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Ethical Practices in Forensics

Sun, 06/01/2008 - 4:00am
John J. Barbara

A recent headline in the news: “Crime laboratory manager resigns; two others resign after accusations of cheating on a proficiency exam.” This incident will probably have far ranging consequences in the forensic community. It also raises some very difficult questions that will have to be addressed by the agency, the examiners, subjects and victims, prosecutors, and the court. For instance, did they violate the laboratory’s code of professional conduct or code of ethical practices? What is the creditability of the two examiners who resigned? Can the results of any previous examinations that he or she previously conducted be relied upon? What about his or her previous testimony which may have resulted in a conviction? This incident reflects negatively upon all forensic examiners in all disciplines.

In today’s world, investigators, prosecutors, defense counsels, the court, and even the subjects themselves, rely upon the results of forensic examinations to make important and potential life-altering decisions. Quite often, the examination results will determine whether a subject will plead guilty to the initial charge or attempt to plea-bargain for a lesser charge. If the results are presented in court, the judge and jury will rely upon the expert opinion testimony of the examiner to support the determination of innocence or guilt. In many states when the testimony is presented in a capital case, the weight given to the analytical results can often result in a death penalty verdict. Therefore, those examination results have to be accurate, reliable, repeatable, and conducted utilizing appropriate scientific methodology. Likewise, the examiner’s expert testimony has to be non-judgmental, independent, and impartial to ensure an unbiased opinion regarding the analysis of the evidence.

THE FORENSIC DISCIPLINES AND THE EXAMINER
The various disciplines in forensic science can generally be grouped into several categories. Latent Prints, Questioned Documents, and Firearms (includes Toolmarks) can be categorized as the comparative disciplines. Controlled Substances, Biology (DNA), Trace Evidence, and Toxicology can be categorized as the analytical disciplines. Crime Scene is its own category. Although Digital and Multimedia Evidence (digital forensics) overlaps both the analytical and Crime Scene categories, it could also be considered its own category. Regardless, many of the currently popular crime-related television shows usually portray one or more of these disciplines in their scenarios. Since these shows are intended to provide entertainment, they often do not provide realistic insight intothe true world of the examiner. Most do not portray or present an accurate representation of the real challenges and pressures that examiners in all forensic disciplines encounter on a daily basis:

  • Successfully completing discipline-specific training programs
  • Maintaining competency
  • Successfully completing proficiency tests
  • Prioritizing assigned cases
  • Selecting appropriate analytical procedures
  • Providing accurate results
  • Dealing with investigators and prosecutors
  • Speedy trial considerations
  • Managing case backlogs
  • Attending advanced education/training courses
  • Scheduling court appearances
  • Balancing personal issues (vacation, illness, family, etc.) with work requirements

Newly trained examiners sometimes feel overwhelmed by the implications, pressures, and responsibilities of the career chosen. To assist the examiner in gaining confidence and enhancing his or her knowledge of the discipline, it is a common practice in many forensic laboratories to initially assign the examiner relatively simple cases. Many are also trained and instructed to be “conservative” when reporting results. For instance, if an examiner is indecisive regarding a conclusion, he or she may report a result as a “neither/nor” rather than a definitive “positive” or “negative.” As the examiner gains more knowledge and improves his or her skills and abilities, an increased level of understanding and confidence develops. This is generally true of examiners in all the forensic disciplines; however, what happens to the cases previously worked by the examiner in which the results may previously have been reported as “neither/nor?” Is the evidence resubmitted for reanalysis at a later date? It raises the question as to what effect those reports and results may have had upon the subject(s) charged in those cases.

As is often the case in forensic laboratories, only the “positive” identifications made by an examiner are verified. Particularly in the comparative disciplines, this provides a measure of quality assurance that the reported identification is accurate. Although a “neither/nor” or a “negative” result may be peer reviewed, the reviewer normally relies upon the notes and documentation in the case record and does not examine the evidence itself. Reasons why this is not done concern issues related to time constraints, lack of staff, and no requirement in the laboratory Quality Assurance Manual or in the Technical Operating Procedures (if they exist). Indeed, there are many known instances where examiners reported “neither/nor” results, and subsequently, when the evidence was re-examined at a later date, the results were then reported to be “positive” or “negative.” Justifications could include the inexperience of the first examiner or the perceived condition of the evidence prohibiting a definitive conclusion. In these instances, the first examiner essentially provided erroneous information, but there was no intent to do so. Or was there? Was the pressure to provide a definitive answer too difficult for the examiner to cope with that he or she chose the easy way out? If so, then a potential ethical question concerning negligence on the part of both the examinerand the laboratory would have to be considered. Unless the results are verified at the time of the examination or the evidence is reexamined at a later date, no one will ever know if erroneous information was reported.

AVOIDING ETHICAL CONFLICTS
What are some measures that can be utilized to avoid or mitigate the impact of these issues? All examiners need to successfully complete the applicable training program for the chosen discipline. Training programs need to include units onethics and criminal and civil law. The competence of the examiner needs to be assessed prior to independently working cases. Mechanisms to test the competence of the examiner need to include a “moot court” presentation to assess presentation skills. A period of supervised casework under the direction of an experienced examiner will greatly aid the new examiner in gaining experience and confidence. Periodic proficiency testing the examiner, preferably with a blind sample, can serve as a means to evaluate technical skills. Peer review of all results reported by the new examiner for a period of time can ensure accurate results. Finally, the examiner needs to adhere to a code of professional conduct or code of ethical practices. All of the above are elements of an effective Quality Assurance System. Further assurances can be obtained if the forensic laboratory attains accreditation.

(Editor’s note: The topic of ethics in forensics will be discussed further in forthcoming Digital Insider columns).

John J. Barbara is a regular contributor to Forensic Magazine® and member of its Editorial Advisory Board. John can be reached at digitalinsider@forensicmag.com.

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