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Codes of Ethics in Forensic Science Societies
CHAPTER
4
Codes of Ethics in Forensic Science Societies: The Organizational Parameters of Morality and Conduct Kenneth E. Melson1
The vast majority of forensic science practitioners work in traditional crime laboratories or identification units.2 Many also belong to a forensic science professional organization. It is through their employment or membership in professional organizations, either membership societies or certification organizations, that they may become exposed to codes of ethics or rules of professional responsibility. This phenomenon exists because, with the exception of physicians, few laboratories or forensic units had their own codes to guide practitioners’ behavior,3 at least until ASCLD/LAB adopted a uniform code for their accredited laboratories.4 It is even less likely that forensic science practitioners in private practice have their own code of ethics to follow. Even if a practitioner belongs to a forensic science professional society, some organizations do not have an established code, or if they do, there is no effective enforcement mechanism. Consequently, for years, or more accurately decades, forensic scientists may not have been subject to enforceable codes or other parameters on their behavior, except perhaps through excoriation by courts rejecting evidence or reversing judgments of conviction because of professional nonfeasance or malfeasance by forensic scientists. Beyond that, “[t]he law per se does little to regulate the quality of expert testimony and professional status of forensic scientists.”5 The 2009 report of the National Research Council of the National Academy of Sciences recognized the disparity in the existing codes of ethics and their lack of widespread coverage.6 Recommendation 9 of the report encourages the adoption of a national code of ethics with a means of enforcement. Such a code, according to the report, could be enforced through certification organizations, once a requirement for individual certification becomes mandatory, as the report also recommended. Other means of establishing and enforcing a national code have also been proposed.7 This chapter reviews the current status of ethics codes in professional organizations, with a brief historical review of a few such codes. A review of the codes of ethics illustrates the variety, specificity and enforceability of these codes. The review also validates
Ethics in Forensic Science DOI: 10.1016/B978-0-12-385019-5.00004-X
Published by Elsevier Inc. 2012
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the NAS Report’s Recommendation 9, the need for a uniform code. Fortunately, one organization, ASCLD/LAB, has gone further than any other in an effort to require forensic science practitioners to adhere to a single code of professional responsibility. Physicians, in a unique position due to licensing requirements, have had to comply with state medical board ethics codes. The professional organization for forensic pathologists, the National Association of Medical Examiners, adopts the single national “authoritative ethics guide for practicing physicians”8 of the American Medical Association. As part of the review of codes of ethics and conduct, the codes from the following organizations principally based in the United States have been examined: American Academy of Forensic Sciences (AAFS), http://www.aafs.org American Academy of Psychiatry and the Law (AAPL), http://www.aapl.org/ American Board of Criminalistics (ABC), http://www.criminalistics.com/ American Board of Forensic Document Examiners (ABFDE), http://www.abfde.org/ American Board of Forensic Toxicology (ABFT), http://www.abft.org/ American Society of Crime Laboratory Directors (ASCLD), http://www.ascld.org/ American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB), http://www.ascld-lab.org/ American Society of Questioned Document Examiners (ASQDE), http://www.asqde.org/ Association of Firearms and Toolmark Examiners (AFTE), http://www.afte.org/ Association of Forensic DNA Analysts and Administrators (AFDAA), http://www.afdaa.org/Welcome.html California Association of Criminalists (CAC), http://www.cacnews.org/ Forensic Toxicologist Certification Board, Inc. (FTCB), http://home.usit.net Illinois State Police Forensic Sciences Command Rules of Conduct/Code of Ethics, http://www.isp.state.il.us/forensics/ International Association for Identification (IAI), http://www.theiai.org/ Mid-Atlantic Association of Forensic Scientists (MAAFS), http://www.maafs.org/ Midwestern Association of Forensic Scientists (MAFS), http://www.mafs.net/ National Association of Medical Examiners (NAME), http://thename.org/ Northeastern Association of Forensic Scientists (NEAFS), http://www.neafs.org/ Northwest Association of Forensic Scientists (NWAFS), http://www.nwafs.org/9 Society of Forensic Toxicologists (SOFT), http://www.soft-tox.org/ Southwestern Association of Forensic Scientists (SWAFS), http://www.swafs.us/ In addition, codes from the following international (other than US) organizations were examined. These organizations differ from those listed above (except for ASCLD) in that their membership consists of other forensic science organizations, rather than individual practitioners; they are instead forensic science networks of various regions of the world. ASCLD is the closest example in the United States, its membership being directors representing US forensic science laboratories.
Codes of Ethics in Forensic Science Societies
Academia Iberoamericana de Criminalistica y Estudios Forenses (Iberoamerican Academy of Criminalistics and Forensic Studies) (AICEF), http://www.aicef.net/ Asian Forensic Science Network Code of Conduct (AFSN), http://www.asianforensic.net/ Australian and New Zealand Forensic Science Society, Inc. (ANZFSS), http://www.anzfss.org.au/ Canadian Society of Forensic Science (CSFS), http://www.csfs.ca/ European Network of Forensic Science Institutes (ENFSI), http://www.enfsi.eu/ The Forensic Science Society, UK (FSSoc), http://www.forensic-science-society.org.uk/
1. CODES OF ETHICS IN PROFESSIONAL ORGANIZATIONS Individual stakeholders within the criminal justice community who rely on forensic science to inculpate or exculpate the accused may argue over the nature and scope of codes of ethics, but there is one concept that all should agree upon, which was enunciated in 1971 by Professor James Starrs: …the forensic scientist can wait no longer to tighten the outlines of the ethical guides that should be drawn to govern his conduct in the criminal justice system.10
That is as true today as it was when first stated. Hence, the value of a comparative examination of codes of ethics in forensic societies remains equally relevant where we are today, 40 plus years later. Until now, professional forensic science societies and certification organizations have been the primary sources of ethical guidance for forensic science. These societies vary in nature, from national and international societies such as the AAFS and IAI, representing a number of forensic science disciplines, to regional societies like CAC and MAAFS, to discipline-specific organizations like NAME and the Society of Forensic Toxicologists (SOFT). Individual practitioners might belong to more than one organization. Thus, an individual may belong to organizations that each have their own codes, differing in nature and scope from each other, some enforceable and some not, or having no code at all. Regardless of their nature, the day-to-day influence of these codes over the practitioner is frequently minimal. When adopted by their employing organizations, the codes become more important and more relevant.5 If an employer pays the dues for a professional organization membership, then this might be construed as an endorsement of the entity, and an implicit expectation that the employee member will comply with all the requirements of membership – including its ethical canons. If no enforcement mechanism is available for an association’s code, issues relating to the practice of forensic science may have to be referred to the practitioner’s employer. Until the ASCLD/LAB uniform guidelines were adopted, very few, if any, employing
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agencies had a code of ethics pertaining specifically to the forensic scientist (again with the exception of physicians and other medical practitioners who have had to comply with various state medical board ethical codes). Instead, employers had to fit ethical misconduct into the agency’s government code of ethics, for example, those that primarily relate to being a government employee. In other circumstances, the misconduct had to be handled through the performance work plan and the employee’s annual performance evaluation. If the misconduct was serious enough, the entity’s Internal Affairs Division or Office of Professional Responsibility might have investigated the alleged misconduct.11 These investigative entities most likely did not have any guidance on ethical considerations applicable to forensic science practitioners. A point should be made here, however, that mirrors a frequent refrain. The disciplines within forensic science may differ from each other, and the role and ethical considerations of police officers and lawyers may be “different from the scientist, [but] the moral responsibilities of the individual do not differ ….”12 That concept is important when considering the various codes of ethics. Despite their differences, without exception the codes rely upon the individual’s own sense of morality. In fact, the very foundation of professional organizations’ codes of ethics relies on personal morality.13 The concept of a morality-based code is recognized by some organizations, in that there is a differentiation between codes of ethics and codes of conduct or rules of professional responsibility. Recognizing that codes of ethics rely on personal morality, such as not to lie, cheat or steal, and contain broad moral concepts, some organizations have only a code of conduct or code of professional responsibility, which is specifically designed for the specialty represented by the organization and for its members’ professional development. Other societies and organizations have both a code of ethics and a code of professional responsibility. Although calling their document a code of ethics, other organizations describe the code as being more aspirational than concrete moral rules. For example, the Forensic Toxicologist Certification Board’s Code of Ethics is captioned “Aims and Ideals.”14 The National Association of Medical Examiners, however, combines both concepts in its “Code of Ethics and Conduct.”15 The latter title suggests that ethics and conduct are, in fact, inseparable. The misnomer in calling the document a code of ethics is readily apparent in the provisions which make it unethical to fail to abide by the organization’s by-laws or constitution. The Association of Forensic DNA Analysts and Administrators, for example, makes it unethical not to “[c]omply with the by-laws of the Association.”16 MAAFS, on the other hand, makes it unethical to make unauthorized public statements representing the organization.17 The ASCLD Code of Ethics has a similar provision.18 If morality is really the bedrock of ethics, it is hard to see how an organization can legislate non-compliance with by-laws, or the making of unauthorized statements, as unethical conduct. In other organizations, the same provisions can be found in the governing documents, but those organizations are careful to name their documents as
Codes of Ethics in Forensic Science Societies
codes of ethics and conduct.19 A code of conduct, vis-à-vis a code of ethics, more appropriately prohibits those types of conduct, along with personal conduct considered adverse to the best interests and purposes of the association.19 Many of the codes are stand-alone documents of the organization, and others are incorporated into the governing documents of the organization, usually the by-laws (see Table 4.1). The incorporation model has the benefit of requiring the membership to vote for a change in the code as an amendment to their by-laws; the disadvantage is the code is often more difficult to update. For example, the Code of Ethics for the Northwest Association of Forensic Scientists is not a part of its by-laws and requires only a simple majority vote of the membership at any business meeting to amend it, whereas an amendment to its by-laws requires a three-quarters affirmative vote of the members attending the Association Business Meeting.20 Table 4.1 Organizations with a Code of Ethics and/or a Code of Professional Responsibility Organization Code of Code of Conduct/ Both Incorporated Ethics Professional into Governing Responsibility Documents
Academia Iberoamericana de Criminalistica y Estudios Forenses (Iberoamerican Academy of Criminalistics and Forensic Studies) (AICEF) American Academy of Forensic Sciences (AAFS) American Academy of Psychiatry and the Law American Board of Criminalistics (ABC) American Board of Forensic Document Examiners (ABFDE) American Board of Forensic Toxicology (ABFT) American Society of Crime Laboratory Directors (ASCLD) American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) American Society of Questioned Documents (ASQDE) Asian Forensic Sciences Network Code of Conduct (AFSN) Association of Firearm and Toolmark Examiners (AFTE)
X
X
X
X
X X X21 X X X X
X X
X (Continued)
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Table 4.1 (Continued) Organization
Association of Forensic DNA Analysts and Administrators (AFDAA) Australian and New Zealand Forensic Science Society (ANZFSS) California Association of Criminalists (CAC) Canadian Society of Forensic Science (CSFS) European Network of Forensic Science Institutes (ENFSI) Forensic Science Society, UK Forensic Toxicologist Certification Board, Inc. International Association for Identification (IAI) Mid-Atlantic Association of Forensic Scientists (MAAFS) Midwestern Association of Forensic Scientists (MAFS) National Association of Medical Examiners (NAME) Northeastern Association of Forensic Scientists (NEAFS) Northwest Association of Forensic Scientists (NWAFS) Society of Forensic Toxicologists (SOFT) Southwestern Association of Forensic Scientists (SWAFS)
Code of Ethics
Code of Conduct/ Professional Responsibility
Both
Incorporated into Governing Documents
X X X X X X
X X
X X X
X
X X X X
X
Regardless of whether the code is a part of the founding documents or a stand-alone document, a successful implementation of a code of ethics depends in great part on the membership’s awareness and commitment to it. Some codes idealistically proclaim their members’ commitment. For example, the Forensic Toxicologist Certification Board states that each member “shall pledge himself to conform to the code of ethics …”.22 SWAFS goes further and requires that “every member will receive a copy of the Code …” and imposes on the member the responsibility to “read the Code and be aware of its implications.”23 The only organizations that appear to require annual reaffirmation of the code by its members are the AAFS and NAME. Every year as part of the annual renewal of membership, AAFS and NAME members must acknowledge their acceptance of the provisions of the Code.24 NAME requires members to read, understand and endorse the Code of Ethics and Conduct.25
Codes of Ethics in Forensic Science Societies
Two codes require the commitment to other codes of ethics and conduct. The NAME and the American Academy of Psychiatry and the Law require conformance with the guidelines and ethical principles of the American Medical Association and the American Psychiatric Association, respectively.26 The ISP Rules of Conduct/Code of Ethics requires all “Forensic Science Command employees” also be familiar with the state personnel rules, the State Police Directives Manual and the Facility Operational Manuals.27
2. THE DEVELOPMENT OF AN ASSOCIATION’S CODE OF ETHICS AND CONDUCT The American Academy of Forensic Sciences (AAFS or Academy) was founded in 1948 as an interdisciplinary organization representing the various disciplines within the forensic science community. Dr. R.B.H. Gradwohl noted, as the idea of an academy was being formulated, that: [t]here is no fixed border for any forensic science, each has more than necessity to rely on the others. It would thus seem fitting that a central organization be of extreme value in collating and disseminating the fundamentals of all forensic sciences.28
It is no surprise that the founding members of the Academy recognized that personal, moral values are essential to the ethical conduct of forensic scientists. On January 21, 1948, the Committee on a Permanent Organization issued its final report. At the outset, the report declared: There can be no Justice without Truth, whether that Truth be attested by lay or expert witnesses. That Truth of which we speak is something more than the mere willingness of witnesses to relate what they saw, heard or know. Individual fidelity to this moral standard which we term honesty is only one aspect of Truth and is not always sufficient to serve the ends of ultimate Justice between two litigants or members of society…. [I]t is commonly known that all knowledge is either consciously or unconsciously encumbered not only with the imperfections of the observer, but mostly by preconceived notions, prejudices and inadequate mechanisms for differentiating between appearances and reality…. Science, as an empirical method of discovering eternal truths in nature, is the one important handmaiden by which Truth and then Justice may be unfolded. And in so far as science has advanced to unroll a cloud of ignorance from the minds of men, to that extent have the legal controversies of men been more equitably adjusted.29
At the 1950 organizational meeting of the Academy in Chicago, the AAFS Constitution and by-laws were adopted. Chapter 1, Section 3 provided for adverse action against “[a] member who violates any of the provisions of this Constitution and by-laws…”.30 The provisions of those documents pertained primarily to membership, administration and organizational structure and did not specify any ethical standards against which action should be taken, save for “a member who has been found guilty of a felony or is guilty of gross misconduct even though no criminal charge has been made…”.30 Sanctions that could be imposed if the “charges” were sustained included censure, suspension or expulsion.30
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An interesting provision in the by-laws, particularly in light of today’s litigious society, stated that “[k]indly efforts in the interest of peace, conciliation or reformation, so far as possible and expedient, shall proceed the filing of formal charges affecting the character or standing of a member…”.31 Good advice for everyone. The same founding documents provided for an Ethics Committee consisting of the three immediate past-presidents of the Academy.32 Such a committee was formed in 1950. The committee’s task, however, was not to create a code of ethics, but to handle situations where “incidents of conduct deemed ‘detrimental to the best interests of any professional society’” were reported.33 AAFS records do not reveal any such activity by the Ethics Committee during the 1950s.33 Not until 1960 was a committee formed to create a code of ethics. That committee proposed a comprehensive set of “rules” of ethics.34 Part of the preamble for the proposed Rules of Ethics read as follows: The purity and efficiency of judicial administration depends as much upon the character, conduct and demeanor of lawyers, physicians and forensic scientists in this great trust as upon the fidelity and ability of the courts or the honesty and intelligence of jurors.35
What followed were 15 non-exclusive, general rules for the guidance of its members. These rules included: candor and fairness; how far an expert can go in supporting a client’s case; conflict of opinion among colleagues; participation in fraud and trickery; duty on discovery of fraud or imposition; conflicting interests; confidences of a client; right to withdraw; punctuality; attitude toward jury; expenses; acquiring interest in litigation; fixing the amount of the fee; contingent fees; and membership in the academy.36 The Rules of Ethics were never presented to the Academy membership for adoption. The AAFS Executive Committee met in the spring of 1963 and tabled the Rules. The stated reason was because “it was felt that the [Academy’s] Constitution was sufficient, and that it was not feasible to legislate morality and integrity.”37 An ad hoc Committee on Code of Ethics was formed in the mid-1970s. The Committee members recognized that the multi-disciplinary nature of the Academy created a challenge. Each of the disciplines in the Academy had different, discipline-specific considerations. Thus, it was decided that the code of ethics had to be generic and applicable to all members. Four criteria drove their drafting of the proposed code: it must be desirable; it must be feasible; it must be enforceable; and it must be enforced.38 This time, the Executive Committee, meeting in the summer of 1976, voted to present the code to the general membership, and in 1977 it was adopted at the annual meeting of the Academy.39 The new code was developed to “promote the highest quality of professional and personal conduct of its members.”40 The two provisions of the code provided: Every member of the American Academy of Forensic Sciences shall avoid any material misrepresentation of training, experience, or area of expertise.
Codes of Ethics in Forensic Science Societies
Every member of the American Academy of Forensic Sciences shall avoid any material misrepresentation of data upon which an expert opinion or conclusion is based.40
Those two provisions of the code were considered mandatory for all members. Although the adopted code was far less specific than the Rules proposed in 1963, the full amendment to the Academy by-laws also included three voluntary “guiding principles” that were deemed “essential to the attainment of the highest quality of professionalism”.40 They were: (a) The forensic scientist should maintain his professional competency through existing programs of continuing education. (b) The forensic scientist should render technically correct statements in all written or oral reports, testimony, public addresses, or publications, and should avoid any misleading or inaccurate claims. (c) The forensic scientist should act in an impartial manner and do nothing which would imply partisanship or any interest in a case except the proof of the facts and their correct interpretation.40 Although: [a]ny member whose professional or personal conduct becomes adverse to the best interests and purposes of the academy shall be liable to censure, suspension or expulsion
the permissive investigative action by the Ethics Committee was directed to alleged violations relating to misrepresentation of criteria for membership, unauthorized public statements, and violations of the Code of Ethics.41 Interestingly, the Guiding Principles, which were only voluntary, was not captured within the investigative authority of the Ethics Committee.42 The exclusion of the guiding principles from enforcement action was intentional, and the next revision of the Code of Ethics eliminated those principles, separating that iteration of the code even further from the specific nature of the 1963 proposal. The 1986 revision of the code, however, specifically incorporated three new provisions that were tangentially referenced through the liability and investigative portions of the previous code’s enforcement section. The three new provisions were: 1. Every member of the American Academy of Forensic Science shall refrain from exercising professional or personal conduct adverse to the best interest and purposes of the Academy. 2. Misrepresentation of one or more criteria for membership in the AAFS shall constitute a violation of this section of the code. 3. Every member of the AAFS shall refrain from issuing public statements which appear to represent the position of the Academy without specific authority first obtained from the Board of Directors. In 1989, AAFS published in the Journal of Forensic Sciences a special symposium on ethics in the forensic sciences, supported by the Ethics and Values Directorate of the National Science Foundation.43 The five papers constituting the symposium set an
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important benchmark in the development of ethical considerations, and were instructive to the entire forensic science community. The introductory paragraph of the symposium is instructive for its view of the relative breadth of ethical standards. Forensic scientists are expected to be honest with respect to their qualifications, examinations, and conclusions; they should be technically competent and only use methods of proven reliability; they should remain totally objective and nonpartisan with respect to their review of evidence and delivery of expert testimony; and they are expected to present understandable and balanced reports/testimony to legal decision makers.44
In the late 1990s, the Academy established an ad hoc Good Forensic Practices Committee to prepare an aspirational set of guidelines to supplement the minimal, baseline provisions of the AAFS Code of Ethics. Violations of the Good Forensic Practices Guidelines would not, however, be enforceable unless a violation was also a breach of the Code of Ethics.45 These guidelines were presented to the Academy’s Executive Committee in 1999,46 but were never adopted by the Academy, and the committee was disbanded. As of this writing, the last revision of the AAFS Code of Ethics occurred in 2008, and it remains general in nature with little guidance on the particular ethical and moral obligations of forensic scientists or their professional conduct. Two substantive changes, however, were made in the last revision. First, “conduct adverse to the … purposes of the Academy” was changed to “conduct adverse to the … objectives of the Academy,” as they are particularly articulated in the Preamble to the by-laws. Those objectives were incorporated into the Code. Second, the prohibition on misrepresenting data was expanded to misrepresenting “scientific principles” as well.47 One contributor to the 1989 ethics symposium used the AAFS Code of Ethics as an example that “many professional codes of ethics do little more than remind us of our parent’s admonitions” not to lie, cheat, steal or kill.12 Another commentator has suggested that “[t]he main drawback to the brevity and lack of specificity of the code of ethics of the AAFS is that it has little value as a guide to proper action in a particular circumstance.”45 Despite its brevity and lack of specificity, however, the AAFS Code of Ethics and Conduct could be enforced by the Academy, unlike some societies which had no enforcement provisions. The Academy was one of the few organizations that could, and did, engage in enforcement actions resulting in sanctions against its members. Not all codes are as general as the AAFS code. An example of a more detailed code of ethics is that belonging to the California Association of Criminalists (CAC). Peter Barnett, a frequent author in that area of forensic science ethics, recited the history of the CAC code of ethics: The development of the CAC Code … was an effort by a group of early criminalists in California to help define a profession for the first time. The California criminalists who founded the CAC and
Codes of Ethics in Forensic Science Societies
adopted its code of ethics were really inventing something that had never before existed: a code of ethics that tried to bridge the gap between one profession with a strong ethical tradition – the law – and another nascent profession that was trying to develop professional recognition and a means of self-governance.48
The CAC code of ethics, first adopted in 1957, is detailed and multi-situational. But as Barnett points out, a detailed code is more difficult to revise, because the opponents to revision will argue either that the proposal is already covered in an existing provision, or would conflict with other provisions already in force. In addition, such a detailed code might be difficult to apply to unusual circumstances.49 Table 4.2 illustrates the nature of several codes of ethics of forensic science organizations. The categorization of a particular code is somewhat subjective, divided into three categories – 1–10 provisions, 11–20 provisions, and 21 or more provisions – but there is a significant difference between the general code and the detailed code. The CAC Code of Ethics has 41 provisions, for example, compared to the four provisions of the AAFS or the Association of Forensic DNA Analysts and Administrators. In the latter organization, the provisions are broad concepts: 1. Comply with the by-laws of the Association. 2. Treat all information from any agency, client, or fellow member with the confidentiality required. 3. Carry out the duties of the profession with integrity, attention to accuracy, and in an unbiased manner. 4. Will not misrepresent qualifications, evidence, opinions, conclusions, or testimony. Even broader concepts are reflected in the ABFT Code of Ethics, which exhorts its members to conduct themselves and to perform activities “with honesty and integrity”.50 The Code of Conduct of the Forensic Science Society of the United Kingdom provides less clarity, by mandating that members conduct themselves “honorably in the practice of their profession”.51 The breadth of those moral imperatives, however, are minimal compared to the last provision of the ABFT Code of Ethics. That provision instructs ABFT members to: [a]ct in accordance with the long-standing precepts for ethical practice of the profession…50 (Emphasis added).
What those precepts are and where they can be found is not disclosed. Presumably, these must have evolved from tradition and practice as a common law form of ethical behavior. Compare those general provisions to the specificity provided in Section III. K. of the CAC Code of Ethics54: K. Where the expert must prepare photographs or offer oral “background information” to the jury in respect to a specific type of analytic method, this information shall be reliable and valid, typifying the usual or normal basis for the method. The instructional material shall be of a level that
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Table 4.2 Specificity Comparison of Codes of Ethics Organization
Academia Iberoamericana de Criminalistica y Estudios Forenses (Iberoamerican Academy of Criminalistics and Forensic Studies) (AICEF) American Academy of Forensic Sciences (AAFS) American Academy of Psychiatry and the Law American Board of Criminalistics (ABC) American Board of Forensic Document Examiners (ABFDE) American Board of Forensic Toxicology (ABFT) American Society of Crime Laboratory Directors (ASCLD) American Society of Crime Laboratory Directors/ Laboratory Accreditation Board (ASCLD/LAB) American Society of Questioned Documents (ASQDE) Asian Forensic Sciences Network Code of Conduct (AFSN) Association of Firearm and Toolmark Examiners (AFTE) Association of Forensic DNA Analysts and Administrators (AFDAA) Australian and New Zealand Forensic Science Society (ANZFSS) California Association of Criminalists (CAC) Canadian Society of Forensic Science (CSFS) European Network of Forensic Science Institutes (ENFSI) Forensic Science Society, UK Forensic Toxicologist Certification Board, Inc. International Association for Identification (IAI) Mid-Atlantic Association of Forensic Scientists (MAAFS) Midwestern Association of Forensic Scientists (MAFS) National Association of Medical Examiners (NAME) Northeastern Association of Forensic Scientists (NEAFS) Northwest Association of Forensic Scientists (NWAFS) Society of Forensic Toxicologists (SOFT) Southwestern Association of Forensic Scientists (SWAFS)
General Code 1–10
Intermediate Code 11–20
Detailed Code 21
X X X X
X
X X X X X X X X X X X X
X
X
X X
X X X X X
Codes of Ethics in Forensic Science Societies
will provide the jury with a proper basis for evaluating the subsequent evidence presentations, and not such as would provide them with a lower standard than the science demands.
The majority of the codes fall into the intermediate category that goes beyond broad principles but stays within the general categories most often encountered by forensic scientists. The CAC Code was adopted for criminalists, and the AAFS Code for a multidisciplinary society. Other codes target a particular class of forensic scientists, such as the ASCLD/LAB Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists. Those guidelines pertain to laboratory management and “all laboratory personnel, including technical support personnel and others who assist forensic scientists in their work”.52 The Illinois State Police Forensic Sciences Command Rules of Conduct/Code of Ethics applies to the directors, administrators, forensic scientists, toxicologists and support personnel in the command.53 The Association of Forensic DNA Analysts and Administrators apply to those who are performing forensic aspects of DNA analysis, but also to their supervisors and laboratory administrators. Unlike the AAFS Code, some more detailed codes of ethics are divided into broad categories of ethical considerations. The 41 provisions of the Code of Ethics of the California Association of Criminalists, for example, are divided among five major categories.54 Table 4.3 illustrates codes of ethics that are similarly divided.
3. A COMPARISON OF THE CODE PROVISIONS OF FORENSIC SCIENCE SOCIETIES An analysis of the codes of ethics and conduct reflect a high degree of similarity among both domestic and foreign associations. Not only are provisions topically similar, but they are also similar in wording, suggesting that there was a sharing of documents among societies.55 The CAC code appears to be the first complex code developed by an organization for its members, and other codes bear a strong resemblance to it.56 The commonality among conduct covered by code provisions is also high. For example, most codes articulate that the forensic scientist should be unbiased and impartial, and should use accepted methods in their testing. Interestingly, the sharing of documents does not appear to have occurred between American-based and overseas organizations. Professor Saks in his article “Prevalence and impact of ethical problems in forensic science”,57 included a table cataloging the provisions of nine codes of ethics and conduct. That catalog appears below as Table 4.4. The conduct described in his table mirrors almost in its entirety the CAC Code. Annexed to his table are “Additional Provisions” which were developed by this author to expand the provisions cataloged in Professor Saks’s article. Tables 4.5 and 4.6 utilize the same listing of code provisions, including the new annex of additional provisions, but reflect organizations’ codes not included in the original work by Professor Saks.
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Table 4.3 Codes with Subdivided Categories of Ethical/Professional Considerations Organization AICEF
Behavior
AAPL
Confidentiality Consent
ASCLD/LAB
Professionalism Competency and proficiency Scientific Opinions and method conclusions
AFTE ANZFSS CAC CFSF ENSFI Illinois State Police MAAFS MAFS NEAFS
NWAFS SOFT SWAFS
Scientific method Scientific method Responsibility to the organization Behavior Examination of evidence Relating specifically to MAAFS Examination and analysis Matters relating to NEAFS
Competency
Casework
Reporting
Honesty and striving for objectivity Clear communications Court presentations
Qualifications
Professional competence
General practice of firearms and toolmarks Conduct in court
General matters
Reporting
Pre-trial conduct
Opinions and conclusions Responsibility to client, employer or the court Competence
Court presentations Responsibility to the profession of forensic science Casework
General practice of Criminalistics
Responsibilities to the profession
Reporting
Report findings General conduct of members
Courtroom testimony Examination and analysis
Personal development Opinions and conclusions
Professional competence Improper actions Management of others responsibility Testimony General matters
Testimony
General matters
Improvement of the profession
Court presentation
General practice of forensics
Responsibilities to the profession
Relating to opinions and conclusions
Relating to testimony/ courtroom presentation
Opinions and conclusions Professional work performance and courtroom testimony Scientific Opinions and method conclusions Professionalism Competency and proficiency General Relating to the criminalistic profession matters
Clear communications Relating to examination and analyses
Confidentiality Personal of information conduct Improvement of the profession
Table 4.4 A Comparison of Code Provisions by Professor Saksa Provisions CAC
RELATING TO SCIENTIFIC METHOD Should be unbiased, minimum anticipation of what results should be, maintain rigid impartiality Should not bolster conclusions by using unwarranted and superfluous tests Should not use “secret” methods or processes, not open to scrutiny Should insist upon representative and reliable materials on which to perform examination Should not use unreliable, unproven, or discredited procedures Should keep abreast of new developments Should keep skills sharp, participate in proficiency testing
MAFS
SWAFS
NEAFS
IAI
X
X
X
X
X
X
X
X
X
X
X
X
AFTE
ISP
X
X
X
X X
X
X
X
X
X
X X
X X X
X X
X
X
RELATING TO EXAMINATIONS AND CONCLUSIONS Should use proven and accepted methods X Should do sufficiently thorough examination X Should not knowingly distort tests or interpretations of them Should refuse to be swayed by evidence or matters X outside the specific materials under consideration Should not confuse scientific fact with investigative X theory Should not go beyond own competence X X Where results are capable of alternative interpretations, should not select the one favoring the side by which he or she is employed RELATING TO ADVERSARY PRESENTATION Should be available for pre-trial interviews with both prosecution and defense attorneys
IAI:CA
X
X
X X
X
X
X X
X
X
X
X
X
X
X X
X
X (Continued)
Table 4.4 (Continued) Provisions
CAC
Should disclose exculpatory findings to the court if it X appears prosecution is not going to make disclosure to defense Should not misrepresent qualifications Should not give opinions on matters not subjected to X formal examination Should not leave false impressions in the minds of fact X finders Should not present testimony in a way that wins it more X weight than it is due Should not limit testimony to evidence that supports the X view of the side employing the forensic scientist; should see to it that the court understands the evidence as it is Should not assist the contestants in a case in implanting X false impressions Should not confuse or conceal concepts from fact finders X Displays should not be designed to mislead fact finder X RELATING TO GENERAL PRACTICE Should be willing to re-examine evidence submitted by X another forensic scientist; however, should try to resolve discrepancy before case goes to trial; goal should not be to thwart justice Members convicted of felonies or certain other crimes can be expelled RELATING TO PROFESSION Should make new discoveries and developments widely known Should cooperate in improvement through research Should direct attention to methods which appear invalid or unreliable Should refrain from seeking personal publicity Should not take undue credit Should bring to the attention of the association forensic scientist who has committed (serious or frequent) infractions
MAFS
SWAFS
NEAFS
IAI
IAI:CA
AFTE
ISP
X X X X
X
X X
X
X
X
X
X X
X X
X X
X X
X X
X
X
X
X
X
X
X X X
X X
X
X
X
X
X
X
X
X
X
ADDITIONAL PROVISIONS Treat evidence with care to maintain integrity Seek verification of findings X Complete work notes on all items/keep for appropriate time Honestly, fairly, and objectively administer and complete proficiency tests, technical reviews, and verifications Confidentiality Full and complete disclosure to submitting agency Maintain attitude of independence and impartiality to inspire confidence by public; take care not to violate public trust; duty is to justice Report conflicts between ethics and laboratory policy Attempt to qualify answers when asked “yes” or “no” question Do not accept gifts or inducements to influence performance; avoid conflicts of interest Contingency fees X Do not use position to impose undue influence on examiner Do not discriminate on basis of race, gender, creed, language, orientation, social status, age, lifestyle, or politics Should review and correct findings in light of new information or developments in field Accept responsibility for work done and that done under his/her supervision Distinguish between opinions and results of tests and examinations Association will give full support to examiner who abides X by code a
X X
X
X
X
X
X X58 X
X
X X
X
Reprinted with permission, from the Journal of Forensic Sciences,Vol. 34, No. 3, copyright ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428.
Table 4.5 A Comparison of Code Provisions from Additional Organizations Provisions NAME AFDAA ABC
RELATING TO SCIENTIFIC METHOD Should be unbiased, minimum anticipation of what results should be, maintain rigid impartiality Should not bolster conclusions by using unwarranted and superfluous tests Should not use “secret” methods or processes, not open to scrutiny Should insist upon representative and reliable materials on which to perform examination Should not use unreliable, unproven, or discredited procedures Should keep abreast of new developments Should keep skills sharp, participate in proficiency testing
X
RELATING TO EXAMINATIONS AND CONCLUSIONS Should use proven and accepted methods Should do sufficiently thorough X examination Should not knowingly distort tests or X X interpretations of them Should refuse to be swayed by evidence or matters outside the specific materials under consideration Should not confuse scientific fact with investigative theory
X
ASCLD/LAB ASQDE
ABFDE
FTCB
MAAFS
X
X
X
X
X
ABFT
X
X
X
X
X
X
X
X
X
X
X X
X X
X
X
X X X
X
X X
X X X
X
X
X
X
X
X
X
Should not go beyond own competence Where results are capable of alternative interpretations, should not select the one favoring the side by which he or she is employed
X
RELATING TO ADVERSARY PRESENTATION Should be available for pre-trial interviews with both prosecution and defense attorneys Should disclose exculpatory findings to the court if it appears prosecution is not going to make disclosure to defense Should not misrepresent qualifications X Should not give opinions on matters not subjected to formal examination Should not leave false impressions in the minds of fact finders Should not present testimony in a way that wins it more weight than it is due Should not limit testimony to evidence that supports the view of the side employing the forensic scientist; should see to it that the court understands the evidence as it is Should not assist the contestants in a case in implanting false impressions Should not confuse or conceal concepts from fact finders Displays should not be designed to mislead fact finder
X
X X
X
X
X
X
X
X
X X
X
X
X
X
X
X
X
X
X
X
X
X
X X
X
X X
X X (Continued)
Table 4.5 (Continued) Provisions
RELATING TO GENERAL PRACTICE Should be willing to re-examine evidence submitted by another forensic scientist; however, should try to resolve discrepancy before case goes to trial; goal should not be to thwart justice Members convicted of felonies or certain other crimes can be expelled RELATING TO PROFESSION Should make new discoveries and developments widely known Should cooperate in improvement through research Should direct attention to methods which appear invalid or unreliable Should refrain from seeking personal publicity Should not take undue credit Should bring to the attention of the association forensic scientist who has committed (serious or frequent) infractions ADDITIONAL PROVISIONS Treat evidence with care to maintain integrity Seek verification of findings Complete work notes on all items/keep for appropriate time
NAME
AFDAA
ABC
ASCLD/LAB ASQDE
ABFDE
FTCB
MAAFS
ABFT
X
X
X
X X X
X
X
X
X
X
X
X
Honestly, fairly, and objectively administer and complete proficiency tests, technical reviews, and verifications Confidentiality Full and complete disclosure to submitting agency Maintain attitude of independence and impartiality to inspire confidence by public; take care not to violate public trust; duty is to justice Report conflicts between ethics and laboratory policy Attempt to qualify answers when asked “yes” or “no” question Do not accept gifts or inducements to influence performances; avoid conflicts of interest Contingency fees Do not use position to impose undue influence on examiner Do not discriminate on basis of race, gender, creed, language, orientation, social status, age, lifestyle, or politics Should review and correct findings in light of new information or developments in field Accept responsibility for work done and that done under his/her supervision Distinguish between opinions and results of tests and examinations Association will give full support to examiner who abides by code
X X
X X
X
X
X
X
X
X X
X X
X X
X59 X
X
X
Table 4.6 A Comparison of Code Provisions from Additional Organizations Provisions AAFS AAPL ASCLD NWAFS SOFT
RELATING TO SCIENTIFIC METHOD Should be unbiased, X minimum anticipation of what results should be, maintain rigid impartiality Should not bolster conclusions by using unwarranted and superfluous tests Should not use “secret” methods or processes, not open to scrutiny Should insist upon X representative and reliable materials on which to perform examination Should not use unreliable, unproven, or discredited procedures Should keep abreast of new developments Should keep skills sharp, participate in proficiency testing
X
X
AICEF
AFSN
ANZFSS
CFSF
ENSFI
FSSoc, UK
X
X
X
X
X
X
X X
X
X
X
X
X
X
X
RELATING TO EXAMINATIONS AND CONCLUSIONS Should use proven and X accepted methods Should do sufficiently thorough examination Should not knowingly X X X X distort tests or interpretations of them
X
X
X
X
X
X X
X X X
X
X
X
X X
X
Should refuse to be swayed by evidence or matters outside the specific materials under consideration Should not confuse scientific fact with investigative theory Should not go beyond own competence Where results are capable of alternative interpretations, should not select the one favoring the side by which he or she is employed RELATING TO ADVERSARY PRESENTATION Should be available for pretrial interviews with both prosecution and defense attorneys Should disclose exculpatory findings to the court if it appears prosecution is not going to make disclosure to defense Should not misrepresent X X X qualifications Should not give opinions on matters not subjected to formal examination Should not leave false impressions in the minds of fact finders
X
X
X
X
X
XX
X
X
X
X
X
X
X
X
X
X
X
X
X X
X
X
X
X
X
X
X
X
X
X
(Continued)
Table 4.6 (Continued) Provisions
Should not present testimony in a way that wins it more weight than it is due Should not limit testimony to evidence that supports the view of the side employing the forensic scientist; should see to it that the court understands the evidence as it is Should not assist the contestants in a case in implanting false impressions Should not confuse or conceal concepts from fact finders Displays should not be designed to mislead fact finder
AAFS
AAPL
ASCLD
NWAFS
SOFT
AICEF
X
X
X
X
X
X
X
X
RELATING TO GENERAL PRACTICE Should be willing to re-examine evidence submitted by another forensic scientist; however, should try to resolve discrepancy before case goes to trial; goal should not be to thwart justice
X X
X
AFSN
ANZFSS
X X
CFSF
ENSFI
X
FSSoc, UK
Members convicted of felonies or certain other crimes can be expelled RELATING TO PROFESSION Should make new discoveries and developments widely known Should cooperate in improvement through research Should direct attention to methods which appear invalid or unreliable Should refrain from seeking personal publicity Should not take undue credit Should bring to the attention of the association forensic scientist who has committed (serious or frequent) infractions ADDITIONAL PROVISIONS Treat evidence with care to maintain integrity Seek verification of findings Complete work notes on all items/keep notes for appropriate time
X
X
X X
X
X X
X
X
X X X
X
X
X
X X
X X X
X
X
(Continued)
Table 4.6 (Continued) Provisions
Honestly, fairly, and objectively administer and complete proficiency tests, technical reviews, and verifications Confidentiality Full and complete disclosure to submitting agency Maintain attitude of independence and impartiality to inspire confidence by public; take care not to violate public trust; duty is to justice Report conflicts between ethics and laboratory policy Attempt to qualify answers when asked “yes” or “no” question Do not accept gifts or inducements to influence performance of tests/ avoid conflicts of interest
AAFS
AAPL
X
ASCLD
NWAFS
SOFT
X
X
AICEF
AFSN
ANZFSS
CFSF
ENSFI
X
X
X
X X
X
X
X
X
X
X
X
FSSoc, UK
Contingency fees Do not use position to impose undue influence on examiner Do not discriminate on basis of race, gender, creed, language, orientation, social status, age, lifestyle, or politics Should review and correct findings in light of new information or developments in field Accept responsibility for work done and that done under his/her supervision Distinguish between opinions and results of tests and examinations Association will give full support to examiner who abides by code
X
X X
X X
X X
X
X
X
X
X
X
X
X
X X
X
X
X X X
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Kenneth E. Melson
As noted, the provisions of many codes are topically similar and unremarkable, prohibiting the most obvious indiscretions. There are provisions, however, that deserve some discussion.
3.1 Evidence and its Examination The integrity of the evidence examined by an expert is important not only for chain of custody purposes, i.e., establishing that the item examined is the same item seized by police, but for the relevance of the scientific examination, i.e., is the evidence in the same condition at the time of examination as it was when seized by the police? The crime scene’s initial and subsequent environmental impact on the evidence, over and above the chain of custody concept, is also important to the examiner and the methodology of the examination. Therefore, several codes require that examiners determine, to the extent they can, whether the evidence submitted to them for examination has been compromised before submission so as to affect their test results or conclusions.60 After receiving the evidence in the laboratory, there is a further obligation to maintain the evidence properly.61 Various codes repeat the latter requirement. The ASCLD/LAB and SOFT Guidelines describe specifically the type of loss of integrity to be avoided, including the prevention of tampering, adulteration, loss or unnecessary consumption.62 Generally accepted techniques, tests and procedures are the foundation for examination of evidence by forensic scientists. Several codes make that clear, by mandating the use of those methods that are generally accepted.63 SWAFS makes it clear that new techniques may not be used until thoroughly validated.64 Other organizations give more latitude for creativity and initiative. Both MAAFS and NEAFS make it desirable to use generally accepted techniques, but allow for “individual initiative when circumstances warrant”.65 MAFS, on the other hand, allows for the use of new or experimental techniques to add additional information, but not for the primary basis for the conclusion, until “proven scientifically sound”.66 Professor Saks in his 1989 ethics symposium article worked from an assumption that a code of ethics reflects the problems a profession is having, and by incorporating those issues into its code attempts to change the conduct of its members.67 The ASCLD/LAB Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists was initially adopted on December 6, 2008, and is one of the newest codes of professional responsibility to date among forensic science societies and organizations.68 A provision specifically added to the Guiding Principles pertains to the use of appropriate controls and standards when conducting examinations and analyses.69 This was not necessarily a new provision in the forensic science community, but inserted to respond to issues in laboratories relating to the use of out-dated controls, “dry-labbing” and other similar misconduct and negligence. The
Codes of Ethics in Forensic Science Societies
IAI, MAAFS, ABC, and the Australian and New Zealand Forensic Science Society, for example, have similar provisions in their codes. Although the CAC code does not have a specific provision relating to the use of appropriate controls, standards or reagents, it does suggest that no “unreliable procedure be utilized in the analysis”.70 When conducting tests, examination notes are important. ASCLD/LAB and the SOFT Guiding Principles require that “full, contemporaneous, clear and accurate records of all examinations and tests conducted, and conclusions drawn”.71 One of the important purposes of this procedure is to allow a review and assessment of what was done by an independent expert who is competent in the field.72
3.2 Proficiency and Competency Imperative for reliable and accurate testing is the competency of the examiner. It has been stated many times, although incorrectly, that it is not unethical to be incompetent. To the contrary, competence is an overarching concept that is supported by individual provisions in the codes of ethics and professional conduct. “The members’ education and/or training must be sufficient to be able to perform these duties proficiently,” is a precept enunciated near the beginning of the MAAFS Code of Ethics.73 (Emphasis added.) The Forensic Toxicologist Certification Board mandates that each member “… keep informed of new developments and processes in toxicological examination by study and research, with a full realization that accuracy is possible only through competence”.22 In 1992, a presentation of the ASQDE code of ethics at their 50th anniversary conference had a similar provision.74 It appears that the current version of the ASQDE code of ethics has eliminated the statement that accuracy is only possible through competence.75 A requirement to remain competent is also found in the IAI Code of Ethics where it requires that members: … shall maintain and strive to improve his or her knowledge, skills, and abilities and shall continue to use all available resources to be knowledgeable of advances in his or her respective discipline(s).76
ASCLD/LAB and SOFT expressly entitle one section of its Guiding Principles “Competency and Proficiency” and go on to state that ethical and professionally responsible forensic scientists and laboratory managers “[a]re properly trained and determined to be competent through testing prior to undertaking the examination of the evidence”.77 An anomaly appears, however, in the MAAFS and MAFS codes of ethics that appear to allow someone to conduct an examination or analysis that is “… beyond the scope of an individual’s experience….” as long as “… someone who has adequate knowledge in the area reviews the work”.78 One must query why someone who is not competent or proficient in an examination or analysis because it is beyond the
109
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Kenneth E. Melson
individual’s experience would conduct such an examination/analysis in the first place. If such an examination or analysis is conducted, will that person testify to the procedure and results in court? Both codes go on to state that “[s]ound scientific procedures require that an individual neither form conclusions nor render opinions which are beyond his area of expertise”.79 An interesting variation on this theme is reflected in the AFSN Code of Conduct, which suggests that testimony should stay within the limits of expertise “or level of competence”,80 recognizing the fact that even within an area of expertise there are many levels of competence and the opinion may be restricted by the nature of the training and experience of the individual expert. Under the heading of Competency and Proficiency, the ASCLD/LAB Guiding Principles also include a specific provision not found in other codes. Reflecting issues occurring in crime laboratories, a provision was included that directs forensic scientists and laboratory managers to honestly, fairly, and objectively administer and complete regularly scheduled proficiency tests, comprehensive technical reviews, and verifications of conclusions.81
3.3 The Duty to Disclose Technical reviews and verifications raise an issue not directly addressed in any code of ethics or professional responsibility. During a technical review or verification of conclusions, if the reviewer or verifier disagrees with the testing examiner, what process should take place to resolve the difference? Some codes recognize a variation of this situation by making it clear that it is ethical for one examiner to re-examine evidence material previously examined by another, and when there is a difference of opinion: as to the significance of the evidence or to the test results … every effort [should] be made by both examiners to resolve their conflict before the case goes to trial.82
When this issue arises in the context of a verification of conclusions or a technical review, many laboratories have a third examiner mediate the difference to arrive at an “official” result, conclusion or opinion. That process, of course, is the easy part of the answer. The more difficult question is whether and how the result, conclusion or opinion that was not accepted or officially adopted should be disclosed to the opposing party and/or the court. Absent situations where the difference is exculpatory and therefore has to be disclosed, which it could be argued is true in every case, codes of ethics and professional responsibility do not address this issue specifically. Such a “majority rules” mandate assumes that the majority is correct, creating an interesting philosophical point – is it always necessary to reveal any significant differences of opinion, as it is entirely possible that the “minority report” may in fact be the more accurate? The closest provision that does address this issue, and similar issues regarding the disclosure of exculpatory evidence, can be found in paragraph 13 of the ABC Rules of Professional Conduct. That provision instructs members of the ABC to:
Codes of Ethics in Forensic Science Societies
[m]ake efforts to inform the court of the nature and implications of pertinent evidence if reasonably assured that this information will not be disclosed to the court.83
Although the differences in the conclusions or opinions of the reviewer or verifier and the examiner may not be legally exculpatory, there may be impeachment value in the difference between the experts to be capitalized upon by the opposing party during cross-examination, and thus arguably should be disclosed. In any case where there is a possibility of an injustice occurring, there should be an affirmative duty to disclose the matter to the court, usually through the prosecuting attorney. The ASCLD/LAB and SOFT Guiding Principles require reporting to appropriate legal authorities of scientifically questionable conduct of laboratory employees.84 Two other organizations also require disclosure to the court. ABC requires its members to: [m]ake efforts to inform the court of the nature and implications of pertinent evidence if reasonably assured that this information will not be disclosed to the court.85
It is unclear whether this obligation extends to the expert only when he or she is in a testimonial mode. A similar provision in the Australian and New Zealand Forensic Science Society suggests that is the case. Its provision, under the heading of “Conduct in Court” dictates that: the witness should appeal to the presiding judicial officer … if they believe that the manner in which evidence is being elicited is such as to prevent the disclosure of a significant relevant matter or circumstance.86
3.4 Reports and Opinions An important role for the expert is report writing. The signature on a report, often accompanied by an attestation, is important to its evidentiary veracity, particularly if the report is admitted into evidence without testimonial foundation. Two codes make it clear that reports should be signed only by the persons who have done the work, or by those who have either directly or indirectly supervised it.87 A corollary is that the supervisor must take full responsibility for all the work done under his or her supervision.88 Forensic scientists should be willing to modify their opinions or conclusions in a particular case if new information comes to light that has a material effect on the examination results. Three codes recognize that relatively non-controversial proposition. They go further, however, and suggest that experts should be prepared to reconsider their opinions based on “new developments in the relevant field”.89 When that happens, the forensic scientist should notify his or her client of the change, according to the same codes. This concept, which only appears in the foreign forensic science network codes of ethics, is germane to current laboratory issues. What is the responsibility of a laboratory to inform prosecutors, defense attorneys, or defendants when
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Kenneth E. Melson
they find that a generally accepted practice utilized years ago, and sometimes longer, turns out to be faulty, either scientifically or in the strength of the conclusions which may be drawn from it? A closely related topic concerns differences of opinions between opposing experts. Responses to allegations of ethical misconduct are often couched in terms of a simple “difference of opinion”, a convenient escape route for ethics committees reviewing the allegations. The AFTE Procedures for the Enforcement of the Code of Ethics addresses this issue:90 B. In every consideration of a charge of ethical misconduct the distinction must be made between unethical behavior and an honest difference of opinion. 1. It is not unethical to disagree with one’s peers, even if one’s peers are more experienced, provided there is an adequate basis for the opinion. It may be unethical to express an opinion for which one does not have an adequate basis because: a) The individual is not competent to express such an opinion because of a lack of proper education, training or experience, or; b) The individual has not acquired the data necessary to justify the conclusion, or; c) The individual is basing his or her opinion on improper or discredited data.
This policy encourages ethics committees to actually investigate the differences between expert opinions, instead of simply discarding the complaint because experts often disagree. Experts may honestly disagree less in the future when disciplines now described as very subjective become more exposed to standardization and methodological protocols.
3.5 Confidentiality, Extrajudicial Statements and the Talking Head Keeping the information of the agency or client confidential is a frequent requirement imposed upon forensic scientists, either implicitly or explicitly.91 Confidentiality is a concept incorporated within the attorney-client privilege; however, the privilege is a far stronger doctrine. The AFTE Code of Ethics and the CAC Code of Ethics have an interesting twist on the concept. They suggest that while the attorney-client relationship applies (and it is questionable whether it applies to government analysts) it does so “except in a situation where a miscarriage of justice might occur. Justice should be the guiding principle.”92 Miscarriages of justice can occur when an innocent person is convicted of a crime and where a guilty person is acquitted, because of a fraud perpetrated by the defense or because misleading or inaccurate expert testimony is presented by the defense. In the latter case, a consulting expert witness may be bound by the doctrine of attorney-client privilege regardless of whether a miscarriage of justice might occur. Confidentiality does not always apply to every aspect of a case. NAME is the only organization which gives specific guidelines as to what a member may say about a pending case in which he or she is involved and in which he or she has given formal consideration. The NAME Code of Ethics and Conduct directs that a member may
Codes of Ethics in Forensic Science Societies
not make “an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication” except for information without elaboration in five enumerated categories.93 The categories are: 1. Information contained in a public record. 2. That the investigation is in progress. 3. The general scope of the investigation including a description of the offense and, if permitted by law, the identity of the victim. 4. A request for assistance in apprehending a suspect or assistance in other matters and the information necessary thereto. 5. A warning to the public of any dangers. These categories are very similar to the rules provided by courts to control pre-trial publicity and apply to any person who is associated with the prosecution or investigative agency. There have been many instances when dismay and disappointment have been expressed by experts in the forensic science community concerning peers who become commentators on talk shows and news broadcasts about ongoing investigations, or cases in which they are not personally involved. None of the codes of ethics or professional responsibility examined have a provision directly on point with this issue. Although enunciated under the heading of “court presentation”, several codes do say that an ethical expert should not offer “opinions on matters within his or her field of qualification to which he or she has not given formal consideration”.94 Extrapolating from that concept, one might conclude that being a talking head in the media concerning specific matters about which the expert has not given formal consideration, meaning a personal examination of the evidence or an evaluation of it as a representative of a party to the litigation, should be avoided. However, since experts are routinely asked during sworn testimony to answer “hypothetical” questions, discussing general concepts may be fair game.
3.6 The Dilemma of the “Yes” or “No” Question Another situation of consistent concern among forensic scientists is the one they often encounter in the courtroom when an attorney asks a “yes” or “no” question that cannot be answered in that fashion without misleading the fact finder. MAAFS provides guidance in Section 1.6.4. If a question is put to the expert with the requirement that they should give a simple answer (i.e., yes or no), but it requires qualifications to avoid misleading the judge or jury, the expert should so state before answering the question.95
A similar provision is found in Guideline 19 of the ASCLD/LAB Guiding Principles, suggesting that the authors of that recent code were cognizant that the “yes/no” dilemma was still a concern among testifying experts.
113
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Kenneth E. Melson
While other codes may have general language requiring clear and concise testimony that does not mislead the judge or jury, the clear advantage for the testifying expert that a specific provision on the “yes/no” issue provides is the ability to use it as support in court for not answering in such summary fashion when it would mislead the fact finder. Although a court may direct the witness to answer the question in such fashion regardless of the ethical considerations (leaving it to counsel to rehabilitate the witness and his or her answer), the expert can clearly define the issue for the court’s consideration with the support of the code or standard of conduct.
3.7 Reporting and Resisting Unethical or Unprofessional Conduct A 1985 revision of the CAC Code of Ethics spoke to the obligation of a member to report an apparent ethical violation to the Association.96 The pertinent section distinguishes two situations; those that are “serious or repeated”, which requires the allegation to be reported, and all others. There is no definition of “serious”, leaving it to the member to determine the apparent severity of the infraction. Reference might be made to the reporting requirements described in conjunction with the Paul Coverdell Forensic Sciences Improvement Grants, where it requires certification by the applicant that an entity exists to investigate allegations of serious negligence or misconduct substantially affecting the integrity of the forensic results committed by employees or contractors of any forensic laboratory system.97 (Emphasis added.)
Four other codes of ethics with provisions regarding the reporting of alleged unethical conduct require all violations of the code to be brought to the association’s attention.98 It is a violation of the SWAFS Code of Professional Conduct to “… willingly tolerate unethical activity on part of another member”.99 MAFS adds that it is “…a breach of ethics to knowingly conceal consistent unethical action”.100 It would seem that even a single unethical act should not be concealed by another. The ASCLD/LAB Guiding Principles require forensic scientists, other laboratory personnel, and managers to make reports to the appropriate legal or administrative authorities [of ] unethical, illegal, or scientifically questionable conduct of other laboratory employees or managers.101
Those Guiding Principles as well as SOFT’s go even further than other codes by requiring management and others to take “appropriate action” if there is “potential for, or there has been, a miscarriage of justice due to circumstances that have come to light, incompetent practice or malpractice”.102 This provision is the most far reaching of any code. The term “appropriate action” might include anything from personnel discipline to notifying the legal community of negligence or misconduct that may have affected the integrity of the forensic analysis or results.
Codes of Ethics in Forensic Science Societies
As the forensic science community becomes more aware of their ethical obligations as defined by codes of ethics and conduct, they will rely on them increasingly in response to issues that arise in the laboratory and in court. But will an association support its members who rely on specific provisions of a code of ethics or conduct? The CAC likewise pledges its full support to any criminalist that uses the code as justification of his or her conduct in a given situation. Just what “full support” means is not spelled out in either code.
4. ENFORCEABILITY AND ENFORCEMENT OF CODES OF ETHICS AND PROFESSIONAL RESPONSIBILITY Many of the organizations having codes of ethics or conduct also have provisions to enforce allegations of misconduct. Enforceability and actual enforcement, however, are two separate issues. It is easy to create a policy and process for investigating allegations of misconduct, but more courageous to actually impose a sanction for the conduct. In this section, the procedures for investigating allegations, determining that a violation exists and then imposing a sanction are reviewed. Next, the more difficult issue of whether an organization will, or can, withstand the consequences of imposing a sanction will be explored.
4.1 Enforceability The purposes of enforcing a code of ethics or professional responsibility may be apparent to many. AFTE, however, explains to its membership that its enforcement is not punitive in nature. To the contrary, the purposes of enforcement are:103 1. To educate both the individual accused and the membership in general of the ethics of the profession and the importance of ethical behavior. 2. To advise the criminal justice system of those individuals who engage in serious unethical activity, in order to promote the ends of justice. 3. To protect the reputation of the Association from those members who may engage in unethical activity. Like the codes themselves, many of the enforcement provisions are similar across organizations, suggesting some uniformity in process. Enforcement provisions are normally posted on the organization’s website. They are found in either the entity’s by-laws or more particularly articulated in a separate policy manual, or both.104 All organizations that have enforcement provisions have a body to conduct investigations, hold hearings, provide at least a minimal due process regime, and an opportunity to appeal. Table 4.7 catalogs some of the provisions of the enforcement procedures existing in conjunction with codes of ethics and conduct. Not all of the categories listed in the table were necessarily determinable in every association’s procedures, in which case the box was not checked.
115
Table 4.7 A Comparison of Enforcement Provisions Provisions AAFS ABFDE ASQDE ASCLD
GENERAL Standing ethics committee Ad hoc ethics committee Number of committee members Association officers as committee members Committee gives advisory opinions Any person may allege an ethics violation Written complaint by member is required Proceedings terminated/ suspended if accused resigns Proceedings do not terminate if accused resigns PROCEEDINGS President/Board opens case Committee recommends opening or closing case to Board
X
X
X
AFTE
X
X 4 1
X
5
X
X
X
X
X X
3
X
AFDAA CAC IAI
3
4
NAME NEAFS SWAFS
SOFT
FSSoc, UK
X
X
X
X
X
3
6
5
3
X 3
4 X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X X
X
X
X
Appeal to Board if case opened/not opened Committee opens case Board of Directors holds ethics hearing Committee holds ethics hearing Committee makes recommendation on findings/sanctions to Board Board makes decision Bifurcated decision process Vote necessary for committee recommendation
X X
X X
X
X
X
X
X
X
X
X
X
X
X
DUE PROCESS PROCEDURES Confidentiality X Notice to accused X X Right to respond in writing Right to appear at X hearing Right to counsel X Right to discovery X Right to present evidence X
X
X
X X
X
X
X
X
X X
X
X
X
X
X
X
X
X
X
X
2/3
3/4
3/4
X X X
X X
X
X
X
X
3/4
majority 2/3
2/3
X X X
X X
X X X
X X
X
X
X
X
X X
X X
X
X
X
majority
majority
X X
X X X
X
X
X
X X
X
X
X X
X
X
X
X (Continued)
Table 4.7 (Continued) Provisions
Right to confront accuser Right to cross examine witnesses Right to oral testimony Oath administered for oral testimony Declarations/affidavits Right to recorded or transcribed hearing Burden of proof
AAFS
AFTE
AFDAA CAC IAI
X ? X
X X
X X X
X
X
X X
X
X
FSSoc, UK
X X
X
X
X
X
Prepon- Preponderance derance 3/4
X
X
SOFT
X
Clear and convincing
X X
NAME NEAFS SWAFS
X
X
Vote necessary for Board finding SANCTIONS Private reprove/ reprimand/ admonishment Censure Suspension Probation Expulsion Decertification
ABFDE ASQDE ASCLD
X
X
X X
X
X
X
2/3
2/3 2/3
majority
X
X
X
X
X
X X
X X
X X
X
X
X
X105
X
X
X
X
X
X
X
X
X
APPEAL Appeal to Board/ X general membership Right to be heard before general membership Bifurcated decision process Vote required to 3/4 uphold Board’s finding/sanction Vote required for sanction if bifurcated decision process REINSTATEMENT Post-expulsion rights of reinstatement – permissive Post-suspension rights X to reinstatement Post-expulsion rights of reinstatement – prohibited
X
X
X
X
X
X
X
X
X
X
X
3/4
2/3 majority 3/4
3/4
2/3
X
X
3/4
X X X
X
X
X X X
X
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Despite the similarities among enforcement provisions, there are significant differences in the structures of the processes. The most common process provides for standing ethics committees to make initial determinations to open or not open a cases on allegations of misconduct (e.g., AAFS, AFDAA, and NAME), to hold hearings (e.g., AAFS, ASQDE, AFDAA, NAME, NEAFS) and to provide recommendations to their governing bodies on both findings as to the allegations and warranted sanctions if violations are established (e.g., AAFS, ABFDE, ASQDE, AFDAA). The other most common procedure provides for the governing body, such as a board of directors or executive committee, for example, to make the determination as to whether a case should be opened in the first instance (e.g., ABFDE, AFTE, CAC, SWAFS). The ethics committee under that regime becomes an investigatory body, and prepares a report to the board or executive committee, at which time, if deemed appropriate, the executive committee holds the hearing and makes the determination as to a verdict and a sanction if necessary (e.g., ABFDE, AFTE). The standing Membership/Ethics Committee (MEC) of the Forensic Science Society, UK is also an investigatory body, but does not hold a hearing. Instead, the committee makes a recommendation to a separate, ad hoc Disciplinary Committee, which then holds a hearing. The MEC prosecutes the case before the Disciplinary Committee, and the respondent is afforded a plethora of due process rights. The Disciplinary Committee then makes a recommendation to the society’s Council for a decision and imposition of sanctions, if appropriate, from which there is no appeal.106 Another major difference between organizations pertains to the appeal. Most of the organizations with enforcement provisions provide for an appeal to the general membership.107 In some organizations, such as the AAFS, the process primarily entails a vote on whether to sustain or overrule the findings of the board or executive committee. Other organizations provide for a hearing before the general membership (e.g., AFTE, CAC). The IAI creates a Board of Appeals, composed of five members, which can uphold or overturn the decision of the Board of Directors or remand the case to the Professional Review Board.108 The voting pattern provides another difference. In some organizations there exists a structured voting pattern, first as to the finding of a violation and second as to the sanction to be imposed (e.g., ABFDE, AFTE, CAC). This structure may also pertain to the appeal before the general membership in some cases (e.g., AFTE, CAC). Within the structure for a vote on the sanction, different levels of consensus are required by some organizations. For example, AFTE requires a vote of three-quarters of the Board of Directors to expel a member from the association, a two-thirds vote for a public censure and if neither of those required votes are obtained, the member automatically receives a private reproval.109 The same “accusation phase/sanction phase” applies during an appeal to the AFTE general membership.110 In the CAC, a two-thirds vote is required for a suspension or an expulsion, a letter of reprimand being the default sanction.111
Codes of Ethics in Forensic Science Societies
Other more nuanced differences also appear among the various enforcement provisions. While confidentiality during the enforcement process is almost universally expected, the ABFDE maintains the identity of its Professional Review Committee (PRC) confidential, except for the chairperson.112 Members of the ethics committees implicitly must avoid conflicts of interest, but at least three organizations explicitly require a conflict-free process. ABFDE’s PRC must be “as free as possible from compromising influences”.113 Actual conflicts must be avoided and there should be an attempt to avoid perceived conflicts as well, according to the AFTE procedures.114 If an accused AFTE member communicates any objections to the makeup of the ethics committee based on bias or conflicts of interest, a procedure is invoked whereby the President of the Association rules on the objection.114 No member of the ASCLD Board may deliberate on any matter pertaining to an alleged violation of the code if “the Accused or Accuser are employed by the same employer as the member of the Board”.115 The same restriction applies to members of the CAC ethics committee.116 Complaints by members of associations against another member normally have to be written, and must contain certain information identifying the relevant code section and the underlying factual bases for the allegation.117 Complaints from other sources may also generate an ethics case, and committees may themselves initiate a complaint sua sponte from information that comes to its attention.118 ABFDE will not accept anonymous complaints, nor will it entertain complaints that involve pending litigation in which the respondent is testifying or is a consulting expert.119 At the conclusion of the litigation, the ethics case will be resurrected, which will leave the litigants in court cases in positions to file motions for new trials or to vacate settlement agreements if the ethics committee finds the respondent’s misconduct led to something other than a scientifically sound opinion. Except for one society, there are no time limitations in which a complaint may be filed, which in some cases creates issues concerning the availability of evidence and witnesses. Just how stale a case can be and the grounds for dismissing it for that reason are unclear and addressed on an ad hoc basis. Only AFTE appears to have its own version of a statute of limitations. Its procedures require that a complaint must be submitted “no later than 90 days after the complainant discovers that the ethical violation has occurred”.120 Ethics committees are not prohibited from proceeding when the accused refuses to respond or cooperate with the investigation or at a hearing. An AFTE member is required to “cooperate fully and in a timely fashion with the ethics process”,121 and a member of CAC has a “duty to assist the committee”.122 It is generally recognized that the burden of going forward and the burden of persuasion are on the association. The accused member often has the right to an attorney during the hearing, but in some organizations not during the investigative stage. In the AFTE, the ethics committee does not hold hearings, but conducts an investigation resulting in a report to the Board of Directors. The committee may request an interview of the accused, but the accused has no right to counsel at the interview.123 The
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right to counsel does not attach until the hearing phase of the inquiry.124 At a hearing before the ABFDE Board, an accused may make an oral presentation. No other person may do so for him or her. The hearing is considered by ABFDE as a procedural matter and not a legal proceeding. As a result the accused may not have legal counsel or other agent present at the time of his or her oral presentation.125 Due process considerations are important to the veracity of the hearing, and the perception of fairness by members of the association. Generally, organizations provide notice to the accused, give a right to respond and appear at a hearing, the right to counsel, to discovery and to present evidence. Several organizations provide a right to confront his or her accuser.126 Problems may occur when the complainant is not a member of the association, so it has no power to compel attendance. In other situations, the complainant may not have any first-hand information, and the case can be decided on relevant information obtained elsewhere. In those situations, confrontation between the complainant and the accused will likely not be constructive. The burden of proof varies among those associations that specify a certain level of proof must be attained. The AAFS has the most stringent burden of proof, that being clear and convincing evidence.127 Others prescribe a preponderance of the evidence.128 The degree of reliability and trustworthiness of the evidence considered by the committees is not articulated often. Only “evidence that can be verified and corroborated” may be relied upon by ABFDE.129 The President of the CAC determines the admissibility of evidence in a hearing before the Board. He or she “may be guided but shall not be governed by the Evidence Code of the State of California”.130 Ethics committees, whether they hold hearings or are just an investigatory entity, write reports for their executive body, often containing characterization of the alleged conduct and recommendations for sanctions. These reports do not need unanimous consent of the committee. For example, the required vote ranges from a majority to two-thirds of the committee. There are times when the dissenting party or parties wish to express their reasons for disagreement. Not all enforcement procedures allow for a minority report. ASCLD allows for a minority, dissenting report,131 as does AFTE,132 whereas ABFDE directs each member of the Professional Review Committee to prepare his or her own report, all of which are sent to the Chair who determines from examining all the reports whether there is a consensus among the members of the PRC.133
4.2 The Imposition of Sanctions Determining an appropriate sanction can be challenging. Sanctions provided for by organizations range from reproval to expulsion or decertification, and in some organizations no imposition of a sanction is an alternative even if an ethical violation is proven. It is in the interest of the organization to provide consistency in its assessment of sanctions. For many societies, there are no guidelines, and as the members of the committee change, so
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may attitudes toward punishment. ABFDE and AFTE provide considerations to be evaluated in conjunction with imposing a sanction.134 Set forth below are the considerations that an AFTE Board member should consider when imposing a sanction.135 1. Whether an injustice in the criminal justice system has resulted from unethical behavior. 2. Whether an injustice in the criminal justice system would likely have resulted from such unethical behavior. It shall not be a defense that no injustice actually did occur in the specific case, if an injustice was likely to have occurred. 3. Whether the individual had previously been disciplined for ethical violations by this or a similar association. 4. Whether the conduct exhibited a flagrant disregard for ethical considerations or was merely an exercise of bad judgment. 5. Whether the conduct was an isolated incident or was part of a pattern of continuing unethical conduct. 6. Whether the Accused recognizes the ethical violation and expresses regret and remorse for his/her conduct. 7. Whether the Accused has been honest and open with the Ethics Committee in its investigation. Frustration may occur when a member who is under investigation for an ethics violation resigns from the association prior to a full adjudication of the allegations of misconduct. The member leaves with no blemish on his or her record, and the public and justice system may never know of the indiscretion. AAFS, ASCLD, CAC, NEAFS and SWAFS all terminate the ethics proceedings if the member resigns. The AFTE may continue the investigation regardless of the resignation of the accused.136 The ASCLD Ethics Committee loses jurisdiction if the accused ceases to be a member, but the President shall issue an “Order of Exclusion”. That order has the effect of barring the accused from membership until it is rescinded by a majority vote of the Board. Should that happen, the ethics investigation will resume.137 It is important that members of an association, the legal profession, and the general public be aware of the disposition of allegations of ethical misconduct. Therefore, many associations publish the results of their findings and sanctions. AFTE, for example, publishes expulsions and public censures in its official publication, along with a summary of the facts.138 The facts and sanctions along with “[s]pecific names, places and like identifying information” are published to the membership by the CAC.139 The AAFS also names the accused member when it publishes in the Academy News a finding by the Board of Directors of a violation of its code.140 ABFDE, on the other hand, compiles for the education of its members an annual report indicating the type of complaints received and their disposition, but the identities of all complainants and respondents are kept anonymous.141
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4.3 Enforcement Enforceability is different from enforcement. An association has to have the will and the resources to investigate an allegation of unethical conduct, to hold a hearing, and to pursue the case through the internal appeals process. The internal enforcement process is not the end-game. Frequent litigation ensues after sanctions have been imposed. Organizations like those referenced in this chapter can fairly be described as falling into the category of “gatekeepers” over the rightful practice of a lawful trade or profession.142 Indeed, the livelihood of the individual member may be at stake after the imposition of a sanction by his or her discipline-specific organization. As the result of the litigious nature of sanctioned members, organizations are sometimes hesitant to take on an ethics issue fearing the impact on the organization’s finances. Not only would the organization have attorneys’ fees to pay, they may also be liable for a monetary judgment if it received an adverse ruling on the merits of the case. That is of a potential concern, regardless of the size of the organization, as was exhibited in a case involving the AAFS. The following description of the ethics process involving James A. Blanco is taken from an AAFS statement published on its website at http://www.aafs.org/ academy-resolves-litigation-involving-expulsion-member. On June 13, 2008, following an evidentiary hearing, the Academy’s Ethics Committee found clear and convincing evidence that Blanco had violated Section 1(a) of the Academy’s Code of Ethics and Conduct by submitting an erroneous and misleading report to be used in the judicial process, thereby diminishing confidence in forensic scientists and their disciplines. The Ethics Committee also found, by clear and convincing evidence, that Blanco had violated Section 1(c) of the Code of Ethics and Conduct by knowingly misrepresenting the data used to arrive at his conclusions in his report. As a result, the Ethics Committee recommended that Blanco be expelled from the Academy. On September 16, 2008, the Academy’s Board of Directors voted to adopt the recommendations of the Ethics Committee and ordered the expulsion of Blanco from the Academy. Blanco appealed the expulsion order to the entire membership of the Academy, which voted on February 18, 2009 to uphold the Board of Directors’ expulsion order. In June 2009, Blanco filed a lawsuit seeking to overturn his expulsion in the United States District Court for the Northern District of California, San Francisco Division, entitled James A. Blanco v. American Academy of Forensic Sciences, case no. C 09-02780 SI. On February 17, 2010, the Court handed down its opinion rejecting Blanco’s request for an injunction against the Academy attempting to overturn his expulsion. The full text of the Court’s reported decision can be found on Westlaw at 2010 WL 597985 (N.D.Cal. 2010), and on Lexis at 2010 U.S. Dist. LEXIS 20698.
Although Blanco’s attempt to obtain an injunction failed, he continued to press his federal law suit. During settlement negotiations he and the Academy reached an agreement. As the AAFS President reported in the same on-line statement: The Academy’s Board of Directors has agreed to a non-monetary settlement of the lawsuit brought by James Blanco, a former member of the Academy who was expelled after having been
Codes of Ethics in Forensic Science Societies
found to have committed ethical violations in 2008 following an investigation of the Academy’s Ethics Committee. To put an end to the nuisance of continued litigation, and the associated time and expense to the Academy, the Board of Directors resolved to settle the lawsuit under terms which simultaneously vacated the Board’s expulsion and permitted Mr. Blanco to withdraw from the Academy in exchange for his pledge to never again seek admission to the Academy and to refrain from any further lawsuits against the Academy and its members.143
The AAFS President described the lawsuit as a “nuisance” lawsuit and sought to protect the Academy’s treasury. Certainly that was accomplished with a “non-monetary” settlement. It ensured that “the Academy’s resources remain devoted to its mission”.144 One may wonder, however, why the Academy would settle a lawsuit over an expulsion when the basis for expulsion appeared so strong, the financial status of the association was excellent, and the Academy’s commitment to ethical behavior has always been unquestioned. The answer may be in the fact that all litigation has some risk. But that is what insurance is for – maybe. Insurance contracts often have what is frequently referred to as “hammer clauses”. Here is a description of a hammer clause found in Directors and Officers Liability Insurance Policies: Hammer clause: This is typically found in the defense section of a D&O policy and is the result of the insured’s right to consent to a settlement. Most D&O policies give the insured the right to consent, and therefore, to withhold consent, to a settlement. However, the insurer wants to be protected in those instances where it wants to settle a claim so as to limit its liability and the claimant is agreeable, but the insured refuses. In such an instance, the hammer clause generally states that the insurer’s liability is limited to that amount for which the case could have been settled, plus defense costs incurred up to the date that the claim could have been settled. In the event that the insured’s refusal to settle ends up costing more money (i.e., the case is settled for more later, or results in a judgment for more, or simply more defense costs are incurred) then the insurer is not liable for those additional amounts.145
In other words, if the association rejects the settlement offer the insurance company wants to accept, the association is responsible for any payment above that offer. The Blanco settlement was a “non-monetary” agreement, that is, the insurance company would only have to pay its own attorneys’ fees and walk away from the case. Had the Academy stood on principle, and a judgment against the Academy in any amount resulted from the continued litigation, it would have to shoulder the full burden of payment plus the insurer’s attorneys’ fees. Because of the uncertainty of any litigation, that risk was too much for the AAFS. On the other hand, if the settlement offer by the plaintiff in a lawsuit is high, then the hammer clause may be irrelevant. In addition, serious settlement discussion may not start until after the motions for summary judgment have been ruled upon, and the court finds that there is a genuine issue of fact to be tried before a judge or jury.
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In Dougherty v. Haag,146 Paul M. Dougherty was censured by AFTE because of a report and testimony delivered in an unreasonable-use-of-force case. Dougherty was employed as an expert by the State of Louisiana, and Lucien Haag was employed by the plaintiff. Haag filed an ethics complaint with AFTE against Dougherty. The ethics committee investigation concluded that Dougherty had given testimony that “was not objective, not well supported by past experience or experiment and reflected either seriously flawed science or was a deliberate attempt to mislead the court”.147
Dougherty filed a common law right of fair procedure case in California.148 Under the common law doctrine of fair procedure, where it is applicable, an organization may not exclude or expel an individual arbitrarily, “either because the reason for the exclusion or expulsion is itself irrational or because, in applying a given rule to a particular case, the society has proceeded in an unfair manner.” Thus, the doctrine has both substantive and procedural aspects: “[W]henever a private association is legally required to refrain from arbitrary action, the association’s action must be both substantively rational and procedurally fair.” The procedural element need not have the same level of formality of a court trial, but the person “must at least be provided with some meaningful opportunity to respond to the ‘charges’ against him [or her].”149 (Citations omitted.)
The case proceeded as follows: … [O]n May 16, 2005, Dougherty filed this action in Orange County Superior Court, seeking both a writ of mandate to overturn the censure and asserting various causes of action against Haag and AFTE (mostly tort, one was for breach of contract). [The trial judge] denied the petition for writ of mandate in December of 2006, finding that, “Based upon the totality of the administrative record, this Court does not find any material deviations from the AFTE Bylaws or the Procedures for Enforcement of the Code of Ethics, nor does it find any credible evidence of bias, conflicts of interest, or procedural due process violations.” The remaining claims quickly fell in a motion for judgment on the pleadings, and in January 2007, a judgment was entered in favor of Haag, AFTE, and the other defendants. Dougherty timely appealed in March.150
The appellate court applied the right to fair procedure to AFTE’s process for resolving ethical allegations and imposing sanctions against its members. In the court’s words, “there was a surfeit of fair procedure” provided Dougherty by AFTE.151 Put another way, the court proclaimed that Dougherty received an “avalanche of ‘due process’”.151 Not surprisingly, the court affirmed the judgment of the lower court. While the right to fair procedure may be a uniquely California common law right, the Haag case has general importance for all forensic science organizations. Any time allegations against a member of an organization are to be adjudicated with the potential for sanctions, he or she ought to be treated fairly, equitably, with the minimal process of notice and the right to respond to the allegations. Additional procedural protections will strengthen an organization’s defense against allegations of arbitrariness,
Codes of Ethics in Forensic Science Societies
capriciousness or discriminatory practices, and in California they will go a long way toward establishing that a right to fair procedure was in fact afforded. A lawsuit filed by a sanctioned member is often difficult, time consuming and sometimes expensive. Having the perseverance to do so on principled grounds founded on the association’s code of ethics or professional responsibility should be applauded. As Judge Sills concluded in the Dougherty v. Haag matter discussed above: A private organization whose purpose is to ensure the integrity of expert testimony actually had the gumption to censure a member whose testimony bordered on the ludicrous …. The organization painstakingly gave the errant member multiple opportunities to explain why his testimony wasn’t as bad as it looked, and ultimately, after about four years of internal due process, his peers censured him. In our opinion, they didn’t deserve a lawsuit, they deserve a medal.
One way to avoid time consuming and expensive litigation is to go to arbitration. Only one enforcement process has provisions for arbitration. The ABFDE provides for mandatory and binding arbitration if there is a dispute between the Board and a member charged with an ethics violation. Failure of the member to request arbitration renders the decision of the Performance Review Committee final. The arbitration has to be conducted within a year and the findings of the arbitrator are final and binding on all parties.152
5. CONCLUSION Forty years after Professor James Starrs encouraged all forensic scientists to abide by strong ethics and professional guidelines, the forensic science community is still not homogeneous in its coverage of forensic scientists by codes of ethics or conduct. There are many codes of ethics and professional responsibility that cover some, but not all, forensic scientists. The codes differ in specificity, giving some scientists clear guidance and others broad, general prescriptions. The American Society of Crime Laboratory Directors/Laboratory Accreditation Board has enacted Guiding Principles of Professional Responsibility that cover most of the publicly and privately funded traditional crime laboratories and their personnel. It is that type of coverage that was envisioned in the NAS report on the status of forensic science in the United States. Nevertheless, there are still many forensic examiners who conduct examinations and testify in court who are not covered by any code of ethics or professional responsibility. More has to be accomplished to include all those experts practicing in the criminal and civil justice systems in the United States. Even when covered by a code, individuals who are alleged to have violated it may not be proceeded against by their organization. Most organizations that have codes also have enforcement provisions. Some organizations, however, are reluctant to prosecute
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the case against its member for fear of subsequent civil litigation which, even if the organization prevails, will cost money and likely result in their insurance company terminating the organization’s coverage. Without the will and the process to enforce its code, the organization’s best hope may be that the moral persuasion of its code and peer pressure will prevail on its members to avoid unethical and unprofessional conduct.
NOTES AND REFERENCES [1] Kenneth E. Melson is an adjunct professor at The George Washington University Law School, a board member of the American Society of Crime Laboratory Directors/Laboratory Accreditation Board, a co-chair of the Executive Office of the President’s National Science and Technology Council’s Subcommittee on Forensic Science, and a Senior Advisor on Forensic Science at the U.S. Department of Justice. The views and opinions expressed herein are solely his own and do not necessarily reflect those of any organization or agency to which the author belongs. [2] “[A] traditional crime laboratory has been defined as constituting ‘a single laboratory or system comprised of scientists analyzing evidence in one or more … discipline[ ] ….’” “Identification units” are those outside of traditional crime laboratories, usually within local police departments and do not offer a full range of forensic disciplines. National Academies of Sciences, National Research Council, Strengthening Forensic Science in the United States: A Path Forward, The National Academies Press, Washington, D.C., 2009, pp. 36–37 and 63–64. [3] J.L. Peterson, J.E. Murdock, Forensic science: Developing an integrated system of support and enforcement, Journal of Forensic Sciences 34 (1989) 749–762, 759. “A survey of 50 criminalistics laboratories in the summer of 1987 yielded returns of only 6 such codes, many of which were of the parent police agency and not particularly relevant to forensic science matters.” But see the Illinois State Police Forensic Sciences Command Rules of Conduct/Code of Ethics, http://www.isp.state. il.us/forensics/. [4] ASCLD/LAB Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, http://www.ascld-lab.org/. As of May 6, 2011, 385 crime laboratories were accredited by ASCLD/LAB, including 192 state laboratories, 128 local agency laboratories, 23 federal laboratories, 17 international (outside the United States) laboratories and 25 private laboratories. [5] J.L Peterson, J.E. Murdock, Forensic science: Developing an integrated system of support and enforcement, Journal of Forensic Sciences 34 (1989) 749–762, 759. [6] National Academies of Sciences, National Research Council, Strengthening Forensic Science in the United States: A Path Forward, The National Academies Press, Washington, D.C., 2009. [7] K.E Melson, Embracing the path forward: The journey to justice continues, New Eng. J. on Crim. & Civ. Confinement 36 (Summer 2010) 197. [8] http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/ history-ama-ethics.page? [9] The NWAFS website link to the Code of Ethics indicates that it is a “proposed” code. There is no indication on the webpage for the Code of Ethics whether it has been adopted by NWAFS. [10] J.E. Starrs, The ethical obligations of the forensic scientist in the criminal justice system, J. of the AOAC 54 (1971) 906–914, 914. [11] See the Paul Coverdell National Forensic Science Improvement Act (P.L. 106–561) grant program, 42 U.S.C. § 3797k(4) which requires as part of the application for a grant that the applicant certify that: “a government entity exists and an appropriate process is in place to conduct independent external investigations into allegations of serious negligence or misconduct substantially affecting the integrity of the forensic results committed by employees or contractors of any forensic laboratory system, medical examiner’s office, coroner’s office, law enforcement storage facility, or medical facility in the State that will receive a portion of the grant amount.”
Codes of Ethics in Forensic Science Societies
[12] D.M. Lucas, The ethical responsibilities of the forensic scientist: Exploring the limits, Journal of Forensic Sciences 34 (1989) 719–729, 727. [13] O.C. Schroeder, Ethical and moral dilemmas confronting forensic scientists, Journal of Forensic Sciences 29 (1984) 966–986, 969. [14] Forensic Toxicologist Certification Board, Inc. (FTCB), http://home.usit.net. [15] National Association of Medical Examiners (NAME), http://thename.org/. [16] Association of Forensic DNA Analysts and Administrators (AFDAA), By-Laws, Article III, E.1. http://www.afdaa.org/Welcome.html. [17] Mid-Atlantic Association of Forensic Scientists (MAAFS), Code of Ethics, 1.2.4. http://www.maafs. org. [18] American Society of Crime Laboratory Directors (ASCLD) Code of Ethics, http://www.ascld.org/. [19] See National Association of Medical Examiners (NAME) Code of Ethics and Conduct, http:// thename.org/, and American Academy of Forensic Sciences (AAFS) Code of Ethics and Conduct, http://www.aafs.org. [20] Northwest Association of Forensic Scientists (NWAFS) By-Laws, Chapter III, Section 3.E.(1); Constitution Article VI, Section 2. http://www.nwafs.org/. [21] The American Board of Forensic Document Examiners has a document entitled “Code of Ethics and Standard Practices,” the opening paragraph of which calls the same document the “Code of Ethics and Competency”. [22] Forensic Toxicologist Certification Board, Inc. (FTCB) Code of Ethics, http://home.usit.net. [23] Southwestern Association of Forensic Scientists (SWAFS), Code of Professional Conduct Section VI. http://www.swafs.us/. [24] American Academy of Forensic Sciences (AAFS) Board of Directors’ Policy and Procedure Manual, Section 4.4.4.6, http://www.aafs.org; National Association of Medical Examiners (NAME) Code of Ethics and Conduct Section 1.g., http://thename.org/. [25] National Association of Medical Examiners (NAME) Code of Ethics and Conduct Section 1.g. http://thename.org/. [26] National Association of Medical Examiners (NAME) Code of Ethics and Conduct Section 1.a. http://thename.org/ and American Academy of Psychiatry and the Law Ethical Guidelines for the Practice of Forensic Psychiatry, Section I. http://www.aapl.org/. [27] Illinois State Police, Forensic Sciences Command, Rules of Conduct/Code of Ethics, Section VIII.C. http://www.isp.state.il.us/forensics/. [28] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, p. 15. [29] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, p. 189. [30] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, p. 205. [31] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, p. 206. [32] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, p. 208. [33] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, p. 33. [34] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, p. 47, 247. [35] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, p. 247. [36] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, pp. 247–253. [37] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, p. 47. [38] Report to the AAFS Board of Directors from the Ethics and Long Term Planning Committees about Their Joint Review of the AAFS Code of Ethics and Its Administration, June 21, 2007, p. 1.
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[39] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, pp. 58–59. [40] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, p. 289. [41] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, p. 290. [42] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, pp. 289–290. [43] J.L. Peterson, Symposium: Ethical conflicts in the forensic sciences, Journal of Forensic Sciences 34 (1989) 717. [44] J.L. Peterson, Symposium: Ethical conflicts in the forensic sciences, Introduction, Journal of Forensic Sciences 34 (1989) 717. [45] P.D. Barnett, Ethics in Forensic Science: Professional Standards for the Practice of Criminalistics, CRC Press, (2001) p. 28. [46] Report by Dr. Robert Weinstock, Chair, Good Forensic Practice Committee to the Executive Committee, American Academy of Forensic Sciences, January 14, 1999. [47] American Academy of Forensic Sciences (AAFS) Code of Ethics and Conduct, Section 1.c. http:// www.aafs.org. [48] P.D. Barnett, Ethics in Forensic Science: Professional Standards for the Practice of Criminalistics, CRC Press, (2001) p. 27. [49] P.D. Barnett, Ethics in Forensic Science: Professional Standards for the Practice of Criminalistics, CRC Press (2001) p. 30. [50] American Board of Forensic Toxicology (ABFT) Code of Ethics, http://www.abft.org/. [51] The Forensic Science Society, UK (FSSoc) Code of Conduct, Section 2. http://www.forensicscience-society.org.uk. [52] ASCLD/LAB Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, fn i. http://www.ascld-lab.org/. [53] Illinois State Police Forensic Sciences Command Rules of Conduct/Code of Ethics, http://www. isp.state.il.us/forensics/. [54] The Code of Ethics of the California Association of Criminalists (CAC), http://www.cacnews.org/ [55] See for example the European Network of Forensic Science Institutes (ENFSI) Code of Conduct, http://www.enfsi.eu/, and the Academia Iberoamericana de Criminalistica y Estudios Forenses (Iberoamerican Academy of Criminalistics and Forensic Studies) (AICEF) Code of Conduct, http://www.aicef.net/; American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, http://www.ascld-lab.org/, and Society of Forensic Toxicologists (SOFT) Guiding Principles of Professional Responsibility, http://www.soft-tox.org/. [56] For example, the NWAFS Code of Ethics is remarkably similar to the CAC Code of Ethics. [57] M.J. Saks, Prevalence and impact of ethical problems in forensic science, J. Forensic Sci. 34 (1989) 772–793, 784–785. [58] Northeastern Association of Forensic Scientists (NEAFS) Code of Ethics, Article II. 1. prohibits the acceptance of gifts to influence NEAFS members in an official capacity for NEAFS, not the individual’s employer. Gratuities or bribes to influence a public official is a violation of state and federal law. http://www.neafs.org/. [59] Mid-Atlantic Association of Forensic Scientists (MAAFS) Code of Ethics, Section 1.2.1 prohibits the acceptance of gifts to influence MAAFS members in an official capacity for MAAFS, not the individual’s employer. Gratuities or bribes to influence a public official is a violation of state and federal law. http://www.maafs.org/. [60] Academia Iberoamericana de Criminalistica y Estudios Forenses (Iberoamerican Academy of Criminalistics and Forensic Studies) (AICEF) Code of Conduct, Section 10. http://www.aicef.net/; European Network of Forensic Science Institutes (ENFSI) Code of Conduct, Section 10. http:// www.enfsi.eu/. [61] European Network of Forensic Science Institutes (ENFSI) Code of Conduct, Section 11. http:// www.enfsi.eu/; Academia Iberoamericana de Criminalistica y Estudios Forenses (Iberoamerican
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Academy of Criminalistics and Forensic Studies) (AICEF) Code of Conduct, Section 10. http:// www.aicef.net/. [62] American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, Section 11. http://www.ascld-lab.org/; Society of Forensic Toxicologists (SOFT) Guiding Principles of Professional Responsibility, Competency and Proficiency, Section 3. http://www.soft-tox.org/. [63] See, for example, Standards of Professional Conduct for Members of the International Association for Identification (IAI), paragraph 18. http://www.theiai.org/; Association of Firearms and Toolmark Examiners Code of Ethics (AFTE), Section II.A. http://www.afte.org/. [64] Code of Professional Conduct, Southwestern Association of Forensic Scientists (SWAFS), Section III.C. http://www.swafs.us/. [65] Mid-Atlantic Association of Forensic Scientists Code of Ethics (MAAFS) Section 1.3.4. http://www. maafs.org/; Northeastern Association of Forensic Scientists (NEAFS), Article III, Section 4. http:// www.neafs.org/. [66] Midwestern Association of Forensic Scientists (MAFS) Code of Ethics, Section II. A. http://www. mafs.net/. [67] M.J. Saks, Prevalence and impact of ethical problems in forensic science, J. Forensic Sci. 34 (1989) 772–793, 783. [68] However, see the SOFT Guidelines of Professional Responsibility which were adopted in June of 2011, and based substantially on the ASCLD/LAB Guiding Principles. Society of Forensic Toxicologists (SOFT), http://www.soft-tox.org/. [69] American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, Section 12. http://www.ascld-lab.org/. [70] The Code of Ethics of the California Association of Criminalists (CAC) Section I.E. http://www. cacnews.org/. [71] American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, Section 15. http://www.ascld-lab.org/; Society of Forensic Toxicologists (SOFT) Guiding Principles of Professional Responsibility, Clear Communications, Section 3. http://www.soft-tox.org/; Canadian Society of Forensic Science (CSFS) Code of Conduct, Section 9. http://www.csfs.ca/. [72] American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, Section 11. http://www.ascld-lab.org/; Society of Forensic Toxicologists (SOFT) Guiding Principles of Professional Responsibility, Clear Communications, Section 3. http://www.soft-tox.org/; also see Canadian Society of Forensic Science (CSFS) Code of Conduct, Section 7.b. http://www.csfs.ca/. [73] Mid-Atlantic Association of Forensic Scientists Code of Ethics (MAAFS) Section 1.1.2. http://www. maafs.org/. [74] American Society of Questioned Document Examiners (ASQDE) Code of Ethics, Section 2, presented at the 50th Anniversary Conference of the ASQDE by James V. P. Conway, August 22 through 26, 1992. [75] American Society of Questioned Document Examiners (ASQDE) Code of Ethics, Section b). http://www.asqde.org/. [76] Standards of Professional Conduct for Members of the International Association for Identification (IAI), Section 6. http://www.theiai.org/. [77] American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, Section 9. http://www.ascld-lab.org/; Society of Forensic Toxicologists (SOFT) Guiding Principles of Professional Responsibility, Competency and Proficiency, Section 2. http://www.soft-tox.org/. [78] Mid-Atlantic Association of Forensic Scientists (MAAFS) Code of Ethics, Section 1.4.8. http://www. maafs.org/; Midwestern Association of Forensic Scientists (MAFS), Section I.H. http://www.mafs.net/. [79] Mid-Atlantic Association of Forensic Scientists (MAAFS) Code of Ethics, Section 1.5.4. http:// www.maafs.org/; Midwestern Association of Forensic Scientists (MAFS), Section II.D. http://www. mafs.net/.
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[80] Asian Forensic Science Network Code of Conduct (AFSN), Paragraph 9. http://www.asianforensic. net/. [81] American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, Section 10. http://www.ascld-lab.org/. [82] Association of Firearms and Toolmark Examiners (AFTE) Code of Ethics, IV.B. http://www.afte. org/; The Code of Ethics of the California Association of Criminalists (CAC), Section IV.C. http:// www.cacnews.org/; Mid-Atlantic Association of Forensic Scientists (MAAFS) Code of Ethics, 1.7.2. http://www.maafs.org/. [83] American Board of Criminalistics Rules of Professional Conduct, paragraph 13. http://www. criminalistics.com/. [84] American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, paragraph 5. http://www.ascld-lab.org/; Society of Forensic Toxicologists (SOFT) Guiding Principles of Professional Responsibility, Professionalism, Secion 5. http://www.soft-tox.org/. [85] American Board of Criminalistics (ABC) Rules of Professional Responsibility, paragraph 13. http:// www.criminalistics.com/. [86] Australian and New Zealand Forensic Science Society (ANZFSS) Code of Ethics, Conduct in Court, 4. http://www.anzfss.org.au/. [87] Asian Forensic Science Network Code of Conduct (AFSN), Section 8. http://www.asianforensic.net/; Australian and New Zealand Forensic Science Society, Inc. (ANZFSS) Code of Ethics, Reporting, Section 7. http://www.anzfss.org.au/. [88] Academia Iberoamericana de Criminalistica y Estudios Forenses (Iberoamerican Academy of Criminalistics and Forensic Studies) (AICEF) Code of Conduct, Section 13. http://www.aicef.net/; Asian Forensic Science Network Code of Conduct (AFSN), Section 6. http://www.asianforensic. net/. [89] Academia Iberoamericana de Criminalistica y Estudios Forenses (Iberoamerican Academy of Criminalistics and Forensic Studies) (AICEF) Code of Conduct, Section 16. http://www.aicef.net/; Asian Forensic Science Network Code of Conduct (AFSN), Section 10. http://www.asianforensic. net/; European Network of Forensic Science Institutes (ENFSI) Code of Conduct, Section 16. http:// www.enfsi.eu/. [90] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, 1.B. http://www.afte.org/. [91] See, for example, International Association for Identification (IAI) Standards of Professional Conduct, paragraph 14. http://www.theiai.org; and the American Board of Criminalistics (ABC) Rules of Professional Responsibility, paragraph 2. http://www.criminalistics.com/. [92] Association of Firearms and Toolmark Examiners (AFTE) Code of Ethics, IV.C. http://www.afte. org; Code of Ethics of the California Association of Criminalists (CAC), Section IV. D. http://www. cacnews.org/. [93] National Association of Medical Examiners (NAME) Code of Ethics and Conduct, paragraph 1.f. http://thename.org/. [94] Code of Ethics of the California Association of Criminalists (CAC), Section III.B. http://www. cacnews.org/; Association of Firearms and Toolmark Examiners (AFTE) Code of Ethics, Section III.A. http://www.afte.org/. [95] Mid-Atlantic Association of Forensic Scientists (MAAFS) Code of Ethics, Section 1.6.4. http:// www.maafs.org/. [96] The Code of Ethics of the California Association of Criminalists (CAC), headnote. A set of amendments in 2010 dealt with gender, grammar and typographical errors. http://www.cacnews.org/. [97] 42 U.S.C. § 3797k. [98] American Board of Criminalistics (ABC) Rules of Professional Conduct, Rule 18. http://www. criminalistics.com/; American Society of Crime Laboratory Directors (ASCLD) Code of Ethics, Section 2.10. http://www.ascld.org/; International Association for Identification Standards of Professional Conduct, Rule 12 (IAI). http://www.theiai.org/; Mid-Atlantic Association of Forensic Scientists (MAAFS) Code of Ethics, Rule 1.2.5. http://www.maafs.org/.
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[99] Southwestern Association of Forensic Scientists (SWAFS) Code of Professional Responsibility, II. D. http://www.swafs.us/. [100] Midwestern Association of Forensic Scientists (MAFS) Code of Ethics,V. C. http://www.mafs.net/. [101] American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, paragraph 5. http://www.ascld-lab.org/; also see Society of Forensic Toxicologists (SOFT) Guiding Principles of Professional Responsibility, Professionalism, Section 5. http://www.soft-tox.org/. [102] American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, paragraph 5. http://www.ascld-lab.org/; Society of Forensic Toxicologists (SOFT) Guiding Principles, Section 6. http://www.soft-tox.org/. [103] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section I.A. http://www.afte.org/. [104] The policy manuals are generally available to the public on the web, except for ABC which requires payment for a copy of their procedures. [105] Expulsion may only be accomplished by a 3/4 vote of the membership at the annual business meeting. Northeastern Association of Forensic Scientists (NEAFS) By-laws, Article 9e. http:// www.neafs.org/. [106] See the Disciplinary Regulations of the Forensic Science Society, UK (FSSoc), http://www.forensicscience-society.org.uk/. [107] See, for example, American Academy of Forensic Sciences (AAFS) Code of Ethics and Conduct, Section V. i. http://www.aafs.org; California Association of Criminalists (CAC) The Code of Ethics Enforcement of the CAC, IV. A. 3. http://www.cacnews.org/. [108] International Association for Identification (IAI) By-laws, Section 16.01(a) (7). http://www.theiai. org/. [109] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section IV. H. 11. c) (4). http://www.afte.org/. [110] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section IV. I. 14. c). http://www.afte.org/. [111] The Code of Ethics Enforcement of the California Association of Criminalists (CAC), Section III. B. 5. (b). http://www.cacnews.org/. [112] American Board of Forensic Document Examiners (ABFDE) Professional Review Procedures, Section III. H. http://www.abfde.org/. [113] American Board of Forensic Document Examiners (ABFDE) Professional Review Procedures, Section II. F. http://www.abfde.org/. [114] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section IV. A. 5. http://www.afte.org/. [115] American Society of Crime Laboratory Directors (ASCLD) Code of Ethics, Section 3. B. 6. http:// www.ascld.org/. [116] The Code of Ethics Enforcement of the California Association of Criminalists (CAC), Section II. C. 7. http://www.cacnews.org/. [117] See, for example, American Board of Forensic Document Examiners (ABFDE) Professional Review Procedures III. D. http://www.abfde.org/; American Society of Crime Laboratory Directors (ASCLD) Code of Ethics, Section 3. A. 4. http://www.ascld.org/. [118] See, for exmaple, American Board of Forensic Document Examiners (ABFDE) Professional Review Procedures 1. A. http://www.abfde.org/; American Society of Crime Laboratory Directors (ASCLD) Code of Ethics, Section 3. A. 3. http://www.ascld.org/; American Academy of Forensic Sciences (AAFS) Board of Directors Policy and Procedure Manual, Section 6.1.3.7. http://www.aafs.org. [119] American Board of Forensic Document Examiners (ABFDE) Professional Review Procedures, Sections I. D. and III. A. http://www.abfde.org/. [120] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section IV. C. 1. http://www.afte.org/. [121] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section IV. A. 3. http://www.afte.org/.
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[122] The Code of Ethics Enforcement of the California Association of Criminalists (CAC), Section II. C. 8. http://www.cacnews.org/. [123] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section IV. E. 5. b). http://www.afte.org/. [124] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section IV. H. 5. http://www.afte.org/. [125] American Board of Forensic Document Examiners (ABFDE) Professional Review Procedures, Section V. D. 3. http://www.abfde.org/. [126] See, for example, American Society of Crime Laboratory Directors (ASCLD) Code of Ethics, Section 3. B. 6. http://www.ascld.org/; National Association of Medical Examiners (NAME) Code of Ethics and Conduct, 5. g. http://thename.org/; Northeastern Association of Forensic Scientists (NEAFS) Code of Ethics, Article IV. 3. c. http://www.neafs.org/. [127] American Academy of Forensic Sciences (AAFS) Board of Directors Policy and Procedure Manual, Section 6.1.3.7. http://www.aafs.org. [128] See, e.g., American Society of Crime Laboratory Directors (ASCLD) Code of Ethics, Section 3. C. Hearings, 6. http://www.ascld.org/; Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section IV. H. 11 a). http://www.afte.org/. [129] American Board of Forensic Document Examiners (ABFDE) Professional Review Procedures, Section 1. C. http://www.abfde.org/. [130] The Code of Ethics Enforcement of the California Association of Criminalists (CAC), Section III. B. 3. (e). http://www.cacnews.org/. [131] American Society of Crime Laboratory Directors (ASCLD) Code of Ethics, Section 3. C. Hearings, 8. http://www.ascld.org/. [132] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section IV. F. 4. b). http://www.afte.org/. [133] American Board of Forensic Document Examiners (ABFDE) Professional Review Procedures, Section IV. A. http://www.abfde.org/. [134] American Board of Forensic Document Examiners (ABFDE) Professional Review Procedures, Section V. I. http://www.abfde.org/; Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section III. A. http://www.afte.org/. [135] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section III. A. http://www.afte.org/. [136] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section II. D. http://www.afte.org/. [137] American Society of Crime Laboratory Directors (ASCLD) Code of Ethics, Section 3. C. Inquiries, 6. http://www.ascld.org/. [138] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section IV. J. http://www.afte.org/. [139] The Code of Ethics Enforcement of the California Association of Criminalists (CAC), Section III. C. 1. http://www.cacnews.org/. [140] American Academy of Forensic Sciences (AAFS) Board of Directors Policy and Procedure Manual, Section 6.1.4.3. http://www.aafs.org. [141] American Board of Forensic Document Examiners (ABFDE) Professional Review Procedures, Section VI. C. http://www.abfde.org/. [142] See Dougherty v. Haag, 165 Cal. App. 4th 315, 317, 81 Cal. Rptr. 3d 1, 2 (2008) and Yari v. Producers Guild of America, Inc. 161 Cal. App. 4th 172, 176, 73 Cal. Rptr. 3d 803 (2008), 176, citing Ezekial v. Winkley (1977) 20 Cal. 3d 267, 272, 142 Cal. Rptr. 418, 572 P.2d 32 (1977). [143] The full text of the Settlement Agreement may be found at http://aafs.org/sites/default/files/pdf/ BlancoSettlementAgreement.pdf. [144] http://www.aafs.org/academy-resolves-litigation-involving-expulsion-member. [145] http://www.willis.com/documents/publications/Services/Executive_Risks/Willis_D&O_ Glossary2.pdf. [146] Dougherty v. Haag, 165 Cal. App. 4th 315, 81 Cal. Rptr. 3d 1 (2008).
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[147] Dougherty v. Haag, 165 Cal. App. 4th 315, 328, 81 Cal. Rptr. 3d 1, 9 (2008). [148] The right of fair procedure comes from California common law dating back to the 1800s. The common law right “should not be confused with constitutional ‘due process.’” Dougherty v. Haag, 165 Cal. App. 4th 315, 317, 81 Cal. Rptr. 3d 1, 2 (2008). [149] Davis v. First Health Group Corporation, 2009 WL 4172776 (Cal. App. 6th Dist.) 9. [150] Dougherty v. Haag, 165 Cal. App. 4th 315, 334, 81 Cal. Rptr. 3d 1, 14 (2008). [151] Dougherty v. Haag, 165 Cal. App. 4th 315, 340, 81 Cal. Rptr. 3d 1, 19 (2008). [152] American Board of Forensic Document Examiners (ABFDE) Professional Review Procedures, Section VII. F. http://www.abfde.org/ABFTE VII.
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Codes of Ethics in Forensic Science Societies: The Organizational Parameters of Morality and Conduct Kenneth E. Melson1
The vast majority of forensic science practitioners work in traditional crime laboratories or identification units.2 Many also belong to a forensic science professional organization. It is through their employment or membership in professional organizations, either membership societies or certification organizations, that they may become exposed to codes of ethics or rules of professional responsibility. This phenomenon exists because, with the exception of physicians, few laboratories or forensic units had their own codes to guide practitioners’ behavior,3 at least until ASCLD/LAB adopted a uniform code for their accredited laboratories.4 It is even less likely that forensic science practitioners in private practice have their own code of ethics to follow. Even if a practitioner belongs to a forensic science professional society, some organizations do not have an established code, or if they do, there is no effective enforcement mechanism. Consequently, for years, or more accurately decades, forensic scientists may not have been subject to enforceable codes or other parameters on their behavior, except perhaps through excoriation by courts rejecting evidence or reversing judgments of conviction because of professional nonfeasance or malfeasance by forensic scientists. Beyond that, “[t]he law per se does little to regulate the quality of expert testimony and professional status of forensic scientists.”5 The 2009 report of the National Research Council of the National Academy of Sciences recognized the disparity in the existing codes of ethics and their lack of widespread coverage.6 Recommendation 9 of the report encourages the adoption of a national code of ethics with a means of enforcement. Such a code, according to the report, could be enforced through certification organizations, once a requirement for individual certification becomes mandatory, as the report also recommended. Other means of establishing and enforcing a national code have also been proposed.7 This chapter reviews the current status of ethics codes in professional organizations, with a brief historical review of a few such codes. A review of the codes of ethics illustrates the variety, specificity and enforceability of these codes. The review also validates
Ethics in Forensic Science DOI: 10.1016/B978-0-12-385019-5.00004-X
Published by Elsevier Inc. 2012
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the NAS Report’s Recommendation 9, the need for a uniform code. Fortunately, one organization, ASCLD/LAB, has gone further than any other in an effort to require forensic science practitioners to adhere to a single code of professional responsibility. Physicians, in a unique position due to licensing requirements, have had to comply with state medical board ethics codes. The professional organization for forensic pathologists, the National Association of Medical Examiners, adopts the single national “authoritative ethics guide for practicing physicians”8 of the American Medical Association. As part of the review of codes of ethics and conduct, the codes from the following organizations principally based in the United States have been examined: American Academy of Forensic Sciences (AAFS), http://www.aafs.org American Academy of Psychiatry and the Law (AAPL), http://www.aapl.org/ American Board of Criminalistics (ABC), http://www.criminalistics.com/ American Board of Forensic Document Examiners (ABFDE), http://www.abfde.org/ American Board of Forensic Toxicology (ABFT), http://www.abft.org/ American Society of Crime Laboratory Directors (ASCLD), http://www.ascld.org/ American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB), http://www.ascld-lab.org/ American Society of Questioned Document Examiners (ASQDE), http://www.asqde.org/ Association of Firearms and Toolmark Examiners (AFTE), http://www.afte.org/ Association of Forensic DNA Analysts and Administrators (AFDAA), http://www.afdaa.org/Welcome.html California Association of Criminalists (CAC), http://www.cacnews.org/ Forensic Toxicologist Certification Board, Inc. (FTCB), http://home.usit.net Illinois State Police Forensic Sciences Command Rules of Conduct/Code of Ethics, http://www.isp.state.il.us/forensics/ International Association for Identification (IAI), http://www.theiai.org/ Mid-Atlantic Association of Forensic Scientists (MAAFS), http://www.maafs.org/ Midwestern Association of Forensic Scientists (MAFS), http://www.mafs.net/ National Association of Medical Examiners (NAME), http://thename.org/ Northeastern Association of Forensic Scientists (NEAFS), http://www.neafs.org/ Northwest Association of Forensic Scientists (NWAFS), http://www.nwafs.org/9 Society of Forensic Toxicologists (SOFT), http://www.soft-tox.org/ Southwestern Association of Forensic Scientists (SWAFS), http://www.swafs.us/ In addition, codes from the following international (other than US) organizations were examined. These organizations differ from those listed above (except for ASCLD) in that their membership consists of other forensic science organizations, rather than individual practitioners; they are instead forensic science networks of various regions of the world. ASCLD is the closest example in the United States, its membership being directors representing US forensic science laboratories.
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Academia Iberoamericana de Criminalistica y Estudios Forenses (Iberoamerican Academy of Criminalistics and Forensic Studies) (AICEF), http://www.aicef.net/ Asian Forensic Science Network Code of Conduct (AFSN), http://www.asianforensic.net/ Australian and New Zealand Forensic Science Society, Inc. (ANZFSS), http://www.anzfss.org.au/ Canadian Society of Forensic Science (CSFS), http://www.csfs.ca/ European Network of Forensic Science Institutes (ENFSI), http://www.enfsi.eu/ The Forensic Science Society, UK (FSSoc), http://www.forensic-science-society.org.uk/
1. CODES OF ETHICS IN PROFESSIONAL ORGANIZATIONS Individual stakeholders within the criminal justice community who rely on forensic science to inculpate or exculpate the accused may argue over the nature and scope of codes of ethics, but there is one concept that all should agree upon, which was enunciated in 1971 by Professor James Starrs: …the forensic scientist can wait no longer to tighten the outlines of the ethical guides that should be drawn to govern his conduct in the criminal justice system.10
That is as true today as it was when first stated. Hence, the value of a comparative examination of codes of ethics in forensic societies remains equally relevant where we are today, 40 plus years later. Until now, professional forensic science societies and certification organizations have been the primary sources of ethical guidance for forensic science. These societies vary in nature, from national and international societies such as the AAFS and IAI, representing a number of forensic science disciplines, to regional societies like CAC and MAAFS, to discipline-specific organizations like NAME and the Society of Forensic Toxicologists (SOFT). Individual practitioners might belong to more than one organization. Thus, an individual may belong to organizations that each have their own codes, differing in nature and scope from each other, some enforceable and some not, or having no code at all. Regardless of their nature, the day-to-day influence of these codes over the practitioner is frequently minimal. When adopted by their employing organizations, the codes become more important and more relevant.5 If an employer pays the dues for a professional organization membership, then this might be construed as an endorsement of the entity, and an implicit expectation that the employee member will comply with all the requirements of membership – including its ethical canons. If no enforcement mechanism is available for an association’s code, issues relating to the practice of forensic science may have to be referred to the practitioner’s employer. Until the ASCLD/LAB uniform guidelines were adopted, very few, if any, employing
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agencies had a code of ethics pertaining specifically to the forensic scientist (again with the exception of physicians and other medical practitioners who have had to comply with various state medical board ethical codes). Instead, employers had to fit ethical misconduct into the agency’s government code of ethics, for example, those that primarily relate to being a government employee. In other circumstances, the misconduct had to be handled through the performance work plan and the employee’s annual performance evaluation. If the misconduct was serious enough, the entity’s Internal Affairs Division or Office of Professional Responsibility might have investigated the alleged misconduct.11 These investigative entities most likely did not have any guidance on ethical considerations applicable to forensic science practitioners. A point should be made here, however, that mirrors a frequent refrain. The disciplines within forensic science may differ from each other, and the role and ethical considerations of police officers and lawyers may be “different from the scientist, [but] the moral responsibilities of the individual do not differ ….”12 That concept is important when considering the various codes of ethics. Despite their differences, without exception the codes rely upon the individual’s own sense of morality. In fact, the very foundation of professional organizations’ codes of ethics relies on personal morality.13 The concept of a morality-based code is recognized by some organizations, in that there is a differentiation between codes of ethics and codes of conduct or rules of professional responsibility. Recognizing that codes of ethics rely on personal morality, such as not to lie, cheat or steal, and contain broad moral concepts, some organizations have only a code of conduct or code of professional responsibility, which is specifically designed for the specialty represented by the organization and for its members’ professional development. Other societies and organizations have both a code of ethics and a code of professional responsibility. Although calling their document a code of ethics, other organizations describe the code as being more aspirational than concrete moral rules. For example, the Forensic Toxicologist Certification Board’s Code of Ethics is captioned “Aims and Ideals.”14 The National Association of Medical Examiners, however, combines both concepts in its “Code of Ethics and Conduct.”15 The latter title suggests that ethics and conduct are, in fact, inseparable. The misnomer in calling the document a code of ethics is readily apparent in the provisions which make it unethical to fail to abide by the organization’s by-laws or constitution. The Association of Forensic DNA Analysts and Administrators, for example, makes it unethical not to “[c]omply with the by-laws of the Association.”16 MAAFS, on the other hand, makes it unethical to make unauthorized public statements representing the organization.17 The ASCLD Code of Ethics has a similar provision.18 If morality is really the bedrock of ethics, it is hard to see how an organization can legislate non-compliance with by-laws, or the making of unauthorized statements, as unethical conduct. In other organizations, the same provisions can be found in the governing documents, but those organizations are careful to name their documents as
Codes of Ethics in Forensic Science Societies
codes of ethics and conduct.19 A code of conduct, vis-à-vis a code of ethics, more appropriately prohibits those types of conduct, along with personal conduct considered adverse to the best interests and purposes of the association.19 Many of the codes are stand-alone documents of the organization, and others are incorporated into the governing documents of the organization, usually the by-laws (see Table 4.1). The incorporation model has the benefit of requiring the membership to vote for a change in the code as an amendment to their by-laws; the disadvantage is the code is often more difficult to update. For example, the Code of Ethics for the Northwest Association of Forensic Scientists is not a part of its by-laws and requires only a simple majority vote of the membership at any business meeting to amend it, whereas an amendment to its by-laws requires a three-quarters affirmative vote of the members attending the Association Business Meeting.20 Table 4.1 Organizations with a Code of Ethics and/or a Code of Professional Responsibility Organization Code of Code of Conduct/ Both Incorporated Ethics Professional into Governing Responsibility Documents
Academia Iberoamericana de Criminalistica y Estudios Forenses (Iberoamerican Academy of Criminalistics and Forensic Studies) (AICEF) American Academy of Forensic Sciences (AAFS) American Academy of Psychiatry and the Law American Board of Criminalistics (ABC) American Board of Forensic Document Examiners (ABFDE) American Board of Forensic Toxicology (ABFT) American Society of Crime Laboratory Directors (ASCLD) American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) American Society of Questioned Documents (ASQDE) Asian Forensic Sciences Network Code of Conduct (AFSN) Association of Firearm and Toolmark Examiners (AFTE)
X
X
X
X
X X X21 X X X X
X X
X (Continued)
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Table 4.1 (Continued) Organization
Association of Forensic DNA Analysts and Administrators (AFDAA) Australian and New Zealand Forensic Science Society (ANZFSS) California Association of Criminalists (CAC) Canadian Society of Forensic Science (CSFS) European Network of Forensic Science Institutes (ENFSI) Forensic Science Society, UK Forensic Toxicologist Certification Board, Inc. International Association for Identification (IAI) Mid-Atlantic Association of Forensic Scientists (MAAFS) Midwestern Association of Forensic Scientists (MAFS) National Association of Medical Examiners (NAME) Northeastern Association of Forensic Scientists (NEAFS) Northwest Association of Forensic Scientists (NWAFS) Society of Forensic Toxicologists (SOFT) Southwestern Association of Forensic Scientists (SWAFS)
Code of Ethics
Code of Conduct/ Professional Responsibility
Both
Incorporated into Governing Documents
X X X X X X
X X
X X X
X
X X X X
X
Regardless of whether the code is a part of the founding documents or a stand-alone document, a successful implementation of a code of ethics depends in great part on the membership’s awareness and commitment to it. Some codes idealistically proclaim their members’ commitment. For example, the Forensic Toxicologist Certification Board states that each member “shall pledge himself to conform to the code of ethics …”.22 SWAFS goes further and requires that “every member will receive a copy of the Code …” and imposes on the member the responsibility to “read the Code and be aware of its implications.”23 The only organizations that appear to require annual reaffirmation of the code by its members are the AAFS and NAME. Every year as part of the annual renewal of membership, AAFS and NAME members must acknowledge their acceptance of the provisions of the Code.24 NAME requires members to read, understand and endorse the Code of Ethics and Conduct.25
Codes of Ethics in Forensic Science Societies
Two codes require the commitment to other codes of ethics and conduct. The NAME and the American Academy of Psychiatry and the Law require conformance with the guidelines and ethical principles of the American Medical Association and the American Psychiatric Association, respectively.26 The ISP Rules of Conduct/Code of Ethics requires all “Forensic Science Command employees” also be familiar with the state personnel rules, the State Police Directives Manual and the Facility Operational Manuals.27
2. THE DEVELOPMENT OF AN ASSOCIATION’S CODE OF ETHICS AND CONDUCT The American Academy of Forensic Sciences (AAFS or Academy) was founded in 1948 as an interdisciplinary organization representing the various disciplines within the forensic science community. Dr. R.B.H. Gradwohl noted, as the idea of an academy was being formulated, that: [t]here is no fixed border for any forensic science, each has more than necessity to rely on the others. It would thus seem fitting that a central organization be of extreme value in collating and disseminating the fundamentals of all forensic sciences.28
It is no surprise that the founding members of the Academy recognized that personal, moral values are essential to the ethical conduct of forensic scientists. On January 21, 1948, the Committee on a Permanent Organization issued its final report. At the outset, the report declared: There can be no Justice without Truth, whether that Truth be attested by lay or expert witnesses. That Truth of which we speak is something more than the mere willingness of witnesses to relate what they saw, heard or know. Individual fidelity to this moral standard which we term honesty is only one aspect of Truth and is not always sufficient to serve the ends of ultimate Justice between two litigants or members of society…. [I]t is commonly known that all knowledge is either consciously or unconsciously encumbered not only with the imperfections of the observer, but mostly by preconceived notions, prejudices and inadequate mechanisms for differentiating between appearances and reality…. Science, as an empirical method of discovering eternal truths in nature, is the one important handmaiden by which Truth and then Justice may be unfolded. And in so far as science has advanced to unroll a cloud of ignorance from the minds of men, to that extent have the legal controversies of men been more equitably adjusted.29
At the 1950 organizational meeting of the Academy in Chicago, the AAFS Constitution and by-laws were adopted. Chapter 1, Section 3 provided for adverse action against “[a] member who violates any of the provisions of this Constitution and by-laws…”.30 The provisions of those documents pertained primarily to membership, administration and organizational structure and did not specify any ethical standards against which action should be taken, save for “a member who has been found guilty of a felony or is guilty of gross misconduct even though no criminal charge has been made…”.30 Sanctions that could be imposed if the “charges” were sustained included censure, suspension or expulsion.30
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An interesting provision in the by-laws, particularly in light of today’s litigious society, stated that “[k]indly efforts in the interest of peace, conciliation or reformation, so far as possible and expedient, shall proceed the filing of formal charges affecting the character or standing of a member…”.31 Good advice for everyone. The same founding documents provided for an Ethics Committee consisting of the three immediate past-presidents of the Academy.32 Such a committee was formed in 1950. The committee’s task, however, was not to create a code of ethics, but to handle situations where “incidents of conduct deemed ‘detrimental to the best interests of any professional society’” were reported.33 AAFS records do not reveal any such activity by the Ethics Committee during the 1950s.33 Not until 1960 was a committee formed to create a code of ethics. That committee proposed a comprehensive set of “rules” of ethics.34 Part of the preamble for the proposed Rules of Ethics read as follows: The purity and efficiency of judicial administration depends as much upon the character, conduct and demeanor of lawyers, physicians and forensic scientists in this great trust as upon the fidelity and ability of the courts or the honesty and intelligence of jurors.35
What followed were 15 non-exclusive, general rules for the guidance of its members. These rules included: candor and fairness; how far an expert can go in supporting a client’s case; conflict of opinion among colleagues; participation in fraud and trickery; duty on discovery of fraud or imposition; conflicting interests; confidences of a client; right to withdraw; punctuality; attitude toward jury; expenses; acquiring interest in litigation; fixing the amount of the fee; contingent fees; and membership in the academy.36 The Rules of Ethics were never presented to the Academy membership for adoption. The AAFS Executive Committee met in the spring of 1963 and tabled the Rules. The stated reason was because “it was felt that the [Academy’s] Constitution was sufficient, and that it was not feasible to legislate morality and integrity.”37 An ad hoc Committee on Code of Ethics was formed in the mid-1970s. The Committee members recognized that the multi-disciplinary nature of the Academy created a challenge. Each of the disciplines in the Academy had different, discipline-specific considerations. Thus, it was decided that the code of ethics had to be generic and applicable to all members. Four criteria drove their drafting of the proposed code: it must be desirable; it must be feasible; it must be enforceable; and it must be enforced.38 This time, the Executive Committee, meeting in the summer of 1976, voted to present the code to the general membership, and in 1977 it was adopted at the annual meeting of the Academy.39 The new code was developed to “promote the highest quality of professional and personal conduct of its members.”40 The two provisions of the code provided: Every member of the American Academy of Forensic Sciences shall avoid any material misrepresentation of training, experience, or area of expertise.
Codes of Ethics in Forensic Science Societies
Every member of the American Academy of Forensic Sciences shall avoid any material misrepresentation of data upon which an expert opinion or conclusion is based.40
Those two provisions of the code were considered mandatory for all members. Although the adopted code was far less specific than the Rules proposed in 1963, the full amendment to the Academy by-laws also included three voluntary “guiding principles” that were deemed “essential to the attainment of the highest quality of professionalism”.40 They were: (a) The forensic scientist should maintain his professional competency through existing programs of continuing education. (b) The forensic scientist should render technically correct statements in all written or oral reports, testimony, public addresses, or publications, and should avoid any misleading or inaccurate claims. (c) The forensic scientist should act in an impartial manner and do nothing which would imply partisanship or any interest in a case except the proof of the facts and their correct interpretation.40 Although: [a]ny member whose professional or personal conduct becomes adverse to the best interests and purposes of the academy shall be liable to censure, suspension or expulsion
the permissive investigative action by the Ethics Committee was directed to alleged violations relating to misrepresentation of criteria for membership, unauthorized public statements, and violations of the Code of Ethics.41 Interestingly, the Guiding Principles, which were only voluntary, was not captured within the investigative authority of the Ethics Committee.42 The exclusion of the guiding principles from enforcement action was intentional, and the next revision of the Code of Ethics eliminated those principles, separating that iteration of the code even further from the specific nature of the 1963 proposal. The 1986 revision of the code, however, specifically incorporated three new provisions that were tangentially referenced through the liability and investigative portions of the previous code’s enforcement section. The three new provisions were: 1. Every member of the American Academy of Forensic Science shall refrain from exercising professional or personal conduct adverse to the best interest and purposes of the Academy. 2. Misrepresentation of one or more criteria for membership in the AAFS shall constitute a violation of this section of the code. 3. Every member of the AAFS shall refrain from issuing public statements which appear to represent the position of the Academy without specific authority first obtained from the Board of Directors. In 1989, AAFS published in the Journal of Forensic Sciences a special symposium on ethics in the forensic sciences, supported by the Ethics and Values Directorate of the National Science Foundation.43 The five papers constituting the symposium set an
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important benchmark in the development of ethical considerations, and were instructive to the entire forensic science community. The introductory paragraph of the symposium is instructive for its view of the relative breadth of ethical standards. Forensic scientists are expected to be honest with respect to their qualifications, examinations, and conclusions; they should be technically competent and only use methods of proven reliability; they should remain totally objective and nonpartisan with respect to their review of evidence and delivery of expert testimony; and they are expected to present understandable and balanced reports/testimony to legal decision makers.44
In the late 1990s, the Academy established an ad hoc Good Forensic Practices Committee to prepare an aspirational set of guidelines to supplement the minimal, baseline provisions of the AAFS Code of Ethics. Violations of the Good Forensic Practices Guidelines would not, however, be enforceable unless a violation was also a breach of the Code of Ethics.45 These guidelines were presented to the Academy’s Executive Committee in 1999,46 but were never adopted by the Academy, and the committee was disbanded. As of this writing, the last revision of the AAFS Code of Ethics occurred in 2008, and it remains general in nature with little guidance on the particular ethical and moral obligations of forensic scientists or their professional conduct. Two substantive changes, however, were made in the last revision. First, “conduct adverse to the … purposes of the Academy” was changed to “conduct adverse to the … objectives of the Academy,” as they are particularly articulated in the Preamble to the by-laws. Those objectives were incorporated into the Code. Second, the prohibition on misrepresenting data was expanded to misrepresenting “scientific principles” as well.47 One contributor to the 1989 ethics symposium used the AAFS Code of Ethics as an example that “many professional codes of ethics do little more than remind us of our parent’s admonitions” not to lie, cheat, steal or kill.12 Another commentator has suggested that “[t]he main drawback to the brevity and lack of specificity of the code of ethics of the AAFS is that it has little value as a guide to proper action in a particular circumstance.”45 Despite its brevity and lack of specificity, however, the AAFS Code of Ethics and Conduct could be enforced by the Academy, unlike some societies which had no enforcement provisions. The Academy was one of the few organizations that could, and did, engage in enforcement actions resulting in sanctions against its members. Not all codes are as general as the AAFS code. An example of a more detailed code of ethics is that belonging to the California Association of Criminalists (CAC). Peter Barnett, a frequent author in that area of forensic science ethics, recited the history of the CAC code of ethics: The development of the CAC Code … was an effort by a group of early criminalists in California to help define a profession for the first time. The California criminalists who founded the CAC and
Codes of Ethics in Forensic Science Societies
adopted its code of ethics were really inventing something that had never before existed: a code of ethics that tried to bridge the gap between one profession with a strong ethical tradition – the law – and another nascent profession that was trying to develop professional recognition and a means of self-governance.48
The CAC code of ethics, first adopted in 1957, is detailed and multi-situational. But as Barnett points out, a detailed code is more difficult to revise, because the opponents to revision will argue either that the proposal is already covered in an existing provision, or would conflict with other provisions already in force. In addition, such a detailed code might be difficult to apply to unusual circumstances.49 Table 4.2 illustrates the nature of several codes of ethics of forensic science organizations. The categorization of a particular code is somewhat subjective, divided into three categories – 1–10 provisions, 11–20 provisions, and 21 or more provisions – but there is a significant difference between the general code and the detailed code. The CAC Code of Ethics has 41 provisions, for example, compared to the four provisions of the AAFS or the Association of Forensic DNA Analysts and Administrators. In the latter organization, the provisions are broad concepts: 1. Comply with the by-laws of the Association. 2. Treat all information from any agency, client, or fellow member with the confidentiality required. 3. Carry out the duties of the profession with integrity, attention to accuracy, and in an unbiased manner. 4. Will not misrepresent qualifications, evidence, opinions, conclusions, or testimony. Even broader concepts are reflected in the ABFT Code of Ethics, which exhorts its members to conduct themselves and to perform activities “with honesty and integrity”.50 The Code of Conduct of the Forensic Science Society of the United Kingdom provides less clarity, by mandating that members conduct themselves “honorably in the practice of their profession”.51 The breadth of those moral imperatives, however, are minimal compared to the last provision of the ABFT Code of Ethics. That provision instructs ABFT members to: [a]ct in accordance with the long-standing precepts for ethical practice of the profession…50 (Emphasis added).
What those precepts are and where they can be found is not disclosed. Presumably, these must have evolved from tradition and practice as a common law form of ethical behavior. Compare those general provisions to the specificity provided in Section III. K. of the CAC Code of Ethics54: K. Where the expert must prepare photographs or offer oral “background information” to the jury in respect to a specific type of analytic method, this information shall be reliable and valid, typifying the usual or normal basis for the method. The instructional material shall be of a level that
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Table 4.2 Specificity Comparison of Codes of Ethics Organization
Academia Iberoamericana de Criminalistica y Estudios Forenses (Iberoamerican Academy of Criminalistics and Forensic Studies) (AICEF) American Academy of Forensic Sciences (AAFS) American Academy of Psychiatry and the Law American Board of Criminalistics (ABC) American Board of Forensic Document Examiners (ABFDE) American Board of Forensic Toxicology (ABFT) American Society of Crime Laboratory Directors (ASCLD) American Society of Crime Laboratory Directors/ Laboratory Accreditation Board (ASCLD/LAB) American Society of Questioned Documents (ASQDE) Asian Forensic Sciences Network Code of Conduct (AFSN) Association of Firearm and Toolmark Examiners (AFTE) Association of Forensic DNA Analysts and Administrators (AFDAA) Australian and New Zealand Forensic Science Society (ANZFSS) California Association of Criminalists (CAC) Canadian Society of Forensic Science (CSFS) European Network of Forensic Science Institutes (ENFSI) Forensic Science Society, UK Forensic Toxicologist Certification Board, Inc. International Association for Identification (IAI) Mid-Atlantic Association of Forensic Scientists (MAAFS) Midwestern Association of Forensic Scientists (MAFS) National Association of Medical Examiners (NAME) Northeastern Association of Forensic Scientists (NEAFS) Northwest Association of Forensic Scientists (NWAFS) Society of Forensic Toxicologists (SOFT) Southwestern Association of Forensic Scientists (SWAFS)
General Code 1–10
Intermediate Code 11–20
Detailed Code 21
X X X X
X
X X X X X X X X X X X X
X
X
X X
X X X X X
Codes of Ethics in Forensic Science Societies
will provide the jury with a proper basis for evaluating the subsequent evidence presentations, and not such as would provide them with a lower standard than the science demands.
The majority of the codes fall into the intermediate category that goes beyond broad principles but stays within the general categories most often encountered by forensic scientists. The CAC Code was adopted for criminalists, and the AAFS Code for a multidisciplinary society. Other codes target a particular class of forensic scientists, such as the ASCLD/LAB Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists. Those guidelines pertain to laboratory management and “all laboratory personnel, including technical support personnel and others who assist forensic scientists in their work”.52 The Illinois State Police Forensic Sciences Command Rules of Conduct/Code of Ethics applies to the directors, administrators, forensic scientists, toxicologists and support personnel in the command.53 The Association of Forensic DNA Analysts and Administrators apply to those who are performing forensic aspects of DNA analysis, but also to their supervisors and laboratory administrators. Unlike the AAFS Code, some more detailed codes of ethics are divided into broad categories of ethical considerations. The 41 provisions of the Code of Ethics of the California Association of Criminalists, for example, are divided among five major categories.54 Table 4.3 illustrates codes of ethics that are similarly divided.
3. A COMPARISON OF THE CODE PROVISIONS OF FORENSIC SCIENCE SOCIETIES An analysis of the codes of ethics and conduct reflect a high degree of similarity among both domestic and foreign associations. Not only are provisions topically similar, but they are also similar in wording, suggesting that there was a sharing of documents among societies.55 The CAC code appears to be the first complex code developed by an organization for its members, and other codes bear a strong resemblance to it.56 The commonality among conduct covered by code provisions is also high. For example, most codes articulate that the forensic scientist should be unbiased and impartial, and should use accepted methods in their testing. Interestingly, the sharing of documents does not appear to have occurred between American-based and overseas organizations. Professor Saks in his article “Prevalence and impact of ethical problems in forensic science”,57 included a table cataloging the provisions of nine codes of ethics and conduct. That catalog appears below as Table 4.4. The conduct described in his table mirrors almost in its entirety the CAC Code. Annexed to his table are “Additional Provisions” which were developed by this author to expand the provisions cataloged in Professor Saks’s article. Tables 4.5 and 4.6 utilize the same listing of code provisions, including the new annex of additional provisions, but reflect organizations’ codes not included in the original work by Professor Saks.
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Table 4.3 Codes with Subdivided Categories of Ethical/Professional Considerations Organization AICEF
Behavior
AAPL
Confidentiality Consent
ASCLD/LAB
Professionalism Competency and proficiency Scientific Opinions and method conclusions
AFTE ANZFSS CAC CFSF ENSFI Illinois State Police MAAFS MAFS NEAFS
NWAFS SOFT SWAFS
Scientific method Scientific method Responsibility to the organization Behavior Examination of evidence Relating specifically to MAAFS Examination and analysis Matters relating to NEAFS
Competency
Casework
Reporting
Honesty and striving for objectivity Clear communications Court presentations
Qualifications
Professional competence
General practice of firearms and toolmarks Conduct in court
General matters
Reporting
Pre-trial conduct
Opinions and conclusions Responsibility to client, employer or the court Competence
Court presentations Responsibility to the profession of forensic science Casework
General practice of Criminalistics
Responsibilities to the profession
Reporting
Report findings General conduct of members
Courtroom testimony Examination and analysis
Personal development Opinions and conclusions
Professional competence Improper actions Management of others responsibility Testimony General matters
Testimony
General matters
Improvement of the profession
Court presentation
General practice of forensics
Responsibilities to the profession
Relating to opinions and conclusions
Relating to testimony/ courtroom presentation
Opinions and conclusions Professional work performance and courtroom testimony Scientific Opinions and method conclusions Professionalism Competency and proficiency General Relating to the criminalistic profession matters
Clear communications Relating to examination and analyses
Confidentiality Personal of information conduct Improvement of the profession
Table 4.4 A Comparison of Code Provisions by Professor Saksa Provisions CAC
RELATING TO SCIENTIFIC METHOD Should be unbiased, minimum anticipation of what results should be, maintain rigid impartiality Should not bolster conclusions by using unwarranted and superfluous tests Should not use “secret” methods or processes, not open to scrutiny Should insist upon representative and reliable materials on which to perform examination Should not use unreliable, unproven, or discredited procedures Should keep abreast of new developments Should keep skills sharp, participate in proficiency testing
MAFS
SWAFS
NEAFS
IAI
X
X
X
X
X
X
X
X
X
X
X
X
AFTE
ISP
X
X
X
X X
X
X
X
X
X
X X
X X X
X X
X
X
RELATING TO EXAMINATIONS AND CONCLUSIONS Should use proven and accepted methods X Should do sufficiently thorough examination X Should not knowingly distort tests or interpretations of them Should refuse to be swayed by evidence or matters X outside the specific materials under consideration Should not confuse scientific fact with investigative X theory Should not go beyond own competence X X Where results are capable of alternative interpretations, should not select the one favoring the side by which he or she is employed RELATING TO ADVERSARY PRESENTATION Should be available for pre-trial interviews with both prosecution and defense attorneys
IAI:CA
X
X
X X
X
X
X X
X
X
X
X
X
X
X X
X
X (Continued)
Table 4.4 (Continued) Provisions
CAC
Should disclose exculpatory findings to the court if it X appears prosecution is not going to make disclosure to defense Should not misrepresent qualifications Should not give opinions on matters not subjected to X formal examination Should not leave false impressions in the minds of fact X finders Should not present testimony in a way that wins it more X weight than it is due Should not limit testimony to evidence that supports the X view of the side employing the forensic scientist; should see to it that the court understands the evidence as it is Should not assist the contestants in a case in implanting X false impressions Should not confuse or conceal concepts from fact finders X Displays should not be designed to mislead fact finder X RELATING TO GENERAL PRACTICE Should be willing to re-examine evidence submitted by X another forensic scientist; however, should try to resolve discrepancy before case goes to trial; goal should not be to thwart justice Members convicted of felonies or certain other crimes can be expelled RELATING TO PROFESSION Should make new discoveries and developments widely known Should cooperate in improvement through research Should direct attention to methods which appear invalid or unreliable Should refrain from seeking personal publicity Should not take undue credit Should bring to the attention of the association forensic scientist who has committed (serious or frequent) infractions
MAFS
SWAFS
NEAFS
IAI
IAI:CA
AFTE
ISP
X X X X
X
X X
X
X
X
X
X X
X X
X X
X X
X X
X
X
X
X
X
X
X X X
X X
X
X
X
X
X
X
X
X
X
ADDITIONAL PROVISIONS Treat evidence with care to maintain integrity Seek verification of findings X Complete work notes on all items/keep for appropriate time Honestly, fairly, and objectively administer and complete proficiency tests, technical reviews, and verifications Confidentiality Full and complete disclosure to submitting agency Maintain attitude of independence and impartiality to inspire confidence by public; take care not to violate public trust; duty is to justice Report conflicts between ethics and laboratory policy Attempt to qualify answers when asked “yes” or “no” question Do not accept gifts or inducements to influence performance; avoid conflicts of interest Contingency fees X Do not use position to impose undue influence on examiner Do not discriminate on basis of race, gender, creed, language, orientation, social status, age, lifestyle, or politics Should review and correct findings in light of new information or developments in field Accept responsibility for work done and that done under his/her supervision Distinguish between opinions and results of tests and examinations Association will give full support to examiner who abides X by code a
X X
X
X
X
X
X X58 X
X
X X
X
Reprinted with permission, from the Journal of Forensic Sciences,Vol. 34, No. 3, copyright ASTM International, 100 Barr Harbor Drive, West Conshohocken, PA 19428.
Table 4.5 A Comparison of Code Provisions from Additional Organizations Provisions NAME AFDAA ABC
RELATING TO SCIENTIFIC METHOD Should be unbiased, minimum anticipation of what results should be, maintain rigid impartiality Should not bolster conclusions by using unwarranted and superfluous tests Should not use “secret” methods or processes, not open to scrutiny Should insist upon representative and reliable materials on which to perform examination Should not use unreliable, unproven, or discredited procedures Should keep abreast of new developments Should keep skills sharp, participate in proficiency testing
X
RELATING TO EXAMINATIONS AND CONCLUSIONS Should use proven and accepted methods Should do sufficiently thorough X examination Should not knowingly distort tests or X X interpretations of them Should refuse to be swayed by evidence or matters outside the specific materials under consideration Should not confuse scientific fact with investigative theory
X
ASCLD/LAB ASQDE
ABFDE
FTCB
MAAFS
X
X
X
X
X
ABFT
X
X
X
X
X
X
X
X
X
X
X X
X X
X
X
X X X
X
X X
X X X
X
X
X
X
X
X
X
Should not go beyond own competence Where results are capable of alternative interpretations, should not select the one favoring the side by which he or she is employed
X
RELATING TO ADVERSARY PRESENTATION Should be available for pre-trial interviews with both prosecution and defense attorneys Should disclose exculpatory findings to the court if it appears prosecution is not going to make disclosure to defense Should not misrepresent qualifications X Should not give opinions on matters not subjected to formal examination Should not leave false impressions in the minds of fact finders Should not present testimony in a way that wins it more weight than it is due Should not limit testimony to evidence that supports the view of the side employing the forensic scientist; should see to it that the court understands the evidence as it is Should not assist the contestants in a case in implanting false impressions Should not confuse or conceal concepts from fact finders Displays should not be designed to mislead fact finder
X
X X
X
X
X
X
X
X
X X
X
X
X
X
X
X
X
X
X
X
X
X
X X
X
X X
X X (Continued)
Table 4.5 (Continued) Provisions
RELATING TO GENERAL PRACTICE Should be willing to re-examine evidence submitted by another forensic scientist; however, should try to resolve discrepancy before case goes to trial; goal should not be to thwart justice Members convicted of felonies or certain other crimes can be expelled RELATING TO PROFESSION Should make new discoveries and developments widely known Should cooperate in improvement through research Should direct attention to methods which appear invalid or unreliable Should refrain from seeking personal publicity Should not take undue credit Should bring to the attention of the association forensic scientist who has committed (serious or frequent) infractions ADDITIONAL PROVISIONS Treat evidence with care to maintain integrity Seek verification of findings Complete work notes on all items/keep for appropriate time
NAME
AFDAA
ABC
ASCLD/LAB ASQDE
ABFDE
FTCB
MAAFS
ABFT
X
X
X
X X X
X
X
X
X
X
X
X
Honestly, fairly, and objectively administer and complete proficiency tests, technical reviews, and verifications Confidentiality Full and complete disclosure to submitting agency Maintain attitude of independence and impartiality to inspire confidence by public; take care not to violate public trust; duty is to justice Report conflicts between ethics and laboratory policy Attempt to qualify answers when asked “yes” or “no” question Do not accept gifts or inducements to influence performances; avoid conflicts of interest Contingency fees Do not use position to impose undue influence on examiner Do not discriminate on basis of race, gender, creed, language, orientation, social status, age, lifestyle, or politics Should review and correct findings in light of new information or developments in field Accept responsibility for work done and that done under his/her supervision Distinguish between opinions and results of tests and examinations Association will give full support to examiner who abides by code
X X
X X
X
X
X
X
X
X X
X X
X X
X59 X
X
X
Table 4.6 A Comparison of Code Provisions from Additional Organizations Provisions AAFS AAPL ASCLD NWAFS SOFT
RELATING TO SCIENTIFIC METHOD Should be unbiased, X minimum anticipation of what results should be, maintain rigid impartiality Should not bolster conclusions by using unwarranted and superfluous tests Should not use “secret” methods or processes, not open to scrutiny Should insist upon X representative and reliable materials on which to perform examination Should not use unreliable, unproven, or discredited procedures Should keep abreast of new developments Should keep skills sharp, participate in proficiency testing
X
X
AICEF
AFSN
ANZFSS
CFSF
ENSFI
FSSoc, UK
X
X
X
X
X
X
X X
X
X
X
X
X
X
X
RELATING TO EXAMINATIONS AND CONCLUSIONS Should use proven and X accepted methods Should do sufficiently thorough examination Should not knowingly X X X X distort tests or interpretations of them
X
X
X
X
X
X X
X X X
X
X
X
X X
X
Should refuse to be swayed by evidence or matters outside the specific materials under consideration Should not confuse scientific fact with investigative theory Should not go beyond own competence Where results are capable of alternative interpretations, should not select the one favoring the side by which he or she is employed RELATING TO ADVERSARY PRESENTATION Should be available for pretrial interviews with both prosecution and defense attorneys Should disclose exculpatory findings to the court if it appears prosecution is not going to make disclosure to defense Should not misrepresent X X X qualifications Should not give opinions on matters not subjected to formal examination Should not leave false impressions in the minds of fact finders
X
X
X
X
X
XX
X
X
X
X
X
X
X
X
X
X
X
X
X X
X
X
X
X
X
X
X
X
X
X
(Continued)
Table 4.6 (Continued) Provisions
Should not present testimony in a way that wins it more weight than it is due Should not limit testimony to evidence that supports the view of the side employing the forensic scientist; should see to it that the court understands the evidence as it is Should not assist the contestants in a case in implanting false impressions Should not confuse or conceal concepts from fact finders Displays should not be designed to mislead fact finder
AAFS
AAPL
ASCLD
NWAFS
SOFT
AICEF
X
X
X
X
X
X
X
X
RELATING TO GENERAL PRACTICE Should be willing to re-examine evidence submitted by another forensic scientist; however, should try to resolve discrepancy before case goes to trial; goal should not be to thwart justice
X X
X
AFSN
ANZFSS
X X
CFSF
ENSFI
X
FSSoc, UK
Members convicted of felonies or certain other crimes can be expelled RELATING TO PROFESSION Should make new discoveries and developments widely known Should cooperate in improvement through research Should direct attention to methods which appear invalid or unreliable Should refrain from seeking personal publicity Should not take undue credit Should bring to the attention of the association forensic scientist who has committed (serious or frequent) infractions ADDITIONAL PROVISIONS Treat evidence with care to maintain integrity Seek verification of findings Complete work notes on all items/keep notes for appropriate time
X
X
X X
X
X X
X
X
X X X
X
X
X
X X
X X X
X
X
(Continued)
Table 4.6 (Continued) Provisions
Honestly, fairly, and objectively administer and complete proficiency tests, technical reviews, and verifications Confidentiality Full and complete disclosure to submitting agency Maintain attitude of independence and impartiality to inspire confidence by public; take care not to violate public trust; duty is to justice Report conflicts between ethics and laboratory policy Attempt to qualify answers when asked “yes” or “no” question Do not accept gifts or inducements to influence performance of tests/ avoid conflicts of interest
AAFS
AAPL
X
ASCLD
NWAFS
SOFT
X
X
AICEF
AFSN
ANZFSS
CFSF
ENSFI
X
X
X
X X
X
X
X
X
X
X
X
FSSoc, UK
Contingency fees Do not use position to impose undue influence on examiner Do not discriminate on basis of race, gender, creed, language, orientation, social status, age, lifestyle, or politics Should review and correct findings in light of new information or developments in field Accept responsibility for work done and that done under his/her supervision Distinguish between opinions and results of tests and examinations Association will give full support to examiner who abides by code
X
X X
X X
X X
X
X
X
X
X
X
X
X
X X
X
X
X X X
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Kenneth E. Melson
As noted, the provisions of many codes are topically similar and unremarkable, prohibiting the most obvious indiscretions. There are provisions, however, that deserve some discussion.
3.1 Evidence and its Examination The integrity of the evidence examined by an expert is important not only for chain of custody purposes, i.e., establishing that the item examined is the same item seized by police, but for the relevance of the scientific examination, i.e., is the evidence in the same condition at the time of examination as it was when seized by the police? The crime scene’s initial and subsequent environmental impact on the evidence, over and above the chain of custody concept, is also important to the examiner and the methodology of the examination. Therefore, several codes require that examiners determine, to the extent they can, whether the evidence submitted to them for examination has been compromised before submission so as to affect their test results or conclusions.60 After receiving the evidence in the laboratory, there is a further obligation to maintain the evidence properly.61 Various codes repeat the latter requirement. The ASCLD/LAB and SOFT Guidelines describe specifically the type of loss of integrity to be avoided, including the prevention of tampering, adulteration, loss or unnecessary consumption.62 Generally accepted techniques, tests and procedures are the foundation for examination of evidence by forensic scientists. Several codes make that clear, by mandating the use of those methods that are generally accepted.63 SWAFS makes it clear that new techniques may not be used until thoroughly validated.64 Other organizations give more latitude for creativity and initiative. Both MAAFS and NEAFS make it desirable to use generally accepted techniques, but allow for “individual initiative when circumstances warrant”.65 MAFS, on the other hand, allows for the use of new or experimental techniques to add additional information, but not for the primary basis for the conclusion, until “proven scientifically sound”.66 Professor Saks in his 1989 ethics symposium article worked from an assumption that a code of ethics reflects the problems a profession is having, and by incorporating those issues into its code attempts to change the conduct of its members.67 The ASCLD/LAB Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists was initially adopted on December 6, 2008, and is one of the newest codes of professional responsibility to date among forensic science societies and organizations.68 A provision specifically added to the Guiding Principles pertains to the use of appropriate controls and standards when conducting examinations and analyses.69 This was not necessarily a new provision in the forensic science community, but inserted to respond to issues in laboratories relating to the use of out-dated controls, “dry-labbing” and other similar misconduct and negligence. The
Codes of Ethics in Forensic Science Societies
IAI, MAAFS, ABC, and the Australian and New Zealand Forensic Science Society, for example, have similar provisions in their codes. Although the CAC code does not have a specific provision relating to the use of appropriate controls, standards or reagents, it does suggest that no “unreliable procedure be utilized in the analysis”.70 When conducting tests, examination notes are important. ASCLD/LAB and the SOFT Guiding Principles require that “full, contemporaneous, clear and accurate records of all examinations and tests conducted, and conclusions drawn”.71 One of the important purposes of this procedure is to allow a review and assessment of what was done by an independent expert who is competent in the field.72
3.2 Proficiency and Competency Imperative for reliable and accurate testing is the competency of the examiner. It has been stated many times, although incorrectly, that it is not unethical to be incompetent. To the contrary, competence is an overarching concept that is supported by individual provisions in the codes of ethics and professional conduct. “The members’ education and/or training must be sufficient to be able to perform these duties proficiently,” is a precept enunciated near the beginning of the MAAFS Code of Ethics.73 (Emphasis added.) The Forensic Toxicologist Certification Board mandates that each member “… keep informed of new developments and processes in toxicological examination by study and research, with a full realization that accuracy is possible only through competence”.22 In 1992, a presentation of the ASQDE code of ethics at their 50th anniversary conference had a similar provision.74 It appears that the current version of the ASQDE code of ethics has eliminated the statement that accuracy is only possible through competence.75 A requirement to remain competent is also found in the IAI Code of Ethics where it requires that members: … shall maintain and strive to improve his or her knowledge, skills, and abilities and shall continue to use all available resources to be knowledgeable of advances in his or her respective discipline(s).76
ASCLD/LAB and SOFT expressly entitle one section of its Guiding Principles “Competency and Proficiency” and go on to state that ethical and professionally responsible forensic scientists and laboratory managers “[a]re properly trained and determined to be competent through testing prior to undertaking the examination of the evidence”.77 An anomaly appears, however, in the MAAFS and MAFS codes of ethics that appear to allow someone to conduct an examination or analysis that is “… beyond the scope of an individual’s experience….” as long as “… someone who has adequate knowledge in the area reviews the work”.78 One must query why someone who is not competent or proficient in an examination or analysis because it is beyond the
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Kenneth E. Melson
individual’s experience would conduct such an examination/analysis in the first place. If such an examination or analysis is conducted, will that person testify to the procedure and results in court? Both codes go on to state that “[s]ound scientific procedures require that an individual neither form conclusions nor render opinions which are beyond his area of expertise”.79 An interesting variation on this theme is reflected in the AFSN Code of Conduct, which suggests that testimony should stay within the limits of expertise “or level of competence”,80 recognizing the fact that even within an area of expertise there are many levels of competence and the opinion may be restricted by the nature of the training and experience of the individual expert. Under the heading of Competency and Proficiency, the ASCLD/LAB Guiding Principles also include a specific provision not found in other codes. Reflecting issues occurring in crime laboratories, a provision was included that directs forensic scientists and laboratory managers to honestly, fairly, and objectively administer and complete regularly scheduled proficiency tests, comprehensive technical reviews, and verifications of conclusions.81
3.3 The Duty to Disclose Technical reviews and verifications raise an issue not directly addressed in any code of ethics or professional responsibility. During a technical review or verification of conclusions, if the reviewer or verifier disagrees with the testing examiner, what process should take place to resolve the difference? Some codes recognize a variation of this situation by making it clear that it is ethical for one examiner to re-examine evidence material previously examined by another, and when there is a difference of opinion: as to the significance of the evidence or to the test results … every effort [should] be made by both examiners to resolve their conflict before the case goes to trial.82
When this issue arises in the context of a verification of conclusions or a technical review, many laboratories have a third examiner mediate the difference to arrive at an “official” result, conclusion or opinion. That process, of course, is the easy part of the answer. The more difficult question is whether and how the result, conclusion or opinion that was not accepted or officially adopted should be disclosed to the opposing party and/or the court. Absent situations where the difference is exculpatory and therefore has to be disclosed, which it could be argued is true in every case, codes of ethics and professional responsibility do not address this issue specifically. Such a “majority rules” mandate assumes that the majority is correct, creating an interesting philosophical point – is it always necessary to reveal any significant differences of opinion, as it is entirely possible that the “minority report” may in fact be the more accurate? The closest provision that does address this issue, and similar issues regarding the disclosure of exculpatory evidence, can be found in paragraph 13 of the ABC Rules of Professional Conduct. That provision instructs members of the ABC to:
Codes of Ethics in Forensic Science Societies
[m]ake efforts to inform the court of the nature and implications of pertinent evidence if reasonably assured that this information will not be disclosed to the court.83
Although the differences in the conclusions or opinions of the reviewer or verifier and the examiner may not be legally exculpatory, there may be impeachment value in the difference between the experts to be capitalized upon by the opposing party during cross-examination, and thus arguably should be disclosed. In any case where there is a possibility of an injustice occurring, there should be an affirmative duty to disclose the matter to the court, usually through the prosecuting attorney. The ASCLD/LAB and SOFT Guiding Principles require reporting to appropriate legal authorities of scientifically questionable conduct of laboratory employees.84 Two other organizations also require disclosure to the court. ABC requires its members to: [m]ake efforts to inform the court of the nature and implications of pertinent evidence if reasonably assured that this information will not be disclosed to the court.85
It is unclear whether this obligation extends to the expert only when he or she is in a testimonial mode. A similar provision in the Australian and New Zealand Forensic Science Society suggests that is the case. Its provision, under the heading of “Conduct in Court” dictates that: the witness should appeal to the presiding judicial officer … if they believe that the manner in which evidence is being elicited is such as to prevent the disclosure of a significant relevant matter or circumstance.86
3.4 Reports and Opinions An important role for the expert is report writing. The signature on a report, often accompanied by an attestation, is important to its evidentiary veracity, particularly if the report is admitted into evidence without testimonial foundation. Two codes make it clear that reports should be signed only by the persons who have done the work, or by those who have either directly or indirectly supervised it.87 A corollary is that the supervisor must take full responsibility for all the work done under his or her supervision.88 Forensic scientists should be willing to modify their opinions or conclusions in a particular case if new information comes to light that has a material effect on the examination results. Three codes recognize that relatively non-controversial proposition. They go further, however, and suggest that experts should be prepared to reconsider their opinions based on “new developments in the relevant field”.89 When that happens, the forensic scientist should notify his or her client of the change, according to the same codes. This concept, which only appears in the foreign forensic science network codes of ethics, is germane to current laboratory issues. What is the responsibility of a laboratory to inform prosecutors, defense attorneys, or defendants when
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they find that a generally accepted practice utilized years ago, and sometimes longer, turns out to be faulty, either scientifically or in the strength of the conclusions which may be drawn from it? A closely related topic concerns differences of opinions between opposing experts. Responses to allegations of ethical misconduct are often couched in terms of a simple “difference of opinion”, a convenient escape route for ethics committees reviewing the allegations. The AFTE Procedures for the Enforcement of the Code of Ethics addresses this issue:90 B. In every consideration of a charge of ethical misconduct the distinction must be made between unethical behavior and an honest difference of opinion. 1. It is not unethical to disagree with one’s peers, even if one’s peers are more experienced, provided there is an adequate basis for the opinion. It may be unethical to express an opinion for which one does not have an adequate basis because: a) The individual is not competent to express such an opinion because of a lack of proper education, training or experience, or; b) The individual has not acquired the data necessary to justify the conclusion, or; c) The individual is basing his or her opinion on improper or discredited data.
This policy encourages ethics committees to actually investigate the differences between expert opinions, instead of simply discarding the complaint because experts often disagree. Experts may honestly disagree less in the future when disciplines now described as very subjective become more exposed to standardization and methodological protocols.
3.5 Confidentiality, Extrajudicial Statements and the Talking Head Keeping the information of the agency or client confidential is a frequent requirement imposed upon forensic scientists, either implicitly or explicitly.91 Confidentiality is a concept incorporated within the attorney-client privilege; however, the privilege is a far stronger doctrine. The AFTE Code of Ethics and the CAC Code of Ethics have an interesting twist on the concept. They suggest that while the attorney-client relationship applies (and it is questionable whether it applies to government analysts) it does so “except in a situation where a miscarriage of justice might occur. Justice should be the guiding principle.”92 Miscarriages of justice can occur when an innocent person is convicted of a crime and where a guilty person is acquitted, because of a fraud perpetrated by the defense or because misleading or inaccurate expert testimony is presented by the defense. In the latter case, a consulting expert witness may be bound by the doctrine of attorney-client privilege regardless of whether a miscarriage of justice might occur. Confidentiality does not always apply to every aspect of a case. NAME is the only organization which gives specific guidelines as to what a member may say about a pending case in which he or she is involved and in which he or she has given formal consideration. The NAME Code of Ethics and Conduct directs that a member may
Codes of Ethics in Forensic Science Societies
not make “an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication” except for information without elaboration in five enumerated categories.93 The categories are: 1. Information contained in a public record. 2. That the investigation is in progress. 3. The general scope of the investigation including a description of the offense and, if permitted by law, the identity of the victim. 4. A request for assistance in apprehending a suspect or assistance in other matters and the information necessary thereto. 5. A warning to the public of any dangers. These categories are very similar to the rules provided by courts to control pre-trial publicity and apply to any person who is associated with the prosecution or investigative agency. There have been many instances when dismay and disappointment have been expressed by experts in the forensic science community concerning peers who become commentators on talk shows and news broadcasts about ongoing investigations, or cases in which they are not personally involved. None of the codes of ethics or professional responsibility examined have a provision directly on point with this issue. Although enunciated under the heading of “court presentation”, several codes do say that an ethical expert should not offer “opinions on matters within his or her field of qualification to which he or she has not given formal consideration”.94 Extrapolating from that concept, one might conclude that being a talking head in the media concerning specific matters about which the expert has not given formal consideration, meaning a personal examination of the evidence or an evaluation of it as a representative of a party to the litigation, should be avoided. However, since experts are routinely asked during sworn testimony to answer “hypothetical” questions, discussing general concepts may be fair game.
3.6 The Dilemma of the “Yes” or “No” Question Another situation of consistent concern among forensic scientists is the one they often encounter in the courtroom when an attorney asks a “yes” or “no” question that cannot be answered in that fashion without misleading the fact finder. MAAFS provides guidance in Section 1.6.4. If a question is put to the expert with the requirement that they should give a simple answer (i.e., yes or no), but it requires qualifications to avoid misleading the judge or jury, the expert should so state before answering the question.95
A similar provision is found in Guideline 19 of the ASCLD/LAB Guiding Principles, suggesting that the authors of that recent code were cognizant that the “yes/no” dilemma was still a concern among testifying experts.
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While other codes may have general language requiring clear and concise testimony that does not mislead the judge or jury, the clear advantage for the testifying expert that a specific provision on the “yes/no” issue provides is the ability to use it as support in court for not answering in such summary fashion when it would mislead the fact finder. Although a court may direct the witness to answer the question in such fashion regardless of the ethical considerations (leaving it to counsel to rehabilitate the witness and his or her answer), the expert can clearly define the issue for the court’s consideration with the support of the code or standard of conduct.
3.7 Reporting and Resisting Unethical or Unprofessional Conduct A 1985 revision of the CAC Code of Ethics spoke to the obligation of a member to report an apparent ethical violation to the Association.96 The pertinent section distinguishes two situations; those that are “serious or repeated”, which requires the allegation to be reported, and all others. There is no definition of “serious”, leaving it to the member to determine the apparent severity of the infraction. Reference might be made to the reporting requirements described in conjunction with the Paul Coverdell Forensic Sciences Improvement Grants, where it requires certification by the applicant that an entity exists to investigate allegations of serious negligence or misconduct substantially affecting the integrity of the forensic results committed by employees or contractors of any forensic laboratory system.97 (Emphasis added.)
Four other codes of ethics with provisions regarding the reporting of alleged unethical conduct require all violations of the code to be brought to the association’s attention.98 It is a violation of the SWAFS Code of Professional Conduct to “… willingly tolerate unethical activity on part of another member”.99 MAFS adds that it is “…a breach of ethics to knowingly conceal consistent unethical action”.100 It would seem that even a single unethical act should not be concealed by another. The ASCLD/LAB Guiding Principles require forensic scientists, other laboratory personnel, and managers to make reports to the appropriate legal or administrative authorities [of ] unethical, illegal, or scientifically questionable conduct of other laboratory employees or managers.101
Those Guiding Principles as well as SOFT’s go even further than other codes by requiring management and others to take “appropriate action” if there is “potential for, or there has been, a miscarriage of justice due to circumstances that have come to light, incompetent practice or malpractice”.102 This provision is the most far reaching of any code. The term “appropriate action” might include anything from personnel discipline to notifying the legal community of negligence or misconduct that may have affected the integrity of the forensic analysis or results.
Codes of Ethics in Forensic Science Societies
As the forensic science community becomes more aware of their ethical obligations as defined by codes of ethics and conduct, they will rely on them increasingly in response to issues that arise in the laboratory and in court. But will an association support its members who rely on specific provisions of a code of ethics or conduct? The CAC likewise pledges its full support to any criminalist that uses the code as justification of his or her conduct in a given situation. Just what “full support” means is not spelled out in either code.
4. ENFORCEABILITY AND ENFORCEMENT OF CODES OF ETHICS AND PROFESSIONAL RESPONSIBILITY Many of the organizations having codes of ethics or conduct also have provisions to enforce allegations of misconduct. Enforceability and actual enforcement, however, are two separate issues. It is easy to create a policy and process for investigating allegations of misconduct, but more courageous to actually impose a sanction for the conduct. In this section, the procedures for investigating allegations, determining that a violation exists and then imposing a sanction are reviewed. Next, the more difficult issue of whether an organization will, or can, withstand the consequences of imposing a sanction will be explored.
4.1 Enforceability The purposes of enforcing a code of ethics or professional responsibility may be apparent to many. AFTE, however, explains to its membership that its enforcement is not punitive in nature. To the contrary, the purposes of enforcement are:103 1. To educate both the individual accused and the membership in general of the ethics of the profession and the importance of ethical behavior. 2. To advise the criminal justice system of those individuals who engage in serious unethical activity, in order to promote the ends of justice. 3. To protect the reputation of the Association from those members who may engage in unethical activity. Like the codes themselves, many of the enforcement provisions are similar across organizations, suggesting some uniformity in process. Enforcement provisions are normally posted on the organization’s website. They are found in either the entity’s by-laws or more particularly articulated in a separate policy manual, or both.104 All organizations that have enforcement provisions have a body to conduct investigations, hold hearings, provide at least a minimal due process regime, and an opportunity to appeal. Table 4.7 catalogs some of the provisions of the enforcement procedures existing in conjunction with codes of ethics and conduct. Not all of the categories listed in the table were necessarily determinable in every association’s procedures, in which case the box was not checked.
115
Table 4.7 A Comparison of Enforcement Provisions Provisions AAFS ABFDE ASQDE ASCLD
GENERAL Standing ethics committee Ad hoc ethics committee Number of committee members Association officers as committee members Committee gives advisory opinions Any person may allege an ethics violation Written complaint by member is required Proceedings terminated/ suspended if accused resigns Proceedings do not terminate if accused resigns PROCEEDINGS President/Board opens case Committee recommends opening or closing case to Board
X
X
X
AFTE
X
X 4 1
X
5
X
X
X
X
X X
3
X
AFDAA CAC IAI
3
4
NAME NEAFS SWAFS
SOFT
FSSoc, UK
X
X
X
X
X
3
6
5
3
X 3
4 X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X X
X
X
X
Appeal to Board if case opened/not opened Committee opens case Board of Directors holds ethics hearing Committee holds ethics hearing Committee makes recommendation on findings/sanctions to Board Board makes decision Bifurcated decision process Vote necessary for committee recommendation
X X
X X
X
X
X
X
X
X
X
X
X
X
X
DUE PROCESS PROCEDURES Confidentiality X Notice to accused X X Right to respond in writing Right to appear at X hearing Right to counsel X Right to discovery X Right to present evidence X
X
X
X X
X
X
X
X
X X
X
X
X
X
X
X
X
X
X
X
2/3
3/4
3/4
X X X
X X
X
X
X
X
3/4
majority 2/3
2/3
X X X
X X
X X X
X X
X
X
X
X
X X
X X
X
X
X
majority
majority
X X
X X X
X
X
X
X X
X
X
X X
X
X
X
X (Continued)
Table 4.7 (Continued) Provisions
Right to confront accuser Right to cross examine witnesses Right to oral testimony Oath administered for oral testimony Declarations/affidavits Right to recorded or transcribed hearing Burden of proof
AAFS
AFTE
AFDAA CAC IAI
X ? X
X X
X X X
X
X
X X
X
X
FSSoc, UK
X X
X
X
X
X
Prepon- Preponderance derance 3/4
X
X
SOFT
X
Clear and convincing
X X
NAME NEAFS SWAFS
X
X
Vote necessary for Board finding SANCTIONS Private reprove/ reprimand/ admonishment Censure Suspension Probation Expulsion Decertification
ABFDE ASQDE ASCLD
X
X
X X
X
X
X
2/3
2/3 2/3
majority
X
X
X
X
X
X X
X X
X X
X
X
X
X105
X
X
X
X
X
X
X
X
X
APPEAL Appeal to Board/ X general membership Right to be heard before general membership Bifurcated decision process Vote required to 3/4 uphold Board’s finding/sanction Vote required for sanction if bifurcated decision process REINSTATEMENT Post-expulsion rights of reinstatement – permissive Post-suspension rights X to reinstatement Post-expulsion rights of reinstatement – prohibited
X
X
X
X
X
X
X
X
X
X
X
3/4
2/3 majority 3/4
3/4
2/3
X
X
3/4
X X X
X
X
X X X
X
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Kenneth E. Melson
Despite the similarities among enforcement provisions, there are significant differences in the structures of the processes. The most common process provides for standing ethics committees to make initial determinations to open or not open a cases on allegations of misconduct (e.g., AAFS, AFDAA, and NAME), to hold hearings (e.g., AAFS, ASQDE, AFDAA, NAME, NEAFS) and to provide recommendations to their governing bodies on both findings as to the allegations and warranted sanctions if violations are established (e.g., AAFS, ABFDE, ASQDE, AFDAA). The other most common procedure provides for the governing body, such as a board of directors or executive committee, for example, to make the determination as to whether a case should be opened in the first instance (e.g., ABFDE, AFTE, CAC, SWAFS). The ethics committee under that regime becomes an investigatory body, and prepares a report to the board or executive committee, at which time, if deemed appropriate, the executive committee holds the hearing and makes the determination as to a verdict and a sanction if necessary (e.g., ABFDE, AFTE). The standing Membership/Ethics Committee (MEC) of the Forensic Science Society, UK is also an investigatory body, but does not hold a hearing. Instead, the committee makes a recommendation to a separate, ad hoc Disciplinary Committee, which then holds a hearing. The MEC prosecutes the case before the Disciplinary Committee, and the respondent is afforded a plethora of due process rights. The Disciplinary Committee then makes a recommendation to the society’s Council for a decision and imposition of sanctions, if appropriate, from which there is no appeal.106 Another major difference between organizations pertains to the appeal. Most of the organizations with enforcement provisions provide for an appeal to the general membership.107 In some organizations, such as the AAFS, the process primarily entails a vote on whether to sustain or overrule the findings of the board or executive committee. Other organizations provide for a hearing before the general membership (e.g., AFTE, CAC). The IAI creates a Board of Appeals, composed of five members, which can uphold or overturn the decision of the Board of Directors or remand the case to the Professional Review Board.108 The voting pattern provides another difference. In some organizations there exists a structured voting pattern, first as to the finding of a violation and second as to the sanction to be imposed (e.g., ABFDE, AFTE, CAC). This structure may also pertain to the appeal before the general membership in some cases (e.g., AFTE, CAC). Within the structure for a vote on the sanction, different levels of consensus are required by some organizations. For example, AFTE requires a vote of three-quarters of the Board of Directors to expel a member from the association, a two-thirds vote for a public censure and if neither of those required votes are obtained, the member automatically receives a private reproval.109 The same “accusation phase/sanction phase” applies during an appeal to the AFTE general membership.110 In the CAC, a two-thirds vote is required for a suspension or an expulsion, a letter of reprimand being the default sanction.111
Codes of Ethics in Forensic Science Societies
Other more nuanced differences also appear among the various enforcement provisions. While confidentiality during the enforcement process is almost universally expected, the ABFDE maintains the identity of its Professional Review Committee (PRC) confidential, except for the chairperson.112 Members of the ethics committees implicitly must avoid conflicts of interest, but at least three organizations explicitly require a conflict-free process. ABFDE’s PRC must be “as free as possible from compromising influences”.113 Actual conflicts must be avoided and there should be an attempt to avoid perceived conflicts as well, according to the AFTE procedures.114 If an accused AFTE member communicates any objections to the makeup of the ethics committee based on bias or conflicts of interest, a procedure is invoked whereby the President of the Association rules on the objection.114 No member of the ASCLD Board may deliberate on any matter pertaining to an alleged violation of the code if “the Accused or Accuser are employed by the same employer as the member of the Board”.115 The same restriction applies to members of the CAC ethics committee.116 Complaints by members of associations against another member normally have to be written, and must contain certain information identifying the relevant code section and the underlying factual bases for the allegation.117 Complaints from other sources may also generate an ethics case, and committees may themselves initiate a complaint sua sponte from information that comes to its attention.118 ABFDE will not accept anonymous complaints, nor will it entertain complaints that involve pending litigation in which the respondent is testifying or is a consulting expert.119 At the conclusion of the litigation, the ethics case will be resurrected, which will leave the litigants in court cases in positions to file motions for new trials or to vacate settlement agreements if the ethics committee finds the respondent’s misconduct led to something other than a scientifically sound opinion. Except for one society, there are no time limitations in which a complaint may be filed, which in some cases creates issues concerning the availability of evidence and witnesses. Just how stale a case can be and the grounds for dismissing it for that reason are unclear and addressed on an ad hoc basis. Only AFTE appears to have its own version of a statute of limitations. Its procedures require that a complaint must be submitted “no later than 90 days after the complainant discovers that the ethical violation has occurred”.120 Ethics committees are not prohibited from proceeding when the accused refuses to respond or cooperate with the investigation or at a hearing. An AFTE member is required to “cooperate fully and in a timely fashion with the ethics process”,121 and a member of CAC has a “duty to assist the committee”.122 It is generally recognized that the burden of going forward and the burden of persuasion are on the association. The accused member often has the right to an attorney during the hearing, but in some organizations not during the investigative stage. In the AFTE, the ethics committee does not hold hearings, but conducts an investigation resulting in a report to the Board of Directors. The committee may request an interview of the accused, but the accused has no right to counsel at the interview.123 The
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right to counsel does not attach until the hearing phase of the inquiry.124 At a hearing before the ABFDE Board, an accused may make an oral presentation. No other person may do so for him or her. The hearing is considered by ABFDE as a procedural matter and not a legal proceeding. As a result the accused may not have legal counsel or other agent present at the time of his or her oral presentation.125 Due process considerations are important to the veracity of the hearing, and the perception of fairness by members of the association. Generally, organizations provide notice to the accused, give a right to respond and appear at a hearing, the right to counsel, to discovery and to present evidence. Several organizations provide a right to confront his or her accuser.126 Problems may occur when the complainant is not a member of the association, so it has no power to compel attendance. In other situations, the complainant may not have any first-hand information, and the case can be decided on relevant information obtained elsewhere. In those situations, confrontation between the complainant and the accused will likely not be constructive. The burden of proof varies among those associations that specify a certain level of proof must be attained. The AAFS has the most stringent burden of proof, that being clear and convincing evidence.127 Others prescribe a preponderance of the evidence.128 The degree of reliability and trustworthiness of the evidence considered by the committees is not articulated often. Only “evidence that can be verified and corroborated” may be relied upon by ABFDE.129 The President of the CAC determines the admissibility of evidence in a hearing before the Board. He or she “may be guided but shall not be governed by the Evidence Code of the State of California”.130 Ethics committees, whether they hold hearings or are just an investigatory entity, write reports for their executive body, often containing characterization of the alleged conduct and recommendations for sanctions. These reports do not need unanimous consent of the committee. For example, the required vote ranges from a majority to two-thirds of the committee. There are times when the dissenting party or parties wish to express their reasons for disagreement. Not all enforcement procedures allow for a minority report. ASCLD allows for a minority, dissenting report,131 as does AFTE,132 whereas ABFDE directs each member of the Professional Review Committee to prepare his or her own report, all of which are sent to the Chair who determines from examining all the reports whether there is a consensus among the members of the PRC.133
4.2 The Imposition of Sanctions Determining an appropriate sanction can be challenging. Sanctions provided for by organizations range from reproval to expulsion or decertification, and in some organizations no imposition of a sanction is an alternative even if an ethical violation is proven. It is in the interest of the organization to provide consistency in its assessment of sanctions. For many societies, there are no guidelines, and as the members of the committee change, so
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may attitudes toward punishment. ABFDE and AFTE provide considerations to be evaluated in conjunction with imposing a sanction.134 Set forth below are the considerations that an AFTE Board member should consider when imposing a sanction.135 1. Whether an injustice in the criminal justice system has resulted from unethical behavior. 2. Whether an injustice in the criminal justice system would likely have resulted from such unethical behavior. It shall not be a defense that no injustice actually did occur in the specific case, if an injustice was likely to have occurred. 3. Whether the individual had previously been disciplined for ethical violations by this or a similar association. 4. Whether the conduct exhibited a flagrant disregard for ethical considerations or was merely an exercise of bad judgment. 5. Whether the conduct was an isolated incident or was part of a pattern of continuing unethical conduct. 6. Whether the Accused recognizes the ethical violation and expresses regret and remorse for his/her conduct. 7. Whether the Accused has been honest and open with the Ethics Committee in its investigation. Frustration may occur when a member who is under investigation for an ethics violation resigns from the association prior to a full adjudication of the allegations of misconduct. The member leaves with no blemish on his or her record, and the public and justice system may never know of the indiscretion. AAFS, ASCLD, CAC, NEAFS and SWAFS all terminate the ethics proceedings if the member resigns. The AFTE may continue the investigation regardless of the resignation of the accused.136 The ASCLD Ethics Committee loses jurisdiction if the accused ceases to be a member, but the President shall issue an “Order of Exclusion”. That order has the effect of barring the accused from membership until it is rescinded by a majority vote of the Board. Should that happen, the ethics investigation will resume.137 It is important that members of an association, the legal profession, and the general public be aware of the disposition of allegations of ethical misconduct. Therefore, many associations publish the results of their findings and sanctions. AFTE, for example, publishes expulsions and public censures in its official publication, along with a summary of the facts.138 The facts and sanctions along with “[s]pecific names, places and like identifying information” are published to the membership by the CAC.139 The AAFS also names the accused member when it publishes in the Academy News a finding by the Board of Directors of a violation of its code.140 ABFDE, on the other hand, compiles for the education of its members an annual report indicating the type of complaints received and their disposition, but the identities of all complainants and respondents are kept anonymous.141
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4.3 Enforcement Enforceability is different from enforcement. An association has to have the will and the resources to investigate an allegation of unethical conduct, to hold a hearing, and to pursue the case through the internal appeals process. The internal enforcement process is not the end-game. Frequent litigation ensues after sanctions have been imposed. Organizations like those referenced in this chapter can fairly be described as falling into the category of “gatekeepers” over the rightful practice of a lawful trade or profession.142 Indeed, the livelihood of the individual member may be at stake after the imposition of a sanction by his or her discipline-specific organization. As the result of the litigious nature of sanctioned members, organizations are sometimes hesitant to take on an ethics issue fearing the impact on the organization’s finances. Not only would the organization have attorneys’ fees to pay, they may also be liable for a monetary judgment if it received an adverse ruling on the merits of the case. That is of a potential concern, regardless of the size of the organization, as was exhibited in a case involving the AAFS. The following description of the ethics process involving James A. Blanco is taken from an AAFS statement published on its website at http://www.aafs.org/ academy-resolves-litigation-involving-expulsion-member. On June 13, 2008, following an evidentiary hearing, the Academy’s Ethics Committee found clear and convincing evidence that Blanco had violated Section 1(a) of the Academy’s Code of Ethics and Conduct by submitting an erroneous and misleading report to be used in the judicial process, thereby diminishing confidence in forensic scientists and their disciplines. The Ethics Committee also found, by clear and convincing evidence, that Blanco had violated Section 1(c) of the Code of Ethics and Conduct by knowingly misrepresenting the data used to arrive at his conclusions in his report. As a result, the Ethics Committee recommended that Blanco be expelled from the Academy. On September 16, 2008, the Academy’s Board of Directors voted to adopt the recommendations of the Ethics Committee and ordered the expulsion of Blanco from the Academy. Blanco appealed the expulsion order to the entire membership of the Academy, which voted on February 18, 2009 to uphold the Board of Directors’ expulsion order. In June 2009, Blanco filed a lawsuit seeking to overturn his expulsion in the United States District Court for the Northern District of California, San Francisco Division, entitled James A. Blanco v. American Academy of Forensic Sciences, case no. C 09-02780 SI. On February 17, 2010, the Court handed down its opinion rejecting Blanco’s request for an injunction against the Academy attempting to overturn his expulsion. The full text of the Court’s reported decision can be found on Westlaw at 2010 WL 597985 (N.D.Cal. 2010), and on Lexis at 2010 U.S. Dist. LEXIS 20698.
Although Blanco’s attempt to obtain an injunction failed, he continued to press his federal law suit. During settlement negotiations he and the Academy reached an agreement. As the AAFS President reported in the same on-line statement: The Academy’s Board of Directors has agreed to a non-monetary settlement of the lawsuit brought by James Blanco, a former member of the Academy who was expelled after having been
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found to have committed ethical violations in 2008 following an investigation of the Academy’s Ethics Committee. To put an end to the nuisance of continued litigation, and the associated time and expense to the Academy, the Board of Directors resolved to settle the lawsuit under terms which simultaneously vacated the Board’s expulsion and permitted Mr. Blanco to withdraw from the Academy in exchange for his pledge to never again seek admission to the Academy and to refrain from any further lawsuits against the Academy and its members.143
The AAFS President described the lawsuit as a “nuisance” lawsuit and sought to protect the Academy’s treasury. Certainly that was accomplished with a “non-monetary” settlement. It ensured that “the Academy’s resources remain devoted to its mission”.144 One may wonder, however, why the Academy would settle a lawsuit over an expulsion when the basis for expulsion appeared so strong, the financial status of the association was excellent, and the Academy’s commitment to ethical behavior has always been unquestioned. The answer may be in the fact that all litigation has some risk. But that is what insurance is for – maybe. Insurance contracts often have what is frequently referred to as “hammer clauses”. Here is a description of a hammer clause found in Directors and Officers Liability Insurance Policies: Hammer clause: This is typically found in the defense section of a D&O policy and is the result of the insured’s right to consent to a settlement. Most D&O policies give the insured the right to consent, and therefore, to withhold consent, to a settlement. However, the insurer wants to be protected in those instances where it wants to settle a claim so as to limit its liability and the claimant is agreeable, but the insured refuses. In such an instance, the hammer clause generally states that the insurer’s liability is limited to that amount for which the case could have been settled, plus defense costs incurred up to the date that the claim could have been settled. In the event that the insured’s refusal to settle ends up costing more money (i.e., the case is settled for more later, or results in a judgment for more, or simply more defense costs are incurred) then the insurer is not liable for those additional amounts.145
In other words, if the association rejects the settlement offer the insurance company wants to accept, the association is responsible for any payment above that offer. The Blanco settlement was a “non-monetary” agreement, that is, the insurance company would only have to pay its own attorneys’ fees and walk away from the case. Had the Academy stood on principle, and a judgment against the Academy in any amount resulted from the continued litigation, it would have to shoulder the full burden of payment plus the insurer’s attorneys’ fees. Because of the uncertainty of any litigation, that risk was too much for the AAFS. On the other hand, if the settlement offer by the plaintiff in a lawsuit is high, then the hammer clause may be irrelevant. In addition, serious settlement discussion may not start until after the motions for summary judgment have been ruled upon, and the court finds that there is a genuine issue of fact to be tried before a judge or jury.
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In Dougherty v. Haag,146 Paul M. Dougherty was censured by AFTE because of a report and testimony delivered in an unreasonable-use-of-force case. Dougherty was employed as an expert by the State of Louisiana, and Lucien Haag was employed by the plaintiff. Haag filed an ethics complaint with AFTE against Dougherty. The ethics committee investigation concluded that Dougherty had given testimony that “was not objective, not well supported by past experience or experiment and reflected either seriously flawed science or was a deliberate attempt to mislead the court”.147
Dougherty filed a common law right of fair procedure case in California.148 Under the common law doctrine of fair procedure, where it is applicable, an organization may not exclude or expel an individual arbitrarily, “either because the reason for the exclusion or expulsion is itself irrational or because, in applying a given rule to a particular case, the society has proceeded in an unfair manner.” Thus, the doctrine has both substantive and procedural aspects: “[W]henever a private association is legally required to refrain from arbitrary action, the association’s action must be both substantively rational and procedurally fair.” The procedural element need not have the same level of formality of a court trial, but the person “must at least be provided with some meaningful opportunity to respond to the ‘charges’ against him [or her].”149 (Citations omitted.)
The case proceeded as follows: … [O]n May 16, 2005, Dougherty filed this action in Orange County Superior Court, seeking both a writ of mandate to overturn the censure and asserting various causes of action against Haag and AFTE (mostly tort, one was for breach of contract). [The trial judge] denied the petition for writ of mandate in December of 2006, finding that, “Based upon the totality of the administrative record, this Court does not find any material deviations from the AFTE Bylaws or the Procedures for Enforcement of the Code of Ethics, nor does it find any credible evidence of bias, conflicts of interest, or procedural due process violations.” The remaining claims quickly fell in a motion for judgment on the pleadings, and in January 2007, a judgment was entered in favor of Haag, AFTE, and the other defendants. Dougherty timely appealed in March.150
The appellate court applied the right to fair procedure to AFTE’s process for resolving ethical allegations and imposing sanctions against its members. In the court’s words, “there was a surfeit of fair procedure” provided Dougherty by AFTE.151 Put another way, the court proclaimed that Dougherty received an “avalanche of ‘due process’”.151 Not surprisingly, the court affirmed the judgment of the lower court. While the right to fair procedure may be a uniquely California common law right, the Haag case has general importance for all forensic science organizations. Any time allegations against a member of an organization are to be adjudicated with the potential for sanctions, he or she ought to be treated fairly, equitably, with the minimal process of notice and the right to respond to the allegations. Additional procedural protections will strengthen an organization’s defense against allegations of arbitrariness,
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capriciousness or discriminatory practices, and in California they will go a long way toward establishing that a right to fair procedure was in fact afforded. A lawsuit filed by a sanctioned member is often difficult, time consuming and sometimes expensive. Having the perseverance to do so on principled grounds founded on the association’s code of ethics or professional responsibility should be applauded. As Judge Sills concluded in the Dougherty v. Haag matter discussed above: A private organization whose purpose is to ensure the integrity of expert testimony actually had the gumption to censure a member whose testimony bordered on the ludicrous …. The organization painstakingly gave the errant member multiple opportunities to explain why his testimony wasn’t as bad as it looked, and ultimately, after about four years of internal due process, his peers censured him. In our opinion, they didn’t deserve a lawsuit, they deserve a medal.
One way to avoid time consuming and expensive litigation is to go to arbitration. Only one enforcement process has provisions for arbitration. The ABFDE provides for mandatory and binding arbitration if there is a dispute between the Board and a member charged with an ethics violation. Failure of the member to request arbitration renders the decision of the Performance Review Committee final. The arbitration has to be conducted within a year and the findings of the arbitrator are final and binding on all parties.152
5. CONCLUSION Forty years after Professor James Starrs encouraged all forensic scientists to abide by strong ethics and professional guidelines, the forensic science community is still not homogeneous in its coverage of forensic scientists by codes of ethics or conduct. There are many codes of ethics and professional responsibility that cover some, but not all, forensic scientists. The codes differ in specificity, giving some scientists clear guidance and others broad, general prescriptions. The American Society of Crime Laboratory Directors/Laboratory Accreditation Board has enacted Guiding Principles of Professional Responsibility that cover most of the publicly and privately funded traditional crime laboratories and their personnel. It is that type of coverage that was envisioned in the NAS report on the status of forensic science in the United States. Nevertheless, there are still many forensic examiners who conduct examinations and testify in court who are not covered by any code of ethics or professional responsibility. More has to be accomplished to include all those experts practicing in the criminal and civil justice systems in the United States. Even when covered by a code, individuals who are alleged to have violated it may not be proceeded against by their organization. Most organizations that have codes also have enforcement provisions. Some organizations, however, are reluctant to prosecute
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the case against its member for fear of subsequent civil litigation which, even if the organization prevails, will cost money and likely result in their insurance company terminating the organization’s coverage. Without the will and the process to enforce its code, the organization’s best hope may be that the moral persuasion of its code and peer pressure will prevail on its members to avoid unethical and unprofessional conduct.
NOTES AND REFERENCES [1] Kenneth E. Melson is an adjunct professor at The George Washington University Law School, a board member of the American Society of Crime Laboratory Directors/Laboratory Accreditation Board, a co-chair of the Executive Office of the President’s National Science and Technology Council’s Subcommittee on Forensic Science, and a Senior Advisor on Forensic Science at the U.S. Department of Justice. The views and opinions expressed herein are solely his own and do not necessarily reflect those of any organization or agency to which the author belongs. [2] “[A] traditional crime laboratory has been defined as constituting ‘a single laboratory or system comprised of scientists analyzing evidence in one or more … discipline[ ] ….’” “Identification units” are those outside of traditional crime laboratories, usually within local police departments and do not offer a full range of forensic disciplines. National Academies of Sciences, National Research Council, Strengthening Forensic Science in the United States: A Path Forward, The National Academies Press, Washington, D.C., 2009, pp. 36–37 and 63–64. [3] J.L. Peterson, J.E. Murdock, Forensic science: Developing an integrated system of support and enforcement, Journal of Forensic Sciences 34 (1989) 749–762, 759. “A survey of 50 criminalistics laboratories in the summer of 1987 yielded returns of only 6 such codes, many of which were of the parent police agency and not particularly relevant to forensic science matters.” But see the Illinois State Police Forensic Sciences Command Rules of Conduct/Code of Ethics, http://www.isp.state. il.us/forensics/. [4] ASCLD/LAB Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, http://www.ascld-lab.org/. As of May 6, 2011, 385 crime laboratories were accredited by ASCLD/LAB, including 192 state laboratories, 128 local agency laboratories, 23 federal laboratories, 17 international (outside the United States) laboratories and 25 private laboratories. [5] J.L Peterson, J.E. Murdock, Forensic science: Developing an integrated system of support and enforcement, Journal of Forensic Sciences 34 (1989) 749–762, 759. [6] National Academies of Sciences, National Research Council, Strengthening Forensic Science in the United States: A Path Forward, The National Academies Press, Washington, D.C., 2009. [7] K.E Melson, Embracing the path forward: The journey to justice continues, New Eng. J. on Crim. & Civ. Confinement 36 (Summer 2010) 197. [8] http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/ history-ama-ethics.page? [9] The NWAFS website link to the Code of Ethics indicates that it is a “proposed” code. There is no indication on the webpage for the Code of Ethics whether it has been adopted by NWAFS. [10] J.E. Starrs, The ethical obligations of the forensic scientist in the criminal justice system, J. of the AOAC 54 (1971) 906–914, 914. [11] See the Paul Coverdell National Forensic Science Improvement Act (P.L. 106–561) grant program, 42 U.S.C. § 3797k(4) which requires as part of the application for a grant that the applicant certify that: “a government entity exists and an appropriate process is in place to conduct independent external investigations into allegations of serious negligence or misconduct substantially affecting the integrity of the forensic results committed by employees or contractors of any forensic laboratory system, medical examiner’s office, coroner’s office, law enforcement storage facility, or medical facility in the State that will receive a portion of the grant amount.”
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[12] D.M. Lucas, The ethical responsibilities of the forensic scientist: Exploring the limits, Journal of Forensic Sciences 34 (1989) 719–729, 727. [13] O.C. Schroeder, Ethical and moral dilemmas confronting forensic scientists, Journal of Forensic Sciences 29 (1984) 966–986, 969. [14] Forensic Toxicologist Certification Board, Inc. (FTCB), http://home.usit.net. [15] National Association of Medical Examiners (NAME), http://thename.org/. [16] Association of Forensic DNA Analysts and Administrators (AFDAA), By-Laws, Article III, E.1. http://www.afdaa.org/Welcome.html. [17] Mid-Atlantic Association of Forensic Scientists (MAAFS), Code of Ethics, 1.2.4. http://www.maafs. org. [18] American Society of Crime Laboratory Directors (ASCLD) Code of Ethics, http://www.ascld.org/. [19] See National Association of Medical Examiners (NAME) Code of Ethics and Conduct, http:// thename.org/, and American Academy of Forensic Sciences (AAFS) Code of Ethics and Conduct, http://www.aafs.org. [20] Northwest Association of Forensic Scientists (NWAFS) By-Laws, Chapter III, Section 3.E.(1); Constitution Article VI, Section 2. http://www.nwafs.org/. [21] The American Board of Forensic Document Examiners has a document entitled “Code of Ethics and Standard Practices,” the opening paragraph of which calls the same document the “Code of Ethics and Competency”. [22] Forensic Toxicologist Certification Board, Inc. (FTCB) Code of Ethics, http://home.usit.net. [23] Southwestern Association of Forensic Scientists (SWAFS), Code of Professional Conduct Section VI. http://www.swafs.us/. [24] American Academy of Forensic Sciences (AAFS) Board of Directors’ Policy and Procedure Manual, Section 4.4.4.6, http://www.aafs.org; National Association of Medical Examiners (NAME) Code of Ethics and Conduct Section 1.g., http://thename.org/. [25] National Association of Medical Examiners (NAME) Code of Ethics and Conduct Section 1.g. http://thename.org/. [26] National Association of Medical Examiners (NAME) Code of Ethics and Conduct Section 1.a. http://thename.org/ and American Academy of Psychiatry and the Law Ethical Guidelines for the Practice of Forensic Psychiatry, Section I. http://www.aapl.org/. [27] Illinois State Police, Forensic Sciences Command, Rules of Conduct/Code of Ethics, Section VIII.C. http://www.isp.state.il.us/forensics/. [28] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, p. 15. [29] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, p. 189. [30] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, p. 205. [31] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, p. 206. [32] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, p. 208. [33] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, p. 33. [34] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, p. 47, 247. [35] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, p. 247. [36] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, pp. 247–253. [37] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, p. 47. [38] Report to the AAFS Board of Directors from the Ethics and Long Term Planning Committees about Their Joint Review of the AAFS Code of Ethics and Its Administration, June 21, 2007, p. 1.
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[39] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, pp. 58–59. [40] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, p. 289. [41] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, p. 290. [42] K.S. Field, History of the American Academy of Forensic Sciences, 1948–1998, American Society for Testing and Materials, West Conshohocken, PA, 1998, pp. 289–290. [43] J.L. Peterson, Symposium: Ethical conflicts in the forensic sciences, Journal of Forensic Sciences 34 (1989) 717. [44] J.L. Peterson, Symposium: Ethical conflicts in the forensic sciences, Introduction, Journal of Forensic Sciences 34 (1989) 717. [45] P.D. Barnett, Ethics in Forensic Science: Professional Standards for the Practice of Criminalistics, CRC Press, (2001) p. 28. [46] Report by Dr. Robert Weinstock, Chair, Good Forensic Practice Committee to the Executive Committee, American Academy of Forensic Sciences, January 14, 1999. [47] American Academy of Forensic Sciences (AAFS) Code of Ethics and Conduct, Section 1.c. http:// www.aafs.org. [48] P.D. Barnett, Ethics in Forensic Science: Professional Standards for the Practice of Criminalistics, CRC Press, (2001) p. 27. [49] P.D. Barnett, Ethics in Forensic Science: Professional Standards for the Practice of Criminalistics, CRC Press (2001) p. 30. [50] American Board of Forensic Toxicology (ABFT) Code of Ethics, http://www.abft.org/. [51] The Forensic Science Society, UK (FSSoc) Code of Conduct, Section 2. http://www.forensicscience-society.org.uk. [52] ASCLD/LAB Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, fn i. http://www.ascld-lab.org/. [53] Illinois State Police Forensic Sciences Command Rules of Conduct/Code of Ethics, http://www. isp.state.il.us/forensics/. [54] The Code of Ethics of the California Association of Criminalists (CAC), http://www.cacnews.org/ [55] See for example the European Network of Forensic Science Institutes (ENFSI) Code of Conduct, http://www.enfsi.eu/, and the Academia Iberoamericana de Criminalistica y Estudios Forenses (Iberoamerican Academy of Criminalistics and Forensic Studies) (AICEF) Code of Conduct, http://www.aicef.net/; American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, http://www.ascld-lab.org/, and Society of Forensic Toxicologists (SOFT) Guiding Principles of Professional Responsibility, http://www.soft-tox.org/. [56] For example, the NWAFS Code of Ethics is remarkably similar to the CAC Code of Ethics. [57] M.J. Saks, Prevalence and impact of ethical problems in forensic science, J. Forensic Sci. 34 (1989) 772–793, 784–785. [58] Northeastern Association of Forensic Scientists (NEAFS) Code of Ethics, Article II. 1. prohibits the acceptance of gifts to influence NEAFS members in an official capacity for NEAFS, not the individual’s employer. Gratuities or bribes to influence a public official is a violation of state and federal law. http://www.neafs.org/. [59] Mid-Atlantic Association of Forensic Scientists (MAAFS) Code of Ethics, Section 1.2.1 prohibits the acceptance of gifts to influence MAAFS members in an official capacity for MAAFS, not the individual’s employer. Gratuities or bribes to influence a public official is a violation of state and federal law. http://www.maafs.org/. [60] Academia Iberoamericana de Criminalistica y Estudios Forenses (Iberoamerican Academy of Criminalistics and Forensic Studies) (AICEF) Code of Conduct, Section 10. http://www.aicef.net/; European Network of Forensic Science Institutes (ENFSI) Code of Conduct, Section 10. http:// www.enfsi.eu/. [61] European Network of Forensic Science Institutes (ENFSI) Code of Conduct, Section 11. http:// www.enfsi.eu/; Academia Iberoamericana de Criminalistica y Estudios Forenses (Iberoamerican
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Academy of Criminalistics and Forensic Studies) (AICEF) Code of Conduct, Section 10. http:// www.aicef.net/. [62] American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, Section 11. http://www.ascld-lab.org/; Society of Forensic Toxicologists (SOFT) Guiding Principles of Professional Responsibility, Competency and Proficiency, Section 3. http://www.soft-tox.org/. [63] See, for example, Standards of Professional Conduct for Members of the International Association for Identification (IAI), paragraph 18. http://www.theiai.org/; Association of Firearms and Toolmark Examiners Code of Ethics (AFTE), Section II.A. http://www.afte.org/. [64] Code of Professional Conduct, Southwestern Association of Forensic Scientists (SWAFS), Section III.C. http://www.swafs.us/. [65] Mid-Atlantic Association of Forensic Scientists Code of Ethics (MAAFS) Section 1.3.4. http://www. maafs.org/; Northeastern Association of Forensic Scientists (NEAFS), Article III, Section 4. http:// www.neafs.org/. [66] Midwestern Association of Forensic Scientists (MAFS) Code of Ethics, Section II. A. http://www. mafs.net/. [67] M.J. Saks, Prevalence and impact of ethical problems in forensic science, J. Forensic Sci. 34 (1989) 772–793, 783. [68] However, see the SOFT Guidelines of Professional Responsibility which were adopted in June of 2011, and based substantially on the ASCLD/LAB Guiding Principles. Society of Forensic Toxicologists (SOFT), http://www.soft-tox.org/. [69] American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, Section 12. http://www.ascld-lab.org/. [70] The Code of Ethics of the California Association of Criminalists (CAC) Section I.E. http://www. cacnews.org/. [71] American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, Section 15. http://www.ascld-lab.org/; Society of Forensic Toxicologists (SOFT) Guiding Principles of Professional Responsibility, Clear Communications, Section 3. http://www.soft-tox.org/; Canadian Society of Forensic Science (CSFS) Code of Conduct, Section 9. http://www.csfs.ca/. [72] American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, Section 11. http://www.ascld-lab.org/; Society of Forensic Toxicologists (SOFT) Guiding Principles of Professional Responsibility, Clear Communications, Section 3. http://www.soft-tox.org/; also see Canadian Society of Forensic Science (CSFS) Code of Conduct, Section 7.b. http://www.csfs.ca/. [73] Mid-Atlantic Association of Forensic Scientists Code of Ethics (MAAFS) Section 1.1.2. http://www. maafs.org/. [74] American Society of Questioned Document Examiners (ASQDE) Code of Ethics, Section 2, presented at the 50th Anniversary Conference of the ASQDE by James V. P. Conway, August 22 through 26, 1992. [75] American Society of Questioned Document Examiners (ASQDE) Code of Ethics, Section b). http://www.asqde.org/. [76] Standards of Professional Conduct for Members of the International Association for Identification (IAI), Section 6. http://www.theiai.org/. [77] American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, Section 9. http://www.ascld-lab.org/; Society of Forensic Toxicologists (SOFT) Guiding Principles of Professional Responsibility, Competency and Proficiency, Section 2. http://www.soft-tox.org/. [78] Mid-Atlantic Association of Forensic Scientists (MAAFS) Code of Ethics, Section 1.4.8. http://www. maafs.org/; Midwestern Association of Forensic Scientists (MAFS), Section I.H. http://www.mafs.net/. [79] Mid-Atlantic Association of Forensic Scientists (MAAFS) Code of Ethics, Section 1.5.4. http:// www.maafs.org/; Midwestern Association of Forensic Scientists (MAFS), Section II.D. http://www. mafs.net/.
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[80] Asian Forensic Science Network Code of Conduct (AFSN), Paragraph 9. http://www.asianforensic. net/. [81] American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, Section 10. http://www.ascld-lab.org/. [82] Association of Firearms and Toolmark Examiners (AFTE) Code of Ethics, IV.B. http://www.afte. org/; The Code of Ethics of the California Association of Criminalists (CAC), Section IV.C. http:// www.cacnews.org/; Mid-Atlantic Association of Forensic Scientists (MAAFS) Code of Ethics, 1.7.2. http://www.maafs.org/. [83] American Board of Criminalistics Rules of Professional Conduct, paragraph 13. http://www. criminalistics.com/. [84] American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, paragraph 5. http://www.ascld-lab.org/; Society of Forensic Toxicologists (SOFT) Guiding Principles of Professional Responsibility, Professionalism, Secion 5. http://www.soft-tox.org/. [85] American Board of Criminalistics (ABC) Rules of Professional Responsibility, paragraph 13. http:// www.criminalistics.com/. [86] Australian and New Zealand Forensic Science Society (ANZFSS) Code of Ethics, Conduct in Court, 4. http://www.anzfss.org.au/. [87] Asian Forensic Science Network Code of Conduct (AFSN), Section 8. http://www.asianforensic.net/; Australian and New Zealand Forensic Science Society, Inc. (ANZFSS) Code of Ethics, Reporting, Section 7. http://www.anzfss.org.au/. [88] Academia Iberoamericana de Criminalistica y Estudios Forenses (Iberoamerican Academy of Criminalistics and Forensic Studies) (AICEF) Code of Conduct, Section 13. http://www.aicef.net/; Asian Forensic Science Network Code of Conduct (AFSN), Section 6. http://www.asianforensic. net/. [89] Academia Iberoamericana de Criminalistica y Estudios Forenses (Iberoamerican Academy of Criminalistics and Forensic Studies) (AICEF) Code of Conduct, Section 16. http://www.aicef.net/; Asian Forensic Science Network Code of Conduct (AFSN), Section 10. http://www.asianforensic. net/; European Network of Forensic Science Institutes (ENFSI) Code of Conduct, Section 16. http:// www.enfsi.eu/. [90] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, 1.B. http://www.afte.org/. [91] See, for example, International Association for Identification (IAI) Standards of Professional Conduct, paragraph 14. http://www.theiai.org; and the American Board of Criminalistics (ABC) Rules of Professional Responsibility, paragraph 2. http://www.criminalistics.com/. [92] Association of Firearms and Toolmark Examiners (AFTE) Code of Ethics, IV.C. http://www.afte. org; Code of Ethics of the California Association of Criminalists (CAC), Section IV. D. http://www. cacnews.org/. [93] National Association of Medical Examiners (NAME) Code of Ethics and Conduct, paragraph 1.f. http://thename.org/. [94] Code of Ethics of the California Association of Criminalists (CAC), Section III.B. http://www. cacnews.org/; Association of Firearms and Toolmark Examiners (AFTE) Code of Ethics, Section III.A. http://www.afte.org/. [95] Mid-Atlantic Association of Forensic Scientists (MAAFS) Code of Ethics, Section 1.6.4. http:// www.maafs.org/. [96] The Code of Ethics of the California Association of Criminalists (CAC), headnote. A set of amendments in 2010 dealt with gender, grammar and typographical errors. http://www.cacnews.org/. [97] 42 U.S.C. § 3797k. [98] American Board of Criminalistics (ABC) Rules of Professional Conduct, Rule 18. http://www. criminalistics.com/; American Society of Crime Laboratory Directors (ASCLD) Code of Ethics, Section 2.10. http://www.ascld.org/; International Association for Identification Standards of Professional Conduct, Rule 12 (IAI). http://www.theiai.org/; Mid-Atlantic Association of Forensic Scientists (MAAFS) Code of Ethics, Rule 1.2.5. http://www.maafs.org/.
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[99] Southwestern Association of Forensic Scientists (SWAFS) Code of Professional Responsibility, II. D. http://www.swafs.us/. [100] Midwestern Association of Forensic Scientists (MAFS) Code of Ethics,V. C. http://www.mafs.net/. [101] American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, paragraph 5. http://www.ascld-lab.org/; also see Society of Forensic Toxicologists (SOFT) Guiding Principles of Professional Responsibility, Professionalism, Section 5. http://www.soft-tox.org/. [102] American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) Guiding Principles of Professional Responsibility for Crime Laboratories and Forensic Scientists, paragraph 5. http://www.ascld-lab.org/; Society of Forensic Toxicologists (SOFT) Guiding Principles, Section 6. http://www.soft-tox.org/. [103] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section I.A. http://www.afte.org/. [104] The policy manuals are generally available to the public on the web, except for ABC which requires payment for a copy of their procedures. [105] Expulsion may only be accomplished by a 3/4 vote of the membership at the annual business meeting. Northeastern Association of Forensic Scientists (NEAFS) By-laws, Article 9e. http:// www.neafs.org/. [106] See the Disciplinary Regulations of the Forensic Science Society, UK (FSSoc), http://www.forensicscience-society.org.uk/. [107] See, for example, American Academy of Forensic Sciences (AAFS) Code of Ethics and Conduct, Section V. i. http://www.aafs.org; California Association of Criminalists (CAC) The Code of Ethics Enforcement of the CAC, IV. A. 3. http://www.cacnews.org/. [108] International Association for Identification (IAI) By-laws, Section 16.01(a) (7). http://www.theiai. org/. [109] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section IV. H. 11. c) (4). http://www.afte.org/. [110] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section IV. I. 14. c). http://www.afte.org/. [111] The Code of Ethics Enforcement of the California Association of Criminalists (CAC), Section III. B. 5. (b). http://www.cacnews.org/. [112] American Board of Forensic Document Examiners (ABFDE) Professional Review Procedures, Section III. H. http://www.abfde.org/. [113] American Board of Forensic Document Examiners (ABFDE) Professional Review Procedures, Section II. F. http://www.abfde.org/. [114] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section IV. A. 5. http://www.afte.org/. [115] American Society of Crime Laboratory Directors (ASCLD) Code of Ethics, Section 3. B. 6. http:// www.ascld.org/. [116] The Code of Ethics Enforcement of the California Association of Criminalists (CAC), Section II. C. 7. http://www.cacnews.org/. [117] See, for example, American Board of Forensic Document Examiners (ABFDE) Professional Review Procedures III. D. http://www.abfde.org/; American Society of Crime Laboratory Directors (ASCLD) Code of Ethics, Section 3. A. 4. http://www.ascld.org/. [118] See, for exmaple, American Board of Forensic Document Examiners (ABFDE) Professional Review Procedures 1. A. http://www.abfde.org/; American Society of Crime Laboratory Directors (ASCLD) Code of Ethics, Section 3. A. 3. http://www.ascld.org/; American Academy of Forensic Sciences (AAFS) Board of Directors Policy and Procedure Manual, Section 6.1.3.7. http://www.aafs.org. [119] American Board of Forensic Document Examiners (ABFDE) Professional Review Procedures, Sections I. D. and III. A. http://www.abfde.org/. [120] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section IV. C. 1. http://www.afte.org/. [121] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section IV. A. 3. http://www.afte.org/.
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[122] The Code of Ethics Enforcement of the California Association of Criminalists (CAC), Section II. C. 8. http://www.cacnews.org/. [123] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section IV. E. 5. b). http://www.afte.org/. [124] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section IV. H. 5. http://www.afte.org/. [125] American Board of Forensic Document Examiners (ABFDE) Professional Review Procedures, Section V. D. 3. http://www.abfde.org/. [126] See, for example, American Society of Crime Laboratory Directors (ASCLD) Code of Ethics, Section 3. B. 6. http://www.ascld.org/; National Association of Medical Examiners (NAME) Code of Ethics and Conduct, 5. g. http://thename.org/; Northeastern Association of Forensic Scientists (NEAFS) Code of Ethics, Article IV. 3. c. http://www.neafs.org/. [127] American Academy of Forensic Sciences (AAFS) Board of Directors Policy and Procedure Manual, Section 6.1.3.7. http://www.aafs.org. [128] See, e.g., American Society of Crime Laboratory Directors (ASCLD) Code of Ethics, Section 3. C. Hearings, 6. http://www.ascld.org/; Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section IV. H. 11 a). http://www.afte.org/. [129] American Board of Forensic Document Examiners (ABFDE) Professional Review Procedures, Section 1. C. http://www.abfde.org/. [130] The Code of Ethics Enforcement of the California Association of Criminalists (CAC), Section III. B. 3. (e). http://www.cacnews.org/. [131] American Society of Crime Laboratory Directors (ASCLD) Code of Ethics, Section 3. C. Hearings, 8. http://www.ascld.org/. [132] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section IV. F. 4. b). http://www.afte.org/. [133] American Board of Forensic Document Examiners (ABFDE) Professional Review Procedures, Section IV. A. http://www.abfde.org/. [134] American Board of Forensic Document Examiners (ABFDE) Professional Review Procedures, Section V. I. http://www.abfde.org/; Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section III. A. http://www.afte.org/. [135] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section III. A. http://www.afte.org/. [136] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section II. D. http://www.afte.org/. [137] American Society of Crime Laboratory Directors (ASCLD) Code of Ethics, Section 3. C. Inquiries, 6. http://www.ascld.org/. [138] Association of Firearms and Toolmark Examiners (AFTE) Procedures for the Enforcement of the Code of Ethics, Section IV. J. http://www.afte.org/. [139] The Code of Ethics Enforcement of the California Association of Criminalists (CAC), Section III. C. 1. http://www.cacnews.org/. [140] American Academy of Forensic Sciences (AAFS) Board of Directors Policy and Procedure Manual, Section 6.1.4.3. http://www.aafs.org. [141] American Board of Forensic Document Examiners (ABFDE) Professional Review Procedures, Section VI. C. http://www.abfde.org/. [142] See Dougherty v. Haag, 165 Cal. App. 4th 315, 317, 81 Cal. Rptr. 3d 1, 2 (2008) and Yari v. Producers Guild of America, Inc. 161 Cal. App. 4th 172, 176, 73 Cal. Rptr. 3d 803 (2008), 176, citing Ezekial v. Winkley (1977) 20 Cal. 3d 267, 272, 142 Cal. Rptr. 418, 572 P.2d 32 (1977). [143] The full text of the Settlement Agreement may be found at http://aafs.org/sites/default/files/pdf/ BlancoSettlementAgreement.pdf. [144] http://www.aafs.org/academy-resolves-litigation-involving-expulsion-member. [145] http://www.willis.com/documents/publications/Services/Executive_Risks/Willis_D&O_ Glossary2.pdf. [146] Dougherty v. Haag, 165 Cal. App. 4th 315, 81 Cal. Rptr. 3d 1 (2008).
Codes of Ethics in Forensic Science Societies
[147] Dougherty v. Haag, 165 Cal. App. 4th 315, 328, 81 Cal. Rptr. 3d 1, 9 (2008). [148] The right of fair procedure comes from California common law dating back to the 1800s. The common law right “should not be confused with constitutional ‘due process.’” Dougherty v. Haag, 165 Cal. App. 4th 315, 317, 81 Cal. Rptr. 3d 1, 2 (2008). [149] Davis v. First Health Group Corporation, 2009 WL 4172776 (Cal. App. 6th Dist.) 9. [150] Dougherty v. Haag, 165 Cal. App. 4th 315, 334, 81 Cal. Rptr. 3d 1, 14 (2008). [151] Dougherty v. Haag, 165 Cal. App. 4th 315, 340, 81 Cal. Rptr. 3d 1, 19 (2008). [152] American Board of Forensic Document Examiners (ABFDE) Professional Review Procedures, Section VII. F. http://www.abfde.org/ABFTE VII.
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