, whether or not the suspect confessed to the crime or not, whether or not there are eyewitnesses or other evidence against the suspect, what the investigating detective thinks, and many other case details). It is relatively easy to deal with this kind of bias.
More complex situations arise when information that is potentially biasing may also be relevant to the examiner’s work. In such cases, one must consider the relative importance of this information vs. the relative biasing influences it may have. If such a cost-benefit analysis does not provide clear results, one can examine whether or not this information makes a difference by giving this additional information only after initial conclusions have been reached. If the conclusion is maintained with this extra information, then that strengthens the results; if the new information suggests revising the conclusion, then the examiner must explain and detail the reasons. These types of procedures force to detail and account for the cognitive factors in the forensic decision making processes (Dror 2012).
There are more complex types of biases, some of which are very difficult to combat, for example, base rate information. Base rate information is organization and discipline-specific information by means of which estimates may be made about the outcome prior to any investigation. For example, in airport security, the X-ray examiners have a base rate information that bombs will be detected very rarely. In the criminal justice system, for example, base rate information can cause a very high expectation for verification.
Best practices may involve artificially inserting fake cases into the normal workflow (with opposite conclusions) to the control and counter the effect of base rate information (Dror 2009). Such solutions are easy to implement in some domains, for example, using Threat Image Projection (TIP) software that occasionally adds threat items, such as knives and guns, to routine airport X-ray of ordinary bags (Schwaninger 2006). In forensic science it may be more tricky to implement because of the difficulty to create realistic cases, with the experts not being aware that the case under consideration is a fake case.
It is important that bias minimizing procedures, like context management, are both cognitively informed and pragmatic. They must be cognitively informed because forensic examiners who do not specialize in human cognition are limited in their ability to develop procedures to deal with bias. One must understand these phenomena in order to determine the best way to deal with them. On the other hand, cognitive scientists do not understand the realities of forensic laboratories and can come up with unrealistic procedures that cannot be implemented. Therefore, a cooperative effort between forensic practitioners and cognitive scientists is needed in order to move forward effectively.
Best practices and appropriate procedures are critical, but without training their effectiveness is limited. Forensic examiners must understand the reasons and cognitive science behind the procedures and why they are needed. Training about cognitive factors in making forensic comparisons is essential. Indeed, forensic laboratories in different countries have begun to provide such training to their forensic examiners (e.g., New York and Los Angeles in the United States, Victoria Police in Australia, Greater Manchester Police and the London Metropolitan Police in the United Kingdom, and the Netherlands in Europe).
However, most forensic laboratories do not provide cognitive training to their examiners. As a result, most examiners lack cognitive understanding and its role in their work. An example of that is that a common, but incorrect, believe among forensic examiners is that cognitive bias does not affect them (i.e., they can be exposed to contextual information without being affected – see Dror et al. 2013 for debating this issue), or that bias is an ethical matter and that it can be dealt by mere will power (e.g., Thornton 2010).
Furthermore, proper cognitive training can help examiners understand when bias is most influential. This is important as it enables not to treat all cases in the same way, requiring the same bias countermeasures to be taken, thereby helping to selectively apply rules that are fit to purpose. A triage approach can be a practical and effective way of combating potential bias (for details, see Dror 2009).
Technology can be an important ally in combating bias. Computers carry out their algorithms “blind” to context. However, one must remember that they are programmed by humans and therefore may have biases within their algorithms. Furthermore, the technology may bias the human examiners working with it.
For example, Automated Fingerprint Identification Systems (AFIS) provide a list of potential candidates for the human experts to examine. However, recent empirical research has revealed that forensic experts are biased by this meta-data: They spent less time as they go down the list and are biased that if there is a correct match it will be at the top of the list. Therefore, they are more likely to make an erroneous identification on fingerprints that are on the top of the list and miss identifications that are lower down on the list (Dror et al. 2012).
Such technology-induced bias can be effectively reduced by providing shorter lists, by randomizing the order of candidates, or by planting correct matches further down the list as test cases to cognitively engage the examiners and as a quality control measure. This is just an example of how cognitive research and understanding is important for forensic science, not only to identify problems but also to provide solutions.
Being a forensic scientist is a highly sought-after profession, and many people apply to get into this domain. Nevertheless, there are not enough scientifically based and validated tests that quantify the specific abilities needed for doing the job. Most laboratories do not use any testing, and those who do, either use general tests that do not measure the specific abilities that are needed for the job, or they use inappropriate forensic evidence as test items. For example, many latent print laboratories use a test called Form Blindness. However, this test is built to test defects, not for quantifying special abilities and talent to perform fingerprint examination. This is not only a conceptual and theoretical difference, but it has practical implications. For example, “defect” testing, such as visual acuity and the Form Blindness test, should only test for minimal threshold requirement (i.e., if you do not pass, you should not be a fingerprint examiner). Such “defect” testing does not provide scores that enable to judge and rank the relative talent of the candidates. Furthermore, the Form Blindness test was developed over 80 years ago. This is decades before cognitive psychology had even emerged and very long before brain scans and other cognitive neuroscience tools and methodologies had been developed. In the past 80 years, our knowledge and understanding of the human brain and the cognitive system, and in particular visual cognition, has increased substantially. And finally, it lacks proper validation even in the area it was designed for implementation and use, that is, for handwriting examination.
It is important that forensic disciplines to have tests that are scientifically developed and validated to select the right people for the profession. Such tests should measure the specific abilities and skills needed to do the job, that is, the raw talent.
Finally, more research is needed to understand how cognition relates to forensic work and how it can benefit forensic science (for example, when considering what factors determine the effects of bias (the examiners, difficulty of the case, types of bias, etc.) and how they interact). Through better understanding of these cognitive phenomena, we can determine how forensic science can best countermeasure their effects.
For example, the use of ACE (Analysis, Comparison, and Evaluation) in fingerprints (similar approaches exist in other forensic disciplines) is often not carried out linearly, one step at a time, sequentially, and independent of each other. In the initial, “Analysis” stage of ACE-V, a latent is assessed for its suitability for comparison. Suitable prints are then compared to potential matching prints. Cognitive understanding suggests that suitability judgments may differ in the presence of a comparison print due to the cognitive influence of contextual information (e.g., Folk et al. 1992; Awh et al. 2012).
We suggest that the ACE be conducted (and documented) linearly and sequentially, each phase independent of each other (see Dror 2009, for details). Although most laboratories do not subscribe to linear ACE, such changes have been implemented by the US Federal Bureau of Investigation (FBI) and the Netherlands Forensic Institute (NFI). For example, the revised Standard Operating Procedures (SOPs) of the FBI “include some steps to avoid bias: examiners must complete and document analysis of the latent fingerprint before looking at any known fingerprint” and “instructs examiners conducting analysis of a latent fingerprint to analyze it for evidence of distortion, determine whether it is ‘of value,’ and document the data used during analysis” (OIG 2006, p. 27).
Because the initial latent analysis in isolation may lack the benefit of direction guided by the comparison print, Dror (2009) suggests that examiners may be allowed to return and revisit the analysis stage, but they must document and justify it. Indeed, the Office of the Inspector General (2011) clearly takes this cognitively informed approach on board, citing this approach in its report: “a solution to bias may be requiring initial analysis of the latent fingerprint in isolation from the known fingerprints, but also permitting, with clear and detailed documentation, some ‘reanalysis’ of the latent print after comparison” (p. 28). A recent Expert Group set up by the National Institute of Standards and Technology (2012) has reached similar conclusions and has recommended that: “Modifications to the results of any stage of latent print analysis (e.g., feature selection, utility assessment, discrepancy interpretation) after seeing a known exemplar should be viewed with caution. Such modifications should be specifically documented as having occurred after comparison had begun” (Recommendation 3.2; see National Institute of Standards and Technology 2012). Furthermore, Dror recommends that examiners be restricted to the extent that such reanalysis be allowed (e.g., that “clear” features during analysis not be changed, but “ambiguous” ones can benefit from hindsight cognitive attention); for details, see Dror (2009).
This is an example of how research and cognitive understanding can directly suggest practical ways to enhance forensic work. Cognitive forensics, the domain of using such cognitive insights to enhance forensic science, covers a whole range of issues because human cognition plays many roles in forensic work.
Summary And Conclusions
Forensic evidence is an important component of criminal justice. However, it still often lacks objective criteria and quantification instruments and remains therefore subjective. With subjectivity comes the potential of being influenced and biased by extraneous information. Erroneous identifications, theoretical and empirical research, and official inquiries – all in the past few years – have made these issues very apparent. There is growing understanding and acceptance of these issues by the forensic community, which we term Cognitive Forensics.
Cognitive forensics cuts across forensic science and addresses the examiners – which are the instrument of analysis. It focuses on the underlying cognitive processing and how this can be optimized to produce the highest possible forensic results. With the growing field of Cognitive Forensics, more and more improvements will emerge which will help support criminal justice through strengthening forensic science.
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