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Law and science have long had a strained relationship although their tendency to “clash” may have been exaggerated over the years. The source of their disharmony has most often been seen as the result of the two domains having both dissimilar methods and goals. Regardless of the extent to which this is true, there remain apposite and acute concerns regarding the status of science utilized by the law, in particular forensic science and its interplay with criminal law. Without delving into the philosophy of science or law, or the psychology of the courtroom, it is considered here whether legal rules have, and can, prevent flawed scientific evidence from entering the courtroom by empowering judges to rule questioned scientific evidence inadmissible. It concludes that where evidential hurdles for forensic science exist, decisions to permit forensic science into evidence may still appear arbitrary, as well as inconsistent between and within jurisdictions. In addition, such hurdles may come too late in the criminal process to prevent all injustices. Current attempts to regulate forensic science are welcome but do not yet go far enough to ensure that wrongful convictions will not continue to occur, with forensic science and scientists playing a significant role in these miscarriages of justice and judges unable to execute their gatekeeper role effectively and consistently.
The prefix “forensic” simply means the use of science in legal fora: applying science to answer a legal question. Efforts have been made to circumscribe the field of “forensic science,” with the UK’s (now defunct) Forensic Science Service stating that the task of forensic science is “to serve the interests of justice by providing scientifically based evidence relating to criminal activity,” and the definition given in the US Congress Forensic Science and Standards Bill of 2012 3(a): “‘forensic science’ means the basic and applied scientific research applicable to the collection, evaluation and analysis of physical evidence, including digital evidence, for use in investigations and legal proceedings, including all tests, methods, measurements and procedures.” Most often, forensic science is a subdiscipline of a larger scientific body, such as pathology, toxicology, archaeology, or genetics. There are also a variety of “experts” who may be called upon to testify on matters in issue at trial (e.g., forged documents, firearms), each being a “forensic specialist” for the purposes of a criminal trial. There is potentially no limit to the scope of physical evidence (or “trace” evidence) that can be utilized, from the smallest fragment of glass, the most obscured fingerprint, or the tiniest swab of human tissue to the entire scene of a major disaster or the realms of cyberspace. There are, therefore, potentially no limits on the number of disciplines that may be utilized in a forensic investigation. Herein lies one of the pivotal difficulties with forensic science: the multiplicity of techniques, technologies, and disciplines, which can sit under the “forensic science” umbrella, risks over-inclusion. It is this over-inclusion that lies at the crux of some of the frustrations with forensic science. While some forensic technologies are born of rigorous scientific testing and experimentation (the oft-used example being DNA profiling), many others have no, or a minimal, scientific basis or grounding in experimentation and testing.
This variety of disciplines and techniques and their great variances in reliability and validity create an issue for users of forensic science: how to discern between those reliable and valid techniques that can assist, and those that may be insufficiently reliable and valid, and can mislead. So, while on first blush it would appear contradictory to discuss forensic science and judicial oversight alongside wrongful convictions, this question occupies the minds of legal professionals, researchers, practitioners, and forensic experts alike: how can courts ensure that valid and reliable scientific evidence, and only valid and reliable scientific evidence, is adduced during trials, thereby using forensic science to prevent wrongful convictions?
Ruling potentially unreliable or invalid forensic evidence inadmissible at trial, while clearly having an impact on that specific trial, may also have important wider ramifications. If a particular expert, expertise, or evidence type is regularly deemed inadmissible, then police or legal professionals will lose confidence in them and stakeholders may insist upon greater controls or regulation. It may be that, as we have seen in the USA, Canada, and the UK in recent years, political demands are made for changes to the forensic science community. Public confidence in the operation of the criminal justice system is an essential prerequisite of any legitimate legal system, and if forensic science brings that system into disrepute or diminishes public confidence, then the forensic science community should not be surprised if their reputation en masse is tarnished and stricter regulation is insisted upon.
The forensic scientist (or rough equivalent) has been popularly portrayed in both factual and fictional media as a heroic figure in the fight against crime. In the twenty-first century, that portrayal has had to become more nuanced as forensic science has been pinpointed as playing a role in causing wrongful convictions while failing to prevent others. Forensic scientists have been accused of inter alia: negligence, corruption, and perhaps most critically, of not being “scientists” at all.
The growing international “innocence movement” has paradoxically utilized modern forensic techniques and technologies to free innocent prisoners, simultaneously demonstrating the flaws of many forensic techniques that were used to convict those prisoners and the failure of the courts to prevent misrepresented or misinterpreted forensic evidence from being relied upon at trial. Yet wrongful convictions most often result not from a single error but a composite of failures that can include, but are clearly not limited to, the gathering, interpretation, and communication of forensic evidence. It is most often human fallibility that lies at the heart of wrongful convictions. Forensic science can then overcome the failings of many other, unreliable, and often highly questionable evidence types, regularly relied upon at court. For this reason, forensic science cannot fairly be portrayed as the cause of wrongful convictions, as it plays probably a more significant role in prevention and cure; these three roles are considered, before turning to the place of forensic science in the courtroom.
During police investigations, the gathering of scientific evidence cannot prove any one theory of events, or conclusively prove anyone guilty of a criminal offense in isolation of other evidence, but it can be incredibly valuable in explaining events and implicating individuals involved in criminality. Most often, its value can lie in supporting, or refuting, a version of events provided by those deemed to be involved (or by the police, prosecution, or defense). Indeed, forensic science is now considered integral to many criminal investigations, particularly serious offenses, but also “volume” (mostly property) crimes. Forensic science as neutral, objective, evidence is perhaps of most value at the outset of police investigations, where erroneous judgements or false assumptions can send investigators down a blind alley. A piece of scientific evidence gained early in an investigation can ensure that the wrong suspects do not continue to be the center of investigators attentions, thus preventing a wrongful conviction.
Some traditional police “practices,” hopefully now becoming obsolete, have not always leant themselves to ensuring that only the guilty are ever convicted. Many suspects in the past have been “persuaded” to confess, and not only the guilty succumbed to such pressure. Informants were also heavily relied upon, and written police statements were not always entirely accurate.
However, police practices were not always to blame. Police relied – and still do to a greater extent – on witnesses. These may be eyewitnesses, which are considered highly valuable in securing a conviction. However, as psychologists have demonstrated for many years, people can be highly unreliable at the same time as highly persuasive, especially when they truly believe themselves to be telling the truth. There is a wealth of research on how poor human memory is, how bad we are at identifying people (particularly people we don’t know or who are different from us ethnically or in terms of age), how easily we can be persuaded of something or change our recollections to match them with expectations, etc. In short, relying on humans to assist in the detection and prosecution of offenses can be highly problematic, even when those humans are not deliberately lying.
In light of such unreliability, scientific evidence would seem to avoid these “human” problems. There is no need to rely on a person testifying that they saw the defendant at the scene of the crime, if we also have their finger prints found at the scene. There have been numerous cases where eyewitnesses – victims even – have identified with 100 % certainty their attacker, and yet later DNA evidence has proven that they are mistaken. It would seem far safer to rely upon a DNA match of a rapist than the testimony of the victim (certainly if they don’t know their attacker before the crime). Furthermore, the popular (and populist) perception of an almost continuous increase in crime, coupled with a perceived inability on the part of the police to detect criminals or convict them, raises the hope that scientists will be able to tip the justice scales back in favor of the police and prosecution. The growth in forensic science is then based upon the assumption of science as capable of being a neutral, objective, “arbiter of truth” (Dreyfuss and Nelkin 1992: 339). However, uncritical faith can be misplaced, and as scientists themselves warn, “the general public often has an unrealistic expectation of what forensic science can achieve” (Ross 1998: 41).
Yet, forensic science has come to the aid of many wrongfully convicted, most clearly in DNA exonerations, of which there have been over 300 in the USA alone since 1989, with undoubtedly many more to come. The discovery and proliferation of DNA profiling has had a dramatic impact because it has come to be trusted as almost indisputable evidence. The strength of DNA evidence has meant many convictions have been overturned that would have been impossible to overturn otherwise. In some of these cases, DNA has subsequently been used to locate the real perpetrators, sometimes many years after the crime. In just one example, Sean Hodgson spent 27 years in an English prison for a murder that he had confessed to but had not committed. Blood type matching had been used at trial to support Hodgson’s confession, but after DNA testing of the evidence 27 years later, it was proven that he was not the killer and freed. There have now been numerous cases around the world where innocent people have called for evidence to be tested or retested in their cases, in the hope that DNA will finally see justice in their case.
It is not hard when reading of famous miscarriages of justice to find instances of flawed scientific evidence being used to convict the innocent, from terrorist bombers found to have nitroglycerine on their hands, which it later transpired could have been a number of harmless chemicals from many household items, to mothers convicted of killing their babies when they had died of unknown, but entirely natural causes. Such cases exemplify the risks of relying upon techniques or “theories” that are erroneous. While experts in these cases were often castigated after the conviction is overturned, many had continued working and testifying before their mistakes were brought to light. The experts were also singled out as isolated “mavericks” in many instances, providing a scapegoat for the wider scientific community. Many other cases however, have relied upon valid scientific principles, but the expert has provided misleading testimony, often overstating the probative value of their evidence or its reliability.
The Innocence Project in New York has of February 2013 exonerated over 302 people wrongly convicted using DNA testing. In 50 % of those cases, the DNA testing has identified the true perpetrator. An early analysis of the first 86 of those exonerations found that faulty forensic evidence had played a role in two-thirds of the convictions. Latest analysis demonstrates that unvalidated or improper forensic science played a role in approximately 50 % of wrongful convictions later overturned (Innocence Project 2009). In such cases, if available evidence had been subjected to DNA testing, then the suspect would have been excluded and most often, another suspect indicated.
The US National Registry of Exoneration, launched in May 2012 by the University of Michigan Law School and the Center for Wrongful Convictions at Northwestern University, is an online database containing a list of exonerations in the United States since 1989. The registry lists more than 1066 wrongfully convicted individuals and is growing. In an analysis of 873 of these cases, 24% featured false or misleading forensic evidence (Gross and Shaffer 2012). These figures are slightly lower than found by Neufeld and Garrett (2009) in their analysis of 137 trial transcripts of convictions later overturned by DNA. They found experts in 60 % of the cases to have given invalid testimony that overstated the evidence, was unscientific, or contrary to empirical data. They gave instances of erroneous or unsupported testimony about the accuracy and results of forensic techniques including hair comparison, bite-mark comparison, serology, fingerprint comparison, and even DNA testing.
While the work of a forensic expert can take place in any number of environments, particularly when examining crime scenes, for instance, the laboratory is most often the typical workplace of a forensic scientist. However, for forensic evidence to be of utility, it must be able to make the transition from crime scene, via the laboratory, to the courtroom, where it is ultimately used. While much forensic testing will not produce any positive results, or may simply be retained as “intelligence” for possible future use, if test results are not able to be admitted at court as relevant evidence, then the resources used to obtain that evidence will have been wasted. This transition to admissible evidence at trial is then essential if forensic evidence is to be able to play a role in criminal justice.
Experts have been permitted to give evidence in courts for centuries, and their word and expertise have been rarely questioned. Medical men of the middle ages, for example, were often called upon to testify as to their opinion on questions such as cause of death or the sanity of the defendant. Fingerprint experts have, for the last century, been testifying that the prints found at the scene of a crime, for example, “matched” the defendant to the exclusion of all others. However, it has been the massive expansion in forensic science in the last couple of decades, and the increasing incidence of DNA exonerations, that has led to the current paradox being brought into sharp relief. While it has compelling value in preventing and overturning wrongful convictions, forensic science can still also lie at the heart of flawed investigations and trials. In fact, forensic science is introduced to reduce uncertainty and bring objectivity to legal disputes, yet it is increasingly under fire for obfuscation, the introduction of partiality and partisanship, and creating new sites of dispute, that is, for increasing uncertainty rather than alleviating it.
One of the perennial predicaments is that while a technique may have a valid scientific basis and prove reliable in its application, how can it be ascertained that it was correctly applied in this case? What are the error rates associated with the technique that may mean that the testing could be wrong in this particular instance? Furthermore, are there any pertinent factors that could jeopardize the reliability or validity (or both) of the testing in the particular instance? For example, the operator (scientist) is incompetent or unqualified, the technique is novel and untested, contamination has occurred, the provenance of the exhibits or results cannot be attested to, and the results have been misinterpreted. As one can quickly see, the use of forensic science can be a complex and complicating factor in any legal dispute.
As the omnipotent umpire, the judge has the task of ensuring the legality and fairness of a trial, and for as long as experts have been allowed to give evidence, there have been rules regarding the expert’s remit and the special allowances afforded them. In light of the powerful influence of science at trial, efforts have been made to bolster the role of the judge in ensuring that science is only used at trial when relevant and reliable and is represented impartially and accurately for the assistance of the fact finders. This has led to the common representation of judges as “gatekeepers,” guarding the doors of the courts to ensure that invalid or unreliable science cannot enter. This could be argued to be the most obvious way to keep “junk” or bad science from admission at trial, but there are complicating factors. These are not limited to the fact that judges themselves are fallible, not always as impartial as one might hope, and rarely have a scientific grounding upon which to rely when ruling. The ability of judges to interpret and apply “correctly” (assuming there is a “correct” decision) complex exclusionary rules is further complicated by the difficulty of the task itself and the clarity, or otherwise, of the rules.
In a survey of 400 judges on their understanding and acceptance of their role as “gatekeeper,” Gatowski et al. (2001: 443) found that 91 % believed the role was appropriate. Those doubting believed that judges had insufficient scientific training, making the role “‘difficult, untenable, or inappropriate’” (Gatowski et al. 2001: 444). Indeed, the researchers found judges equally divided on whether their education adequately prepared them to deal with scientific evidence, many stating that the extent to which judges could properly apply criteria to judge scientific evidence was “questionable at best” (Gatowski et al. 2001: 451–452). The authors concluded that the lack of scientific literacy among trial judiciary, and the increasingly complex nature of the science coming before courts, demonstrates a need for more science-based judicial education (Gatowski et al. 2001: 455). While a laudable aim, the exclusionary rules themselves have been widely criticized (there is a substantial literature but, e.g., see Edmond (2000); Risinger (2000–2001); Danaher (2011)). These differ between jurisdictions with the USA, Canada, Australia, and the English courts all making attempts to improve the exclusionary rules applying to expert evidence, some meeting with more success than others. Some of the important cases are discussed below.
The USA, perhaps unduly, has earned a reputation as both a highly litigious nation and one that has most utilized “junk” science to ensure a favorable legal outcome for clients, in particular in multimillion dollar “toxic tort” civil cases. Indeed, in the decades leading up to one particular toxic tort case, that of Daubert v Merrell Dow Pharmaceuticals 509 U.S. 579 (1993), there was a great deal of controversy over the perceived “flood of ‘junk’ science that, according to some popular critics, threatened to inundate the courts” (Beecher-Monas 1998: 58). The so-called Daubert case was the progenitor of two further cases which have come to be known as the “Daubert trilogy” (the other two being General Electric Co. v Joiner, 522 U.S. 136, 118 S Ct. 512 (1997) and Kumho Tire Co. Lts v Carmichael, 119 S Ct. 1167 (1999)). Prior to these, the standard for evaluating expert testimony was the “Frye” standard, from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). At the core of Frye was the contention that judges should refer to scientists, admitting evidence when the method utilized was “sufficiently established to have gained general acceptance in the particular field in which it belongs”(1014). This came to be known as the “general acceptance” rule and was reinforced by the Federal Rules of Evidence adopted in 1976, of which Rule 702 stated that “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”
Many states continued to utilize the Frye standard, but the “general acceptance” rule gave rise to problems and two primary concerns: (1) it required the establishment of an “orthodoxy,” but such an orthodoxy may be indulgent, in that it is based upon a body of work that has no scientific validity or has any checks or objective standards, and (2) waiting for “general acceptance” may stifle innovation or deprive courts of novel techniques or scientific breakthroughs.
“Acceptance” within the scientific community can be misleading, in that some methods or theories are “accepted” almost by faith, and are not proven flawed for many years, perhaps refuted by people on the periphery who lack “acceptance” by the wider scientific community. The Frye standard and Federal Rules were then proving inadequate. A more stringent standard was therefore outlined in Daubert, where general acceptance was just one of five criteria by which to “test” scientific evidence:
- Whether the theory or technique in question can be (and has been) tested
- Whether it has been subjected to peer review and publication
- Its known or potential error rate
- The existence and maintenance of standards controlling its operation
- Whether it has attracted widespread acceptance within a relevant scientific community
Most states have adopted the Daubert standard, some still work with the Frye test, and a few have their own tests they adopt on a case-by-case basis. Daubert explicitly placed judges in the role of gatekeeper who must evaluate the scientific validity and reliability of scientific evidence. It also switched the focus from whether there was a scientific consensus upon which to base the evidence given, to whether the techniques and methodology used were valid. The Kumho Tire case clarified that the Daubert analysis applies to scientific, technical, and otherwise specialized knowledge, and not exclusively to scientific evidence (so applying to engineers, etc.) (at 1175). Kumho also strengthened trial judge’s discretion in noting that the judge had “considerable leeway” and “broad latitude” in flexibly applying the criteria set out in Daubert (at 1176).
Daubert has provided a useful checklist but is by no means uncontroversial. In his judgement in General Electric Co. v Joiner, 522 U.S. 136 (1997), Justice Stephen Breyer alluded to the difficulties that judges faced: “scientific evidence often requires judges to make subtle but sophisticated determinations,” (p. 1) and “those duties often must be exercised with special care” (p. 2). Scholars have produced many theoretical, quantitative, and qualitative analyses of the operationalization of Daubert, debating the relative merits of each of the criteria; considering how judges are deciding on admission, the extent to which judges are able to apply the criteria; as well as assessing various forensic methods using the Daubert criteria. Many have found the Daubert criteria wanting, as well as doubting the ability, or willingness of judges to apply them strictly. Moriarty and Saks (2005: 29) concluded that “some forensic sciences have been with us for so long, and judges have developed such faith in them, that they are admitted even if they fail to meet minimum standards under Daubert. Faith, not science, has informed this gatekeeping.” In their major report “Strengthening Forensic Science: The Path Forward,” the National Academy of Sciences was pessimistic about the contribution that could be made by judges and their gatekeeper role in preventing “junk science,” concluding that “Daubert has done little to improve the use of forensic science evidence in criminal cases” (NRC 2009: 106). Their research found that US appellate courts were too deferential to admissibility decisions made by trial judges and were simultaneously being too generous in admitting prosecution expert evidence while generally excluding expert evidence for the defense (NRC 2009: 96).
Both Canadian and Australian State and federal legal jurisdictions have seen expert evidence and forensic science playing a role in wrongful convictions. In both countries, public inquiries and Royal Commissions following exonerations have driven forensic science policy and reform. In Canada, the case of Mohan  2 SCR 9 established a four-part test for expert evidence, requiring that it be (1) relevant, (2) necessary in assisting the trier of fact, (3) not otherwise subject to an exclusionary rule, and (4) given by a properly qualified expert. The subsequent Canadian Supreme Court cases of Rv J-LJ  2 SCR 600 & Trochym  1 SCR 239 affirmed that there are enhanced tests of reliability for expert evidence and courts must particularly scrutinize novel science or methodologies, similar to the approach in Daubert.
The 2008 Inquiry into Pediatric Forensic Pathology in Ontario (the Goudge Report) inquired into a series of wrongful convictions relating to the pathologist Charles Smith. The report affirmed that judges play “an important role in protecting the legal system from the effects of flawed scientific evidence” and that “judges bear the heavy burden of being the ultimate gatekeeper in protecting the system from unreliable expert evidence” (Goudge Report 2012: 470). Goudge asserts that “trial judges should be vigilant in exercising their gatekeeping role” and that a test of reliability is embedded within the Mohan test. Evidence must thus be excluded by judges if not satisfying standards of threshold reliability, whether or not the science is novel (Recommendation No. 130). The report stressed that judges needed to pay close attention to the methodological and reliability issues identified in Daubert (pp. 483–484). Enhanced judicial education was also recommended to enable judges to undertake their gatekeeping role competently.
Similarly, Australia has suffered wrongful convictions that have led to Royal Commission reports highly critical of scientific evidence. In 1987, Judge Morling released a report into the Azaria Chamberlain conviction that dismissed the majority of the prosecution’s scientific evidence and saw the conviction overturned. Previously, in 1984, the Shannon Royal Commission into the conviction of Edward Charles Splatt had implicated flawed scientific evidence which led to his release and pardoning. Such Royal Commissions have seen improvements in forensic science provision across Australia. However, legal reforms have been more fitful and uneven across the continent.
Australian courts follow a variety of state, federal, and common law, with many adhering to uniform evidence legislation which admits opinion evidence under s. 79, where the opinion must be (1) relevant; (2) from a person who has specialized knowledge; (3) the specialized knowledge is based upon the person’s training, study, or experience; and (4) the opinion is wholly or substantially based on that specialized knowledge. However, the legislation does not define “specialized knowledge” or require certain criteria for the “field of expertise” to be met. This has given rise to debate about the role of reliability. In HG v The Queen (1999) 197 CLR 414, the common law is cited as requiring an expert’s knowledge or experience to be in an area “sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience” (at 58). However, the New South Wales Court of Criminal Appeal has said that evidentiary reliability is not a consideration under s79 (R v Tang (2006) 161 A Crim R 377;  NSWCCA 167). The focus of attention must be on “specialized knowledge,” not on the introduction of “an extraneous idea such as reliability” (at 137). For a country that has seen wrongful convictions based upon unreliable expert evidence, this is a worrying judgement indeed.
Presently the English and Wales legal system operates a “case-by-case” assessment of experts (their evidence tested via cross-examination), which has on occasion proved flawed. Expert opinion evidence is admissible under R v Turner  QB 834, where “an expert’s opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury.. ..” In recent years, judges have approved and adopted the South Australian case of Bonython  38 SASR 45, which requires consideration of the subject matter of the expert’s opinion, considering whether it “forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience”(at 47). This still stops short of an explicit or stringent gatekeeping role for English and Welsh judges, an omission that the Law Commission of England and Wales in their 2011 report on expert evidence is hoping to fill. Their Draft Bill seeks to introduce a statutory reliability test for expert evidence, requiring the party wishing to rely on the evidence to demonstrate that it is sufficiently reliable to be admitted. It is intended that this will be an enhanced test of admissibility, with a suggested list of criteria for judges to consider.
Given the difficulties highlighted with the gatekeeping role of the judge and the vagaries of expert evidence admissibility at trial, it may be more prudent to ensure the reliability and validity of scientific evidence prior to admission at trial. Indeed, given that most wrongful convictions have at their core defective investigative decision making, it is vital that forensic evidence utilized by investigators is reliable to ensure decisions made at this stage are based upon sound evidence. If forensic evidence is flawed at the investigative stage, it is often too late, and the damage irreversible at trial. Given then that it is essential that all forensic evidence is reliable and valid, whether used at trial, during an investigation, or held as “intelligence” by law enforcement agencies, there must be systems in place to ensure the quality of forensic evidence from the outset of the criminal process. This requires regulation and oversight of forensic science from the crime scene to the courtroom and quality assurance standards for the education, training, and operation of forensic scientists and the quality assurance and accreditation of their working environments and practices.
During the massive expansion of forensic science provision in the late twentieth and early twenty-first centuries, there have been a series of reports commenting upon forensic services. In England and Wales, the Royal Commission on Criminal Justice of 1993 (The Runciman Report) made 13 recommendations specific to forensic science. Of these, the establishment of an oversight body was deemed a priority. A subsequent report into serious contamination at a military forensic explosives laboratory by Professor Caddy in 1996 recommended the creation of an “Inspectorate of Forensic Sciences” and advocated the registration of individuals as forensic practitioners, a call repeated by the House of Commons Science and Technology Committee (2005), when it proposed greater regulation of forensic science. In 1999 the establishment of the Council for the Registration of Forensic Practitioners (CRFP) sought to register “competent” forensic practitioners. However, the CRFP stopped far short of bringing rigorous scrutiny to bear upon forensic science and in 2009 was closed in the light of financial difficulties, lack of stakeholder support, and the newly created Forensic Regulator role.
The role of the UK Forensic Regulator was created in 2007 and was tasked with establishing and monitoring quality standards and oversees accreditation via the UK Accreditation Service (UKAS) using the international laboratory testing ISO17025 standard, necessitating UKAS establish supplementary standards and modifications to tailor the standard to forensic science. However, there remain questions over whether regulation reforms are being applied equally to all aspects of forensic science. On the one hand, the introduction of the regulator was presented as creating a generic standard for forensic science providers in the UK and “a light touch” in steering service providers. However, there remain concerns about a perceived lack of teeth and gaps in regulation, with a fear that accreditation may prove to be superficial. The regulator also faces serious resource restrictions.
There is increased recognition in the USA for the need for proper regulation and oversight of forensic science. The New York State Commission on Forensic Science which accredits and monitors forensic laboratories was established in 1994 and in Texas in 2005; the legislature established an independent oversight body for forensic laboratories to identify and oversee rectification of problems that have blighted forensic science in that state. Despite such innovations, in February 2009, the National Academy of Sciences report, Strengthening Forensic Science in the United States: A Path Forward, is almost unremittingly condemnatory. This critical tone was not unexpected, given that the committee had been established in the wake of high-profile failings and against a backdrop of the ongoing exoneration of innocent people, convicted often with the aid of flawed or misrepresented forensic science. In addition, the USA was still struggling to make inroads into significant backlogs in forensic laboratories despite increases in federal funding. The report unsurprisingly found serious issues facing forensic science and concluded that any remedy would have to be national in scope and demands both leadership and funding.
In July 2012 legislation was introduced to the US Congress to help prevent wrongful convictions by bringing reliable, science-based standards to forensic evidence. The Forensic Science and Standards Act of 2012 seeks to strengthen forensic science and standards: “yielding evidence that judges, prosecutors, defendants, and juries can fully trust.” The Forensic Science and Standards Act of 2012 would require the National Institute of Standards and Technology (NIST) to develop forensic science standards while a Forensic Science Advisory Committee ensure the implementation of standards. Further, a National Forensic Science Coordinating Office, housed at the National Science Foundation (NSF), would also develop a strategy to support a forensic science grant program to promote research.
With international forensic data exchange increasingly common, quality standards for forensic science have become ever more important. The requirement that forensic science providers have demonstrable quality standards and accreditation has now been mandated with EU Council Framework Decision 15905/09. Accreditation of laboratories to the ISO17025 standard was viewed as providing “mutual trust in the validity of the basic analytic methods used,” although it does not mandate particular methods to be used, only that the method be suitable for its purpose. This decision only covers laboratories, omitting any quality oversight of the retrieval of forensic information, whether at crime scenes or in police stations, for example, its scope restricted to the results of laboratory activities.
It is unlikely that any standard can regulate every aspect of a forensic practitioner’s work. The lack of oversight of crime scene examination and evidence retrieval will be very difficult to overcome, particularly where police personnel are working in their domains without external supervision or oversight. Well over half of forensic science services (measured by cash value) in England and Wales are delivered within police forces’ own scenes of crime operations and scientific support services, with this set to increase. These services are not yet subject to the same quality standards regimes as apply to commercial providers. Yet differential standards operate against the public interest, increasing the risk of flawed results being relied upon, or challenged in the courts. In many countries, all forensic science services come under the auspices of the police, with their accreditation status and quality assurance regimes unknown. The use of personnel directly employed by the police has been roundly criticized by all reports looking into forensic science. Indeed, high-profile wrongful convictions in England and Wales were tainted by the suspicion that scientists had been too easily influenced by the police when undertaking testing and reporting results. The US National Research Council (2009) report specifically recommends that all forensic laboratories be removed from law enforcement premises and/or their administrative authority.
Despite the overwhelming support for a stronger and more regulated range of forensic services, difficulties persist. There remains the ever-present problem of funding: to oversee all forensic science provision to a standard which some would still view as inadequate has required considerable investment. It is also dangerous to implement quality standards and operating procedures that are not underpinned by rigorous scientific research, yet it is this lack of underlying “science” that has been most strongly criticized. Significant investment in research is still required prior to regulation. Further, the proper extent of the reforms in the forensic area, as opposed to their direction, remains largely unconsidered. For example, it might be asked why fingerprints are currently collected and analyzed by the police without reference in the vast majority of cases to scientists or independent laboratories. The answer seems in the main to be historical; fingerprinting was developed by the police themselves two or three decades before the establishment of formal laboratories. Thus, forensic science should be defined in wide terms and regulators given a wide remit if the quality of justice is to be improved.
Another problem concerns how forensic evidence is handled and the particular danger that tests adverse to the contentions of the prosecution will be disregarded and suppressed. This leads to the observation that acceptable forensic detection ultimately depends not only on the imposition by society of training, rules, sanctions, and supervision but also on the internalization by scientists of the ethics behind that training. As has been found to be indispensable in relation to police interrogation practices, it is necessary to impact upon the whole culture with which the police approach investigations. A corresponding approach to forensic evidence should spark further debate as to qualifications and training.
Despite almost comprehensive favorable media representation, forensic science has not eradicated the potential for factual errors in legal investigations and criminal trials resulting in wrongful convictions. While the realization of the extent of human unreliability has grown at the same time as scientific and technological power and knowledge have increased, undoubtedly preventing many wrongful convictions, they may still flourish in a culture which fails to properly scrutinize and question forensic evidence. Research into the causes of wrongful convictions clearly demonstrates that while the utilization of forensic evidence can assist the pursuit of justice, it can also seriously hamper fact finders and triers of fact in criminal cases.
One attempt to prevent wrongful convictions has been in the development of evidentiary rules to prevent flawed scientific evidence from entering the courtroom, empowering judges to rule questioned scientific evidence inadmissible. However, such admissibility standards have also been criticized, with commentators concluding that there remains a “conspicuous need for further refinement and greater vigilance to make these standards effective” (Edmond and Roach 2011).
While forensic scientists have joined calls over the years for better regulation, to provide assurance to the courts that experts before them will be qualified, and their evidence valid and reliable, there remain serious limitations to current regulation that means that the gatekeeping role of judges in courtrooms remains as vital as ever. The task cannot be left to judges alone however. Without “good” forensic science, authorities run the risk not only of wrongful convictions but also a loss of public confidence in the criminal justice system. It is critical that attention be paid to the delivery of forensic services: how scientists are trained and standards are set, monitored, and maintained across the forensic science sector. If this were to be done to a high standard, then the burden upon judges in their role as gatekeeper and the opportunities for error would be lessened.
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