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Ethical Justice

1. Ethical Justice
Chapter Eight: Ethical
Issues in Forensic
Examination

2. Ethical Issues in Forensic
Examination
When there is a criminal complaint, law enforcement
investigators are responsible for conducting a criminal
investigation.
To assist with this effort, it is necessary to examine the
physical evidence.

3. The Role of the Forensic Examiner
A forensic examiner refers to any professional who examines
and interprets physical evidence with the expectation of
courtroom testimony.
Forensic examiners analyze evidence in a scientific manner to
interpret the results objectively and report their findings faithfully.
Forensic examiners employ the physical evidence as a tool to
sift out case theories that can either be supported or refuted, and
report this to the decision makers.
The first onus of the forensic examiner is to establish the
objective facts of a case as determined by a scientific
examination of the evidence.
Forensic examiners educate investigators, attorneys, courts, and
juries with findings. They do not have an investment in the
outcome.

4. Traits of the Ethical Forensic
Examiner
The following are traits essential to a forensic
examiner:
Develop, maintain, and demonstrate impartiality
Acquire knowledge of scientific methodology and
demonstrate employment of scientific methodology in
their work
Maintain transparency
Achieve and maintain scientific integrity – a level of
trustworthiness that must be earned and must not be
assumed.
The anticipation of sworn expert testimony and the
offering of sworn expert testimony are distinctive traits
possessed by the forensic examiner.

5. The NAS Report
The NAS report is the congressionally funded system-
wide investigation and review of forensic science
disciplines and crime laboratory practice.
The NAS Report provides the following conclusions in
relation to forensic examiners:
1.Forensic science and law enforcement are culturally
incompatible, with separate missions in the justice
system.
2.The majority of the forensic science community lacks
standardized terminology and report writing
requirements.

6. The NAS Report
3.Many forensic examiners perform examinations and
testify regarding subsequent findings with an
inappropriately high degree of certainty.
4.The NAS Report recommends empirical research into
the frequency and nature of examiner bias and error.
5.Currently, there is no uniform code of ethics across
forensic science disciplines.
6.In order to practice forensic science competently, the
forensic examiners must first be educated and trained
as scientists.

7. Examiner Bias and Role Strain
Forensic examiners must be capable of demonstrating
that they have no emotional, professional, or financial
stake in the outcome of legal proceedings.
In other words, they cannot be paid to guarantee
findings or testimony favorable to their employer, nor
can their advancements or pay be connected to the
success of one party over another.

8. Examiner Bias and Role Strain
Picking Sides; Picking Evidence
Science must be honest and unbiased in its methods and
reporting. When scientists become biased, and step outside of
their objective role, justice is perverted.
Cops in lab coats – On the prosecution side, this phrase has
been used to describe those in public laboratories who try
and make their results match their agency’s case against
the accused.
Hired guns – on the defense side, these private forensic
experts will testify to any opinion.
Cherry picking – the evidence provided to the forensic
examiner is often selected from the crime scene by a police
investigator in support of a particular theory, or by a
prosecutor looking for a conviction.

9. Examiner Bias and Role Strain
Role Strain
The objective mandates of good science are frequently in
direct conflict with the needs of investigators, the desires of
attorneys, and even the rule of law as decided by various
courts.
This conflict creates a strain in the role that forensic scientists
intend to serve.

10. Institutional Pressure and
Observer Effects
The scientific observer is an imperfectly calibrated
instrument.
Imperfections stem from forms of bias, whether conscious
or unconscious, can easily contaminate what appears
outwardly to be an objective undertaking.
These distortions may be caused by observer effects – a
form of bias present when results of a forensic
examination are distorted by the context and mental state
of the forensic examiner.

11. Institutional Pressure and
Observer Effects
Identifying Observer Effects
Forensic examiners must be aware the observer effects exist
and can significantly influence their analysis and results.
Once recognized, they can be studied and understood; once
understood, they can be addressed and mitigates.

12. Institutional Pressure and
Observer Effects
Mitigating Observer Effects
The ethical forensic examiner has an obligation to mitigate
observer effects, to the extent possible. The following must be
taken into consideration to mitigate subconscious bias:
The forensic science community must use the same
checks and balances already adopted in other scientific
communities.
Forensic examiners must be capable of identifying and
filtering information that is irrelevant to their examinations.
Evidence line-ups should be used when appropriate,
particularly within the identification sciences.
Forensic examiners should be insulated from law
enforcement culture.

13. Ethical Issues in Report Writing
Forensic examiners are hired to analyze the evidence
and objectively report findings, no matter the outcome.
This may be done verbally, with a written report, in
formal interviews and sworn depositions, and finally in
the form of courtroom testimony.

14. Ethical Issues in Report Writing
Due Process and Brady v. Maryland
The 5
th
and 14
th
Amendments to the U.S. Constitution provide
that the government may not deprive its citizens of “life,
liberty, or property without due process of law”. Any condition
or treatment that tends to bias a judge, jury, or the process as
a whole in favor of the state is considered a violation of due
process.
Brady v. Maryland is a legal ruling from the U.S. Supreme
Court that holds, “the suppression by the prosecution of
evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution.” It requires timely disclosure of exculpatory
evidence by the prosecution to the defense.

15. Ethical Issues in Report Writing
Writing it Down
Forensic examiners have an ethical responsibility to
ensure that all examinations and results are wholly and
effectively communicated to the intended recipients.
The most accepted form of professional communication is
a written report.
This also provides the forensic examiner with a record of
the examination that should be sufficient to refresh their
recollection from the stand.

16. Ethical Issues in Report Writing
Reporting Obligations of the Defense Examiner
When working for the state, forensic scientists are required to
make written reports of any examinations or tests performed
on evidence, as well as subsequent findings. They are also
required to preserve any photographs, drawings, or bench
notes generated. This is in accordance with Brady v.
Maryland.
When working for the defense, the rules of discovery differ. A
forensic examiner may be asked to refrain from writing a
report of their findings.

17. Ethical Issues in Report Writing
Inconclusive IS a Result
Inconclusive findings are a result. They are relevant to the
reconstruction of a crime, the nature and extent of
examinations performed, the evidence they were performed
on, the quality of any testing, the competency of the
examiner, and any legal proceedings that hinge upon the
weight that a judge or jury attributed to that evidence.
The practice of selecting which results to disclose is
dishonest, and may be referred to as another form of cherry
picking.

18. Ethical Issues in Report Writing
Cherry Picking violates due process because:
1.The concealment of any examination performed on any
item of evidence represents a break in the chain of
custody.
2.The execution of any examination on an item of evidence
has a potential impact on its volume and quality.
3.The failure to notify the police, court, or attorneys involved
in a case regarding the existence of inconclusive
examinations assists with concealing the cause behind
such results.
4.The failure to investigate and report the cause of
inconclusive results potentially conceals the error ate
and/or the individual examiner proficiency rate related to a
particular test.

19. Ethical Issues in Report Writing
Ghost authorship
This occurs when the person whose name appears on the
publication was not involved either in doing the research,
framing the ideas behind the articles, or in writing the
article. Alternatively, it can occur when an individual who
has made substantial contributions to the manuscript is not
named as an author or whose contributions are not cited in
the acknowledgements.
This is generally considered a form of scientific
misconduct.

20. Ethical Issues in Expert Testimony
The ethical forensic examiner will refrain from making
any false or misleading statements, especially when
giving sworn testimony.
The Ultimate Issue - the legal questions before the trier
of fact. It is the role of forensic practitioners to educate
the court as to scientific opinions related to and
bordering on the ultimate issues, but they must fully
acknowledge their limitations.
Perjury – the act of lying or making verifiably false
statements on a material matter under oath or
affirmation in a court of law or in any sworn statements
in writing.

21. Forensic Fraud
Forensic fraud occurs when forensic examiners provide
sworn testimony, opinions, or documents bound for court
that contain deceptive or misleading information, findings,
opinions, or conclusions, deliberately offered in order to
secure an unfair or unlawful gain.
Forensic examiners can be cross-categorized as having
used one or more of the three general approaches to
committing fraud:
§Simulators – those examiners who physically manipulate
physical evidence or related forensic testing.
§Dissemblers – those examiners who exaggerate, embellish,
lie about, or otherwise misrepresent findings.
§Pseudoexperts – those examiners who fabricate or
misrepresent their credentials.