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- Witness Testimony
There are many examiners in the Digital Forensic community who are not aware that professional codes of conduct and codes of ethical practices need to be an inherent part of every examination. This is especially important since it is a common practice to only examine the digital media for specific information requested by the investigator. For instance, an investigator may direct the examiner to search for child pornography on a subject’s computer. The resulting report might state that ten pictures were found. However, there needs to be a further explanation given by the examiner as to how the pictures got onto the subject’s computer. A thorough forensic examination may conclude that no conclusive determination can be made. This would be analogous to a “neither/nor” result.
To gain a better understanding of the importance of ethics and ethical practices in Digital Forensics, we need to digress somewhat and discuss “neither/nor” results in the context of what can occur in a comparison discipline such as Firearms:
A subject is holding a victim hostage. The victim is subsequently shot and killed at the scene. Investigators indicate two eyewitnesses saw the subject shoot the victim. Both police officers and the subject fired their .40 caliber weapons at each other. All three polygonally rifled weapons are submitted to the police agency’s forensic laboratory to determine which weapon fired the projectile that killed the victim.
Polygonally rifled firearms generally leave poor or insufficient individual characteristics on fired projectiles. This can give rise to a difficult examination. Depending upon the results reported by the Firearms examiner, there are several potential conclusions to the scenario.
Conclusion 1: The projectile was fired by the subject’s weapon. This corroborates the eyewitnesses’ statements and the prosecutor charges the subject with homicide.
Conclusion 2: The projectile was fired by one of the two officers’ weapons. This contradicts the eyewitnesses’ statements. Although the subject is not charged with homicide, a different set of issues will have to be addressed (officer negligence, civil liabilities, etc.).
Conclusion 3: The examiner reports that the projectile could “neither be identified nor eliminated” as having been fired any of the three weapons.
One of the theories behind physical evidence is that it cannot lie, does not take sides, and can only be misinterpreted or misrepresented. The results in Conclusion 3 (which are very common) may present a dilemma since they can be interpreted to the advantage of the defense or prosecution. Therefore, at the time of trial, what are the moral, professional, and ethical responsibilities of the examiner? He has to carefully present testimony in an impartial manner and not choose to slant the testimony to favor anyone. However, this maybe easier said than done. In the scenario, the examiner, who is employed by the police agency, will be providing “expert” opinion testimony. Will the court or jury really know if that testimony is slanted one way or another?
In shooting situations such as this, it would not be surprising for the defense to hire another examiner to reexamine the fired projectiles. What would be the legal, moral, professional, and ethical responsibilities of the second examiner should a different conclusion be determined? Certainly, he or she will report the results to the defense counsel. However, should the second examiner also notify the prosecutor and the first examiner? Would doing so violate any attorney/client privileges? Going one-step further, should the defense counsel notify the prosecutor? This scenario is not uncommon and holds the potential for legal, professional, and ethical conflicts involving both of the examiners and the defense counsel. Presuming that the conflicting testimony is presented in court, ultimately the jury would have to decide the weight given to the each examiner’s testimony.
In the scenario, the first examiner only compared the test fired projectiles to the one that killed the victim. The victim’s clothing was not submitted for examination. However, nothing prevented the first examiner from requesting the clothing for gunshot residue examination and distance determination testing. Since this was not done, no scientific conclusion can be made as to whether the victim was shot at close or long range. Knowing that answer could have helped determine who actually shot the victim. However, the additional examination and testing can be a difficult and lengthy process. The first examiner may have been under additional time constraints to examine evidence in other homicides or he may have been reluctant to do the testing since there could have been an issue with his competency and/or skill level. The fact that the victim’s clothing was not examined by the first examiner will certainly be a point of contention during his cross-examination. Regardless, in spite of increasing case backlogs, the amount of evidence to be examined, court commitments, speedy trial considerations, and the like, it is the moral, professional, and ethical responsibility of every examiner to perform whatever work is necessary to try to resolve the issue at hand.
CODES OF PROFESSIONAL CONDUCT AND CODES OF ETHICAL PRACTICES
Ultimately, the examiner is responsible for his or her results. Through education, training, and experience, he or she develops and enhances individual technical knowledge, skills, and abilities. This maturation process needs to include adherence to an overriding code of professional conduct or a code of ethical practices. Doing so will provide guidance and direction to the examiner when confronted with moral, professional, or ethical dilemmas. Rightly or wrongly, morals, codes of professional conduct, conduct, and codes of ethical practices are intertwined. After reviewing the definitions of “code,” “conduct,” “ethics,” and “moral,” it is easy to understand why (see Webster’s New Collegiate Dictionary). Generally, all codes consist of arbitrarily agreed-upon rules that attempt to define appropriate behavior. This leads to many commonalities between the different codes. As one would expect, many professional forensic organizations have published codes for their members to follow. They include the:
- American Academy of Psychiatry and the Law Ethical Guidelines for the Practice of Forensic Psychiatry
- American Board of Criminalistics
- American College of Forensic Examiners International Principles of Professional Practice
- American Society of Crime Laboratory Directors
- American Society of Questioned Document Examiners
- Association of Firearm and Tool Mark Examiners
- Association of Forensic DNA Analysts and Administrators
- Australian and New Zealand Forensic Science Society
- Canadian Society of Forensic Science
- Code of Conduct of the Forensic Science Society, UK
- Code of Ethics of the California Association of Criminalists
- Forensic Toxicologist Certification Board, Inc.
- International Association for Identification Bloodstain Pattern Examiners
- Mid-Atlantic Association of Forensic Scientists
- Midwestern Association of Forensic Scientists
- Northeastern Association of Forensic Scientists
Having a code in place does not guarantee that all examiners will adhere to its system of principles or rules. However, a code does provide the necessary tools to address moral, professional, and ethical issues for the practitioners. It is a fact that not every forensic examiner is a member of a forensic organization. Furthermore, in the Digital Forensics community, many of the examiners work in singular discipline units in law enforcement agencies. Many of those agencies do have core values. Nevertheless, those should not be construed as being a code of professional conduct or code of ethical practices for a forensic examiner.
(The previous scenario is not indigenous to the comparative disciplines. There are similar counterparts that are encountered every day in the Digital Forensics discipline. These will be discussed in the next column).
John J. Barbara is a Crime Laboratory Analyst Supervisor with the Florida Department of Law Enforcement (FDLE) in Tampa, FL. An ASCLD/LAB inspector since 1993, John has conducted inspections in several forensic disciplines including Digital Evidence. John is the General Editor for the “Handbook ofDigital & Multimedia Evidence” published by Humana Press.