General Forensic Ethical Dilemmas

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General Forensic Ethical Dilemmas Jay A. Siegel Every scientist faces ethical dilemmas in virtually all facets of their work. Many of these ethical issues are common to all the players. These include statements about one’s credentials, keeping current in one’s field, employing best practices, collection and interpretation of data, making proper records and reports, etc. The forensic scientist is subject to the same ethical and moral considerations as any other scientist by virtue of the scientific component of their vocation: the scientific analysis and interpretation of evidence obtained as the result of criminal or civil acts against other people or society. In addition to this, forensic scientists often encounter ethical situations by virtue of the forensic part of their job; the placement of most forensic science laboratories within law enforcement agencies and the requirement that the results of their scientific analyses be communicated to attorneys, judges and juries in criminal and civil court proceedings. The purpose of this chapter is to categorize and discuss common major ethical dilemmas faced by forensic scientists as they wear their two hats of scientist and forensic actor in the justice system. It will be demonstrated that forensic scientists face ethical challenges in virtually every facet of their career and that constant vigilance is necessary to avoid being tripped up at these many points along the way. The next section of this chapter provides a kind of taxonomy of ethics situations that arise in forensic science. Under each major category there is a list of particular issues that fall within that designation. The rest of the chapter is a discussion of these issues and how they play out in the everyday work life of a forensic scientist. The lists are not meant to be exhaustive.

1. MAJOR CATEGORIES OF ETHICAL DILEMMAS IN FORENSIC SCIENCE Although there are a myriad of ethical situations facing forensic scientists, they generally fall into a few major categories: I. Professional Credentials Misrepresentation Certifications II. Laboratory Analytical Procedures “Dry-labbing” Insufficient analysis l

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Ethics in Forensic Science DOI: 10.1016/B978-0-12-385019-5.00003-8

© 2012 Elsevier Inc. All rights reserved.

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Indiscriminant analysis Analyzing to fit the written law (e.g. aggregate weights of drug submissions) III. Interpretation of Analytical Data and Presentation of Testimony in Court Confirmational, contextual bias Laboratory reports vs. certificates of analysis Terminology Deceptive/confusing testimony vs. outright lies Excessive equivocacy (failing to hold a founded opinion) Advocacy (understating and/or overstating evidentiary value) IV. Privately Employed Forensic Scientists Bias Contingency fees Hired gun Favoritism (always testifying for either prosecution or defense) V. Publicly Employed Forensic Scientists Bias – to whom does one report and who signs the paycheck (“state employee stigma”) Pressure – from prosecutors: shade your testimony from police investigators; get the bad guys off the street Always testifying “for” the prosecution VI. Obligations to the Profession of Forensic Science and Maintenance of Professional Skills Failure to keep current with field Dishonest proficiency tests Dishonest continuing education practices l

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2.  DISCUSSION OF ETHICAL DILEMMAS IN FORENSIC SCIENCE 2.1  Professional Credentials There are, of course, many instances when a scientist may be called upon to demonstrate personal credentials and/or qualifications. These include applying for a job, promotion or in attracting clients to a business or practice. For forensic scientists, there are additional situations where professional credentials are needed. The most important example is when a forensic scientist is in the process of being qualified as an expert witness in court. A forensic scientist must be declared to be an expert by the judge before each and every courtroom testimony. Typically, the scientist will be called by (some might erroneously call it testifying on behalf of ) either the prosecution or defense in criminal cases, or the plaintiff or defense in civil cases. This process can range from a perfunctory stipulation to a long drawn-out question and answer session (the voir dire). If a forensic scientist is well known to the parties in the case, or if

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the best strategy of the adverse party is to not challenge the scientist’s qualifications as an expert, then there may be an agreement or stipulation among the parties that the scientist is an expert for the purpose of this trial or hearing in a particular and often narrow area of expertise. In such cases, the scientist will not have to recite personal qualifications in court, and may not even have to submit a CV for the record, although common practice is to do so. If there is such a stipulation, then the expert’s qualifications may not be vetted at any time during that case and the jury may never hear their credentials. Once accepted by the court, an expert remains an expert for the duration of the proceeding. In those cases where a forensic scientist or other expert witness is challenged or at least questioned about their qualifications as an expert, there may be specific questions about education, training, number/type of instances of expert testimony, balance between testifying “for” prosecution/plaintiff/defense, remuneration (if in private practice), and other relevant questions. The witness is under oath at this time, and lying about one’s qualifications or credentials is perjury. However, this voir dire process in court does not necessarily provide assurance that an expert witness will not lie about their qualifications. However, in order for someone to be held accountable for falsifying credentials, they must first be caught. Someone must exercise due diligence and do some fact checking. In most cases, the court will not do this and the party for whom the expert is working is unlikely to, as they arguably would have no reason to challenge their “own” expert. This means that it often falls to the adverse party. In civil cases, where there are more often resources available to take the time to do this, it is often done. In many criminal cases, the adverse party may not have the time or resources to check these credentials. Misrepresentations of credentials include educational degree attainment (e.g. claiming an unearned Ph.D. or claiming a degree was earned from a particular institution when, in fact, it was not), professional licensures or certifications (e.g. falsely claiming certification as a Forensic Pathologist from the American Board of Pathology or a common tactic of equating having attained actual certification with being Board “eligible”), employment history and data about previous testimonies such as number of times, locations, etc. The last one can be difficult to verify as there are usually no central repositories of such information. Why do some forensic scientists deliberately falsify credentials? Most of the reasons are pretty obvious: to make an impression on a client or the court or jury, to ward off challenges to one’s opinions by inflating qualifications, to intimidate opposing counsel, etc. Because of limited resources and fact checking, the chances of getting caught is actually pretty low, so the risk–reward equation may favor the reward in many cases. Outside of providing additional resources for checking witnesses’ credentials, one other way of minimizing falsification of credentials would be to publicly and severely punish offenders as a deterrent.

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2.2  Laboratory Analytical Procedures Most forensic science laboratories commit their analytical procedures to writing, make sure that all tests are validated, and develop schemes for the analysis of various types of scientific evidence. In some laboratories, the forensic scientists are required to follow these schemes in all cases where appropriate. In other labs the scientists must choose from their available, validated tests, but they have personal leeway to perform whatever tests they deem needed in whatever order they choose. It is also true that many laboratories, especially those that are accredited, have some sort of administrative and/ or analytical review of casework. This can range from having a supervisor read every laboratory report and examine the data and documentation, to having other scientists verify the results of selected cases, to having duplicate analysis of cases by two different scientists. Ethical violations can occur when forensic scientists do not follow established procedures for the analysis of evidence. There are a number of ways that this is manifested. A scientist may perform insufficient testing to support the conclusions about the evidence. An analyst may do a set of preliminary examinations on evidence and then fail to perform the final, confirmatory test which provides the clinching data to support the conclusion. The opposite can also occur. An analyst, in order to save time, skips all of the preliminary tests and goes right to the confirmatory test even though this may give misleading results because the preliminary tests may have yielded data that the confirmation misses. Confidence is enhanced if two or more different methodologies yield the same result. An example of this is in drug cases, where doing only a GC-MS test without more general screening and separation tests may miss the presence of additional drugs. The “why” becomes important in such cases. Although the reason is often poor ethical practice, it may also be insufficient training or laziness. It is unethical to perform indiscriminate analysis of evidence whereby tests are done without a plan, and may involve over-testing the case, resulting in a waste of time and resources. Although there is little valid excuse for this, the question remains – “why?”. Often it is due to poor training, rather than ethics. One of the problems with this practice is that overkill can give the impression that the examiner really pulled out all of the stops in a specific case, whereas the reality was that there really was no plan and thus no knowledge of how to effectively put the tests together and make a proper interpretation. Sometimes forensic scientists are guilty of analyzing their evidence to meet the conditions of the law. This means that the potential data outcome is preselected – chosen or manipulated – to conform to one or more conditions of the applicable law(s) controlling that evidence, so that the results cause the evidence to fall into a specific category that might carry a higher penalty. There are a number of examples of this in the analysis of drugs, wherein the penalties for possession or distribution may depend upon the quantity present. If the quantity is very close to the amount that triggers

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a higher penalty, some drug chemists may shade the weight to get over the trigger point in order to permit charging the higher penalty offense. This can also cut the other way, where the chemist deliberately shades the weight down to prevent a higher charge from being filed. Both practices might be considered unethical – but if there is a rounding issue or a truncation of a result (for example in a DUI case, the blood alcohol might be reported as 0.07 gm/dL (truncation) or as 0.08 gm/dL (rounded up) based on the analytical result of 0.079 gm/dL when the legal threshold is 0.08 gm/dL). If such reporting modifications are employed, the best practice would be to provide all the data, the actual result, and what the manipulation was – when in doubt, always err on the side of caution and transparency. Perhaps the most extreme form of unethical practice in a forensic science laboratory is the practice of “dry-labbing”. This occurs when an analyst reports results without ever performing the analysis; or in some cases, without ever opening the container. In some cases, dry-labbing is done when the results are obvious – such as those cases where the evidence is a clear, plastic bag containing suspected marihuana. The look and smell is a good indication of the presence of marihuana, but dry-labbing could miss the presence of other drugs coating it or mixed in with it. This practice can never be accidental except in the instance of a gross mix up of cases, and is never a training issue. The existing examples of dry-labbing almost always end with an inculpatory result, favoring the prosecution. There are some indications that Fred Zain, the West Virginia criminalist who was alleged to have nearly always achieved inculpatory results, may have engaged in this practice (see for example: http://truthinjustice.org/expertslie.htm), and it would obviously take more than an administrative review of cases to uncover it. Reanalysis of evidence would obviously be most effective. In any case, regardless of the “how” or “why” this is always a serious ethical violation and it is inconceivable to construct a valid defense for willfully saying one performed a test that was never done.

2.3 Interpretation of Analytical Data and Presentation of Testimony in Court There are several types of ethical dilemmas that can play out in a courtroom when a forensic scientist is offering testimony. Many of these issues can be caused by inadequate training. Others are the result of mistakes, or not knowing better, or are caused by a desire by the examiner to appear more knowledgeable than he/she actually may be and still others could be due to malice on the part of the examiner. Subconscious or conscious bias may also be a factor. The major categories of ethical situations that fall into this category are given and explained below. In recent years, the idea that bias plays an important role in the analysis of any scientific evidence, particularly in forensic science has been reinforced. Only very recently has the forensic science community begun to recognize this and realize how destructive and critical bias can be in the crime laboratory. Two of the most serious types of

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bias that show up in the analysis of evidence are contextual and confirmational bias. The issues surrounding the concept of bias are present in a number of areas of forensic science practice. They not only affect the analysis of evidence, but its presentation in court, and how publicly employed and private practice forensic scientists are viewed by the public as well as by judges, juries, and attorneys. In recent years, there has been increasing recognition of the importance and insidious nature of bias in forensic science. Scientists in other fields have recognized the presence and nature of bias and take steps to minimize it. For example, the US Food and Drug Administration (FDA) traditionally has gone to great lengths in requirements for testing of new drugs, to mitigate the effects of bias. They require, for example, that when a company wants to test the effects of a new drug, a group of people who have the disease or ailment that is the target of the drug are selected and then put into two groups – one that will get the drug and one that will get a placebo. The tests are run blind: the subjects do not know which group they are in. Further, the tests are run double blind: the researchers who administer the drug and placebo do not know who is getting which one. The subjects are not biased by knowing what they are getting and their reactions thus reflect whether the drug is helping or not. The researchers, not knowing which they are administering, should not be able to give off subtle, subconscious clues to the subjects about whether they are getting the drug or a placebo and if the prescription is “working” or not. The whole issue of pharmaceutical ethics has been the source of keen interest due to the very large sums of money drug companies generate. Very strict guidelines have been adopted of late in order to try to prevent the marketing of various agents to supplant the very evidence-based medicine principles of identifying the most effective medicinal course of action for a specific disease. This includes limitations in gifts, honoraria, seminars, etc. and if providing full disclosure of potential real or perceived bias. In criminal investigations, bias is recognized as a problem with eyewitness identifications. The Innocence Project has identified eyewitness misidentification as a contributing cause of many erroneous convictions. A witness claiming to have seen someone leave the scene of a crime, and who is subsequently called upon to make a personal or photographic identification at a later time, should not be shown just the person believed to be the one seen at the crime scene. Instead the witness should be shown a number of similar looking people or photographs and then asked if any of them are the person seen. The photos should be shown in sequence instead of all at once to avoid the witness making a “comparative” evaluation of the photos (comparing them all in his/her mind to the memory of the person at the scene and selecting the one who most resembles the person he/she saw). By showing the photos in sequence, the witness is forced to evaluate each one on its own and make an independent evaluation for each one as to whether the person in the photograph could have been the person observed at the crime scene. These practices have been recommended by the National Institute of Justice (http://www.ncjrs.gov/pdffiles1/nij/178240.pdf ) and have been

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adopted by numerous law enforcement agencies over the past few years. This takes the witness’s focus off a specific suspect in the crime and helps to mitigate bias. In the forensic science laboratory, things are usually different. Consider a typical firearms, fingerprints, or questioned documents case. An examiner receives the evidence from the crime scene and a set of fingerprints or handwriting sample from a specific suspect or a gun specifically suspected of firing the fatal bullet. Focus in such instances is obviously directed to this suspect’s evidence because that is all that is available to work with. It can be exceedingly difficult to avoid bias in such a case. This is called contextual bias and is becoming recognized as a potential problem for the forensic science lab today. The theory is that, with limited individual items for a comparative base, the analyst might be swayed to make a confirmatory call because this item “fits” a limited number of questioned data – especially if this is all occurring at the local level, where the number of potential candidates is small. This has been reduced in recent years in areas of forensic science where there are large databases. Fingerprints would be an example. Sometimes a fingerprint analyst will receive a crime scene print or prints and then can search the IAFIS (Integrated Automated Fingerprint Identification System) database. This is a fingerprint database maintained by the FBI. A database search identifies the most similar prints in the collection with a ranking of the degree of association of each. The number of prints returned is user selectable. The analyst can then obtain the ten print cards from the best computer hits and compare the questioned crime scene prints to them. In such cases, hopefully the examiner is not focusing on any particular person as there should be no reason to do so, thus reducing the chances of contextual bias. Another way that contextual bias might be minimized is by limiting the case-specific information given to the analyst. In this scenario, a case agent receives the evidence and then parcels it out to relevant examiners. The case agent determines what information should be given to the scientist in order to most effectively analyze the evidence, and what information to withhold so as to minimize possibly contaminating the examiner with case- or suspect-specific information not needed for the analysis. Does the scientist need to know that in the past the suspect has been in prison for manufacturing methamphetamine in order to determine if this questioned sample is meth? A related remedy for contextual bias is called sequential unmasking. It has been suggested that this technique might be used in areas such as fingerprints, firearms, documents, and even DNA when the examiner is faced with a piece of unknown evidence and a single known. Rather than giving the examiner both at the same time, only the unknown is presented. This piece of evidence is thoroughly characterized and only then is the analyst given the known for analysis and comparison. After this, any changes made in the characterization of the unknown must be very limited and completely documented. Regardless, it should be obvious when and why any alterations were made. This practice, if properly executed, would ideally minimize potential bias problems inherent in the direct comparison of a known against an unknown.

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Another type of bias potentially occurs in forensic science labs that have a policy of verifying an examiner’s conclusions by having another examiner repeat the analysis. This can be an effective method of quality assurance, but can also be subject to confirmational bias. In many labs, the practice of verification involves turning over the evidence and the conclusions reached by the first examiner to a second one in the same laboratory. Thus the second examiner knows what conclusions the first examiner reached. This could arguably put a good deal of pressure on the second examiner. What happens if there is a disagreement? What if the two examiners are good friends? What if the first examiner is the supervisor of the second one or vice versa? Does the laboratory director give all of the results and conclusions reached by the first two to a third examiner? Then what? Does the majority rule? What fractional consensus best represents the actual true result and interpretation? Is it possible for a second (or third) examiner to objectively reanalyze evidence, while knowing what other examiners in the laboratory have already concluded? Even if a resolution is ultimately reached, should the fact that an initial disagreement be revealed to attorneys as potential Brady material? An example of this problem occurred during the investigation of the Madrid Bombing Case. The Spanish police in Madrid recovered a partial fingerprint from the scene of a terrorist bombing, photographed it and sent it to the FBI with a request to run it through their extensive fingerprint database. The Bureau found a suspect from the database search and began to focus upon him. Three examiners at the FBI reached the same wrong conclusion from the analysis of the crime scene print and the print from the database search. They all concluded that the print from the crime scene was a “match” with the print obtained from the database search. The second and third examiners knew the conclusions of the examiner(s) before them and confirmed the original impression. It was a classic case of confirmational bias. A remedy for confirmational bias is blind verification. In this process, subsequent referee examiners are given all of the evidence supplied to the initial examiner, but they are not given any hint of the conclusions reached. Special mention needs to be made of medical examiners and history. The practice of medicine is unlike other forensic disciplines, in that proper history-taking is an integral part of the practice of medicine – instilled from the very early days of medical school. An old adage is that a good physician historian can make 90% of their diagnoses based only on the patient’s story – as elicited through careful questioning. The history provides the context for a physician to interpret their physical medical findings. Consider, for example, a patient who died suddenly with an enlarged heart and severe (70%) blockage of the three major coronary arteries. The initial gross impression in the absence of history might be that the victim sustained a heart attack. If there were no history to suggest a need for additional testing, then toxicology might not be ordered – the cause of death was “obvious” so there was no need to expend limited resources. If that blood work subsequently came back with a concentration

General Forensic Ethical Dilemmas

of methadone well within the lethal range, the response might be to now call the death an accidental overdose, since methadone is commonly used by addicts and/or in chronic pain patients. Of course, since chronic opioid-takers become tolerant to the drugs taken over time, what is lethal for a novice might be sub-therapeutic for a drug-tolerant, habituated user. Without a specific drug history, the question is unanswerable. If the history was elicited that the victim was in agony from chronic pain, and suffered terrible bouts of depression with suicidal ideation, then suicide becomes a real consideration. Finally, if the additional history were to indicate that the patient had been switched off methadone years ago due to an allergy, and that the victim’s spouse was aware of this allergy and decided to give the victim an overdose to induce an anaphylactic reaction, causing the patient to die, then the cause of death would become poisoning with the manner of death as homicide. The mechanism of how the cause of death manifested itself to cause death might well involve anaphylaxis, however, without this immediate history at autopsy and immediate appropriate sample collection and handling, this piece of information would be forever lost. In short, adequate, timely manner is essential to the forensic pathologist in order to properly practice their medical specialty. Through years of training, physicians are taught the dangers of over- and under-reliance on history and the dangers of bias inherent in the process. Forensic science has been plagued for many years by the imprecise use of terms, especially those used to describe the association of crime scene evidence (“questioned”) with evidence whose source is known (“known”). These terms include, but are not limited to: individualize (or individual or individualization), consistent with, similar to, could not be distinguished from, cannot be excluded, and the most commonly used match. The problem here is that forensic scientists don’t agree on a single specific meaning of these terms. Some scientists see most of them as meaning the same thing, and they might be right to a certain extent. Others see shades of difference between all of them. In court, where words and communication are vital, the difference may be paramount. Further, members of a jury or a judge may, consciously or subconsciously, impart a different meaning to a term used by an expert witness, especially if the analyst doesn’t make it very clear what their intended meaning is supposed to be. Some terms could have different meanings in a scientific context to those they have in everyday usage. Whatever term is used should be explained beyond the mere term itself, so that the actual conclusion can be given some context, and the jury is given adequate information with which to impart the appropriate amount of weight to the information. An often misinterpreted term that is used to associate known and unknown evidence is “match”. If two objects, such as two bullets, documents or fingerprints match, it means that they are similar in all respects. That is, these two items are one and the same or identical. A juror who hears the conclusion that two bullets match will probably conclude that they were fired from the same weapon. If two samples of handwriting match, the interpretation is that the same person wrote them. This is a common,

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everyday meaning of the term and is also probably what most forensic scientists often mean by “match”. To the scientist, it could be argued to be the functional equivalent of individualize, which means to put an object into a class of one; it is absolutely unique or has unique characteristics. Two objects which have been individualized are one and the same and share a common source: the same weapon, the same finger, the same shoe, etc. Lacking any further explanation, a juror likely could conclude that two such objects must have a common source and there is no chance that they could have arisen from different sources. Leaving aside the question of whether it is scientifically defensible to reach such a conclusion of individuality, should a forensic scientist use these terms knowing there is a reasonable probability that a juror will interpret the meaning as an absolute association, even if that interpretation is not scientifically warranted? It is incumbent upon the forensic scientist to clearly define potentially unclear, ambiguous, and/or misleading terms of association including their limitations, and, to the extent possible, use definitions which are scientifically proper and commonly accepted by the forensic science community. Another serious ethical problem in forensic science labs is how laboratory reports are written. The laboratory report is the face of the laboratory in a courtroom, in the absence or even in the presence of the expert witness. It memorializes the tests and results of a forensic analysis. Many forensic science laboratory reports do not represent good scientific practice, and in fact can provide fuel for those who criticize forensic science for its lack of science. What’s more, writing improper laboratory reports is arguably unethical. What is a proper scientific laboratory report? The answer is complex. The length and breadth of a scientific report depends somewhat on its context. Some reports are written to explain and provide data for long-term research projects such as a major study or thesis. They can be voluminous and include hundreds or thousands of pages of data. Many scientific reports are the result of some type of analytical testing of a material to determine what it is or how much of it there is, or what effects it has on people, animals, objects, the environment, etc. Forensic science laboratory reports often fall into this category. They involve the analysis of one or more pieces of evidence to determine what it is, how much of it there is, and what association it may have with other pieces of evidence, or a crime scene or other location or person. Analytical laboratory reports involve personal observation, collection of data by performing physical, chemical and/or biological tests, interpretation of the data and results and the conclusions, if any, which can be reached about the evidence, its characteristics and relation to other evidence or a crime scene. Although analytical laboratory reports may differ in length, breadth or scope, they all have, or should have, several common features: 1. There is some type of introduction that includes a description of what is being tested and sets out what tests are done and why. 2. A section that describes in detail what tests were run, what methods were used to collect data and what materials were used in the testing.

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3. Results of the tests, including actual copies or a physical location to access any charts graphs, photographs, and descriptions of the data collected (where applicable). 4. Interpretation of the data and conclusions reached. 5. Limitations to the tests and to the interpretation of the data, and qualifiers on the conclusions. This might include statistical probabilities of events or associations, rates of error of each technique and other qualifiers. The purpose of this report is to describe fully what was done on what, how it was done, what can be derived from the testing and any limitations from the testing. It should stand on its own so that another scientist with the necessary experience and skill set should be able independently to fully understand what was done and be able to replicate those results if necessary. Unfortunately in the past, many, if not most, forensic science laboratory reports have not met these standards and some have not even come close. Some forensic science laboratory reports would be better described as a certificate of analysis. Consider an all too common report from a forensic science laboratory on the routine analysis of a bag of suspected marihuana. This report reads as follows (in its entirety): Received: Item #1: A sealed plastic zip lock bag containing 24.8 g of green-brown plant material. Results: The green-brown plant material in item #1 was identified as marihuana, a Schedule I controlled substance.

This report clearly does not meet a satisfactory definition of a scientific laboratory report, since it lacks most of the elements articulated earlier. It might be more properly classified as a summary opinion, but for forensic scientific purposes it is insufficient in isolation as it should reference all the supporting documentary data described. From this description, it is not possible to determine what tests were done, what the results of each test were and any limitations to the tests (all scientific tests have limitations). Yet, in many jurisdictions such a report is admissible as “evidence of the facts therein”, and it is not necessary for the scientist who did the testing to be in court, especially if there is a stipulation by both parties to the case. Even if the scientist is in court, it is difficult to conduct a direct or cross-examination with so little information to question. It provides no guidance about the testing and the results. This forces the cross-examiner to blindly go fishing for information. Why would a forensic science laboratory use this type of abbreviated format for a report? There might be a number of reasons. First, it must be remembered that forensic science laboratories arose originally from law enforcement seeking answers (typically from university professors) to scientific questions. When this function became more widely used, the function migrated directly into the law enforcement agency, removing the science from the purported intellectual independence of higher education. There was limited scientific culture when these labs formed. Second, the intended principal

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audience for forensic science reports is not other scientists, but the criminal justice system. The main readers of forensic science laboratory reports are attorneys and judges (and sometimes jurors), who generally don’t understand the science and only need or want to know the results and conclusions. Third, some forensic scientists complain that giving attorneys all of this information would just encourage fishing expeditions in court, where all manner of irrelevant and nuisance questions might be asked. Others question whether such laboratory reporting practices amount to an ethical issue. The answer is that ultimately it could be a question of ethics. By not revealing the limitations, errors, uncertainties and weaknesses in a scheme of analysis of evidence, it might be argued that the scientist is implying that there are no issues and no uncertainty in his/her analysis. When a scientist performs a scientific analysis, all of the data and relevant information should be readily available for independent analysis, but do not necessarily have to be presented, even if the audience may not understand all of it. The isolated abbreviated report such as the one given above, could be viewed as a sort of “executive summary”, so that the reader can see the information needed in order to proceed. For the good of forensic science, all the information should be available, especially in court proceedings, with copies of the supporting data made prior to trial. If a forensic scientist wants to be biased in their presentation of scientific testimony in a courtroom, there are plenty of ways to accomplish it. Deceptive or confusing testimony, failing to take a scientifically indicated stand, outright lies, overselling and/or underselling evidence, equating the possible with the probable or reasonably scientifically certain are all ways that an expert witness can slant his/her testimony to favor one side of a dispute. Confirmational and contextual biases were discussed above as ethical issues in the analysis of evidence. There are also potential problems with bias in testimony in court. If a scientist is biased towards one side or the other in a criminal or civil trial, there are many ways that this can be expressed during testimony. For example, the forensic expert can take advantage of the fact that attorneys seldom know much about science and, as a result, do not know when they are being lied to or mislead. Many questions asked of scientists in a judicial proceeding by unknowledgeable attorneys can be interpreted a number of ways. The witness may choose to give a literal, direct answer to the question, but one that is misleading because it is not complete and doesn’t tell the whole story. In some cases – on both sides of a matter – this might be exactly counsel’s desire. The ethics inherent in such a tactic could be challenged. The judge and jury might be left with an impression that serves only one side of the proceeding but is not the whole scientific truth. The same result can follow if the witness uses scientific terms that the jury doesn’t comprehend, or gives confusing or deceptive answers to questions that could be much better explained. There are times when an expert witness is asked for a learned opinion about a matter clearly within their expertise but they deliberately refuse to take a position on the issue, instead obfuscating it by claiming that a definitive answer cannot be scientifically defended.

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Of course, the opposite happens too. Scientists will sometimes blithely deliver a definite opinion that has insufficient scientific support. It has been said that evidence should never be oversold, but should always be given its due. This means that a forensic scientist is obliged to properly state the association of known and unknown evidence and should never ascribe a degree of association that cannot be scientifically supported. For example, in the morphological comparison of known and unknown fibers, it is proper to state that the unknown and known could have arisen from the same garment if the presence of common characteristics warrants it. It is not proper to conclude that the unknown and known fibers came from the same garment to the exclusion of all others except in the unlikely event that the data clearly and compellingly supports such a conclusion of individuality. On the other hand, if there are a sufficient number of common characteristics and if there are no significant, unexplainable differences, then it would be improper and unethical for the forensic scientist to testify that no association could be made or that the results are inconclusive. The question becomes how strongly to state the association. This “underselling” of the evidence is just as harmful as overselling it. Evidence should be analyzed and testimony offered based upon the data. The story of the evidence should be told without regard to which side might benefit from it. It is the nature of the adversarial system that the results of a forensic science analysis will generally favor the position of one side or the other. That doesn’t give the scientist license to put a spin on the report or testimony and deliberately make the conclusions fit the interests of one side of the case. That is unethical.

2.4  Ethics and the Privately Employed Forensic Scientist The vast majority of forensic scientists in the United States are employed by public forensic science laboratories. These laboratories are funded by local, state or federal government. With few exceptions, they provide services to the populace through police departments and other law enforcement agencies within their jurisdiction without charge. Ideally, the crime laboratory is operationally independent and neutral so that the outcome of analyses is the unshaded scientific fact. This is often “spun” in the courtroom by defense counsel who insinuates or openly argues that the co-location of a scientific lab in a law enforcement agency means that the scientific testing conducted therein is biased. This of course conveniently ignores the many occasions when the results of the forensic analyses may support the defense’s theory of the case, or fail to provide support that a crime has even occurred. Complete iteration of the truth would demand this fact not be ignored to suit one side’s purposes. In some jurisdictions, crime labs are not, by policy, permitted to provide forensic science laboratory services to criminal defendants or civil litigants (defendants or plaintiffs), even if the customer can pay. Obviously, this could be used to argue bias on the part of the laboratory and/or the agency. Such an arrangement may also leave little alternative for parties

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who wish to have access to forensic science services but are closed off from the public laboratories. Traditionally, there have been few laboratories that do private work, but in recent years, the number and types of private laboratories offering their services in criminal and/or civil cases have increased markedly, although their number is still dwarfed by the number of public labs. There are many types of private forensic science laboratories. For example some independent and privately held laboratories provide services to law enforcement agencies. There are also a number of forensic science labs located within colleges and universities. The scientists employed there are usually full-time or adjunct professors employed by the university, often within a forensic science degree program. These people are free to consult with criminal defendants or either party in a civil case. This might be tricky if the professor works for a public or even private university, especially if funded by the same governmental entity that funds the local public crime laboratory. Therefore, a charge that simple location of a forensic scientist within such a teaching environment somehow inherently protects the analyst from bias is clearly flawed. To take it further, consider the example of a medical examiner employed by the very same hospital whose trauma center unsuccessfully treated a gunshot wound victim. It could be argued that the employing medical center has an interest in determining that no medical malpractice occurred in the procedures; clearly their risk management department and the trauma team would have a vested interest in the autopsy findings – which is why they often get copies of the autopsy report. Nonetheless, such university people often can and do work for defendants in criminal cases or parties in civil cases and often charge for their services. If a criminal defendant cannot afford to pay for laboratory services, a court will often permit the use of a private laboratory with the services paid for with public money. The amount of money appropriated for these services is often less than the privately employed forensic scientist usually receives for his/her services. Another source of private laboratory expertise lies in companies who do both forensic work and other types of scientific analysis. Often there is not enough forensic work to support a company, so it does other scientific work to pay the bills. There are a few engineering companies that do environmental or military or civil engineering work and will also take on forensic cases such as traffic accident reconstruction, materials analysis, product liability, or failure analysis. Some of these companies can be quite large and diversified. This model is also seen in toxicology laboratories where environmental, analytical, clinical medical, and forensic cases are all performed. In recent years, a few large clinical/medical/forensic biology labs have opened. They take on not only criminal defense and civil work, but also will do cold cases and backlog reduction cases for public laboratories. If the public laboratory is accredited by the American Society of Crime Laboratory Directors (ASCLD), the private laboratory must also have this accreditation in order to accept cases from the accredited public laboratory.

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If the original public laboratory is accredited, in order to perform work for the lab as a subcontractor, the private laboratory would need to be accredited as well. Although the number of larger private forensic science labs is increasing, the majority are small. Many of them consist of a single examiner who has retired from a public laboratory. These labs are highly specialized and centered on the skills of the owner. Many of them are engaged primarily in civil casework. Of course these private examiners are subject to most of the same types of ethical dilemma that have already been explained above. In addition, however, they also face ethical situations by virtue of their status as private examiners. Contextual and confirmational bias, for example, would be an obvious and perhaps insurmountable issue – a consultant obviously would know who hired them. One of the problems that occurs is payment for services. In many types of civil cases, the attorneys working for the plaintiff in a lawsuit often have a contingency fee arrangement with their client. This means that the attorneys collect a percentage, often 33–50% of what their client receives, in a favorable judgment. If their client loses the case and gets nothing, the attorneys also get nothing. In many cases, this type of arrangement is the only way that a plaintiff of modest means can get a case into court – the costs are just too high otherwise (even a modestly complex litigation can quickly reach one or two hundred thousand dollars in expenses). In cases where a private expert witness is needed, there might be a temptation or pressure for a similar remuneration arrangement – a contingency fee because of the financial condition of the client, or more commonly the bankrolling attorney. This type of arrangement is fraught with problems. It exposes the scientist to more obvious charges of bias in the analysis of the plaintiff ’s evidence so as to maximize the chances of a favorable verdict and a larger payoff. Experts in these situations could easily be tarred and feathered as being “hired guns” being paid to reach conclusions favorable to the client: plaintiff or defendant. The contingency fee arrangement puts the scientist in a position of having a stake in the outcome of the case – exactly where a true scientist should never be. Experts who make a career out of working only for plaintiffs or only for defendants get pigeonholed as a one-sided expert, adding to the perception or reality of bias. The bottom line is that forensic scientists should NEVER work on a contingency fee basis. Fees should be explicitly negotiated upfront on a per case or hourly basis regardless of how a case might turn out. As some might not desire to pay what could be a significant forensic expert fee after a losing effort, it never hurts to ensure compliance by securing a projected fee on the front end. Even in these negotiated fee arrangements, scientists may be offered a bonus if the judgment for the client is larger than expected and there is a perception or reality that the expert’s analysis and/or testimony helped this result to occur. This would also be unethical for the same reasons. The irony of working as a private forensic science consultant is that such people are badly needed in a justice system where a criminal defendant often might have limited access to the public laboratory facilities available to the government. There are few

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enough forensic scientists who are willing, able and skilled enough to provide scientific services. Because many defendants are indigent, any pay that the scientist receives is likely to be inadequate to make ends meet and these people often support themselves by civil work, where they are type cast as experts “for” one side or the other and thus are painted as being biased, just as those who work in a governmental lab might be unfairly portrayed as “shills for the state” or worse. There is another type of private scientific consultant. These are forensic scientists who work for a public laboratory but who are permitted to take on civil cases or sometimes even criminal cases for the defense, if the latter occurred out of state or otherwise out of their governmental jurisdiction. Such scientists may be immune to charges that they only work for the state, but they are subject to other perceptions and realities of bias. In some cases, these scientists may be regarded as hired guns to a greater extent than those who make their entire living in the private sector. Some questioned document examiners, for example, can make more money doing private civil cases than they earn in their role in the public laboratory. It is very tempting to take advantage of this opportunity. This raises the question of public service versus self-gratification. Clearly the state cannot afford to pay experts at the same rate as private practitioners can. In the private practice of forensics, the scientist is running a business and in a capitalistic society has the ability to charge whatever the market will bear. After all, the consulting expert has the liability and expenses of the office, in addition to overhead, vacation, retirement, healthcare, etc. that the state assumes for its employees.

2.5  Ethics and the Publicly Employed Forensic Scientist Given the ethical issues for private practice forensic scientists, one would think that those who toil for federal, state or local government would be free of such problems, but that is not the case. There is a set of ethical issues that arise because of the status of the publicly employed forensic scientist. First it must be noted that the majority of public forensic science laboratories are located administratively within law enforcement agencies such as police departments, sheriff ’s departments or even prosecutor’s offices. This can give rise to a perception that the forensic science laboratory is part of the agency’s team – they are out to identify and prosecute the bad guys just as the criminal investigators and prosecutors are. Forensic scientists in this situation are not generally perceived as impartial objective scientists who analyze evidence and report their conclusions without regard to which side, prosecution or defense, that ultimately benefits from the results. The fact is that most forensic scientists perceive themselves as objective scientists and behave accordingly. It is, of course, to the defense attorney’s advantage to paint them as part of a prosecution “team”. As a result, they ask government forensic scientists questions like: “Who signs your paycheck?” and “Have you ever testified in court on behalf of the

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defense in a criminal case?” and “Are you being paid by the government to testify here today?” These attorneys want the jury to believe that the forensic scientists are just part of the prosecution team and are thus biased against their client. They want to convey the impression that a publicly employed forensic scientist can and will be disciplined or even fired if he/she arrives at conclusions that favor the defendant. This entire line of thought again ignores all those cases that never come to an arrest, let alone grand jury indictment or adjudication because the forensic analyst documents no scientific basis to support a government’s case or that no crime even occurred – a fact conveniently omitted when the agenda is to slant sentiment against the practitioner. The reader can determine where potential ethical issues might be more likely. A real potential danger for the scientist is to become mired in ill-will because someone has the audacity to misrepresent real neutrality as a legal strategy. Anger can easily become a poison to objectivity. The reality is that as a truly objective scientist, the expert has no “side” and does not work for either party in a litigation but for the people of the state as represented by the “jury of peers” in both civil and criminal matters by objectively finding and testifying fully to scientific facts. Sometimes a government forensic scientist will be subject to covert or overt pressure from criminal investigators and zealous prosecutors to describe their conclusions in such a way that favors the prosecution. Using the fiber comparison described earlier in this chapter: the best that an honest fiber examiner can say is that an unknown fiber and a known fiber could have arisen from the same garment and further that there is not enough information available to put this association on any sort of probabilistic basis. This is giving the evidence its due. A scientist discussing this with the prosecutor before giving testimony, might be pressured into rewording the conclusion to state that it is “highly likely” or “more probable than not” or that an unknown fiber “came from the known garment” without a scientific basis and documentation. This shading would be unethical. Unfortunately, the pressure can be quite intense on the scientist to bend things in a “guided” direction, which unfairly favors one side in a matter before the court. Pressure might come from investigators also. They will sometimes be embroiled in a serious crime or serial crimes and will be strongly focusing on a particular suspect. All they need is a little more scientific evidence to “get this guy off the streets so he won’t harm any more (children, defenseless women, poor people, etc.)”. The implication is that they want the forensic scientist to link the evidence to a specific suspect and “tighten the noose”. When a forensic scientist sees a steady diet of the carnage that is visited upon the unfortunate or defenseless populace, the individual’s natural inclination is to want to help. But it is unethical to bend or twist science so that it becomes biased towards one side of a case, even if the cause seems noble and even if the practitioner will be seen as a hero for developing the critical evidence that “convicted” the bad guy. A scientist never convicts anyone. The evidence provided may be used for that purpose, but the ethical forensic practitioner must remain above the fray. The ends do

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not justify the means – becoming the very evil one is trying to fight does irreparable harm on numerous levels.

2.6 Obligations to the Profession of Forensic Science and Maintenance of Professional Skills The final set of ethical dilemmas faced by forensic scientists considered here applies to all practitioners. These are ethical requirements that transcend the type(s) of analyses a scientist conducts, public/private laboratory employment, large/small practice, etc. All forensic scientists, indeed all scientists of any type, have the obligation to develop and then maintain professional skills at the highest level. This is a continuing process. It starts with initial training and education and continues throughout one’s professional life. As long as a forensic scientist is engaged in the analysis of evidence and its presentation in court and/or research in the field, there is the concomitant ethical burden of remaining current in the field. Ethical dilemmas fall into three categories in this area: 1. Failure to keep up with latest developments 2. Improper use of proficiency tests 3. Improper continuing education practices It cannot be overstated that the laboratory that employs a forensic scientist has the ethical burden of providing opportunities for all of its scientists to keep current in their field and, to the extent that laboratory personnel supervise proficiency testing and facilitate continuing education, they must make sure that these are done honestly and properly. Maintaining currency in forensic science should thus be a partnership between the scientist and the laboratory. In addition, most laboratory accreditation criteria should and do require that scientists be given opportunities to maintain currency in the field. Increasingly, certification schemes also require that the scientists undergo periodic proficiency testing and continuing education. It is ultimately the individual scientist’s responsibility to accomplish these things competently and with seriousness of purpose. There are a number of ways that a forensic scientist can remain up to date with the field of forensic science in general and his/her specific areas of expertise in particular. Attendance at national meetings (e.g. AAFS, NAME, etc.) and/or regional associations (e.g. MAFS, CAC, etc.) is relatively easy. Usually the agenda includes many papers, posters, and formal/informal sessions discussing the latest advancements, research and techniques in various scientific and evidentiary areas. These meetings also usually have a number of workshops in particular, focused areas and often cover new developments and cutting-edge research. Some regional organizations offer a series of workshops by themselves between annual meetings. The scientist may have to pay for the individual workshops and travel, but expenses are at a minimum since there is no formal underlying meeting to pay for, rather the attendee pays only for the needed training.

General Forensic Ethical Dilemmas

The two major impediments to taking advantage of these opportunities are 1) cost and 2) leave time. Many (especially) public forensic science laboratories do not have the funds to pay for travel or attendance at professional meetings. In lean economic times, one of the first (and too often consistently) areas parsed is training with the justification that the system “will catch up” on the training when things get better – remarkably, the latter seldom occurs. It may generally be easier to get some funding if a scientist is involved in the administration of the organization or is presenting at a meeting. In addition, heavy case loads and/or a lack of appreciation by crime laboratory management or more typically non-laboratory overall agency administration for the need to attend such meetings to remain current, often mean that scientists will not be granted time off from work to attend a meeting, even if they are willing to self-fund their attendance. This is an example of where the cooperation and commitment of the laboratory management is so critical for helping scientists stay current. A culture embracing the furtherance of knowledge for the sake of improving the science and thus enhancing service delivery to the populace served ultimately benefits the agency by better testing, enhanced reputation, increased public confidence, and laboratory staff morale. A less satisfactory (on many levels), but usually cheaper method of keeping up with the latest developments in forensic science is to subscribe to and read forensic science and related scientific journals. Some come free with membership of certain organizations. Sometimes larger university libraries, especially those connected to a university or college with a forensic science program will have subscriptions to some of these journals. Some larger public and private forensic science laboratories also maintain some subscriptions. The major journals in the field are: Academic Forensic Pathology American Journal of Forensic Medicine and Pathology Forensic Science International Forensic Science Policy and Management Forensic Science Reviews Journal of Forensic Identification (International Association for Identification) Journal of Forensic Sciences (American Academy of Forensic Sciences, US) Science and Justice (Forensic Science Society, UK) There are also journals in specialty areas such as the Association of Firearms and Tool Marks Journal. In addition, the number of books in forensic science has exploded in recent years. There are many general forensic science books that range from introductory to practitioner level. There are many books on virtually every significant area of forensic science, also at varying levels of difficulty, beginning literally with Forensics for Dummies (D.P. Lyle, John Wiley & Sons, 2004), and extending all the way to eclectic post-doctoral treatises. Of course, the major difficulties with taking the reading approach to maintaining current knowledge in one’s field is the cost. Again, some larger, more enlightened labs have libraries in-house that range from the rudimentary

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to the sophisticated. Some of their holdings are donated by scientists in the laboratory, although these may be out-of-date editions of the books. Increasingly, the internet is a source of written resources that are generally free or very inexpensive. There are a large and increasing number of web resources for forensic scientists. The caveat here is that one must be mindful of the source(s) of much of this information. Although often helpful in providing general overviews of topics, these sites can hardly be considered “authoritative” sources. Another, more ambitious way of being up to date is through programs at universities. These can range from entire advanced degrees to single short courses offered in person or increasingly, online. Cost, quality and time are all issues with these programs. Clearly, there are a huge number of opportunities to keep current in forensic science and they are increasing every day. Issues of cost and time have been and will continue to be major obstacles. The second type of activity that has ethical issues is proficiency testing. Proficiency testing has been around in forensic science since at least the 1970s. Its goal is to determine if an analyst is competent in the routine examination of the type(s) of evidence for which they have been trained. It is a requirement of most accreditation schemes for forensic science laboratories and certification processes for forensic scientists. To best meet the intended purposes, proficiency testing should have the following characteristics: 1. It should be blind. The analyst should not know that it is a test. It should be indistinguishable from any other case received. Preferably, it should also be double blind. The laboratory supervisors should also not be aware that it is a test. 2. It should mimic typical casework. That is, it should be representative of the type case the forensic scientist normally receives. The scientist should be able to complete the test using the methods, materials, and instrumentation that are routinely used in the laboratory in such cases. Throughout its 30 plus year history in the US, forensic proficiency testing has been plagued by charges of unethical practices. These include a lack of participant blindness. The analysts and laboratory management know that the case is a proficiency test. In fairness, this is often due to the difficulties and cost of having the test masquerade as a real case, which requires the cooperation of a law enforcement agency and could be cumbersome. However, if the laboratory personnel know that it is a proficiency test, there might be a strong temptation to treat it as something special. The analyst might be tempted to put in extra effort to make sure that the case is done correctly in order to “pass the test”. The entire staff of scientists working in the area being proficiency tested might stop what they are doing and work on the test. The result is that the intended analysis of proficiency in routine casework is not being measured. The results are often correct in a higher percentage of the time than real cases. Little is learned about the day-to-day competency of the individual laboratory scientists. Of course if the intent is a blinded measurement of proficiency, such behavior is unethical, but if

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the practice carries the blessing of laboratory management, who want to put their laboratory in the best light, it might proceed. Some might not be aware that proficiency test results are discoverable by defense attorneys who can use incorrect results in such cases to attack the casework competency of the laboratory scientists. The third type of behavior that could lead to ethical problems in maintaining currency in forensic science practice is in continuing education. Often a certification or continued employment will require that the employee collect a certain number of continuing education credits. There are many ways of amassing these, including the ones already mentioned above in the discussion of keeping current with the latest developments. Continuing education includes but is not limited to: Attending professional meetings Taking short (or long) courses in one’s field Participating in professional workshops Where do the ethical problems lie? It is one thing to attend a professional meeting and take part in it by attending workshops, and reading papers and posters. It is quite another to register for the meeting and then play golf every day. One can sign up for a short course and then do the minimum amount of work and achieve the minimum passing grade (assuming there is grading). Some workshops don’t have any type of attendee evaluation (grading) system. In continuing education, it is surely true that one gets out of it what one puts into it. It is also true that there is generally less “policing” of continuing education practices than there is of other behaviors. It is ripe for ethical problems that might easily go undetected.

3.  SUMMARY This chapter has covered the major areas of general forensic science practice where scientists can and do commit ethical violations. These range from the nearly inconsequential to the very serious. No forensic scientist is immune from these situations. Many of these are under the direct control of the scientist, whereas others require the cooperation of employers and still others are a consequence of the adversarial legal system in which forensic scientists must function in the US. There are many rules, guidelines, policies and safeguards that are built into the system to help minimize ethical problems, but it really all boils down to the integrity and honesty of each individual forensic scientist.

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