Forensic ethics

Question

Can a forensic investigation be truly ethical?

Answer

Every profession has ethical guidelines that all professionals should adhere to all the time. Forensic investigators, like all other professionals, are guided by a clearly outlined ethical code. However, owing to many emerging challenges in the forensics profession, forensic scientists often find themselves in a dilemma because some of the puzzles they have to deal with are not provided for in the existing ethical code. Forensic scientists always work under pressure from the police, whose main interest is not to uncover the truth but to win a case. Likewise, these professionals are sometimes are always under pressure to adapt to two different, sometimes conflicting, sets of ethical codes. For this reason, it is difficult for these investigations to be truly ethical.

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Today, defense counsels, prosecutors, the court, and the subjects themselves have to rely on the information provided by forensic experts. Therefore, these experts have to be cautious not to violate the ethical guidelines governing his profession. Doing so would result in everyone in the forensic science fraternity losing credibility. The decisions that these experts make are life-altering and therefore a lot of seriousness is called for whenever ethical issues are being handled.

When a forensic scientist is forced to resign over allegations of misconduct, this may have far-reaching consequences on the cases that he may have handled before. The two main questions that people often ask whenever this happens are: is the evidence he has already given in previous criminal cases credible? What happens to other cases whereby his testimony led to conviction? These are difficult questions whose answers cannot be provided without getting to the core of the discussion on ethics.

In most states, whenever testimony is presented in a capital case, analytical results provided by forensic scientists are heavily relied on and may greatly influence the issuance of a death penalty. For this reason, these results should be highly accurate, repeatable, and reliable (Frankel 1989 p. 765). They must also have been arrived at using the most relevant scientific technology. Additionally, the testimony of the examiner’s expert should be non-judgmental, impartial, and independent in order to ensure that the opinion given is unbiased.

            There are many challenges in a career in forensic science. Some of them include the need to maintain competency, prioritize assigned cases, provide very accurate results, manage case backlogs, schedule court appearances, speedy trial considerations, deal with prosecutors and investigators, attend advanced training courses, successfully completely highly specialized training programs and balance personal issues relating to family, illness vacation and so on (Pyrek 2007, p. 365). It would be difficult to handle all these challenges well without a code of conduct that guides forensic professionals. However, it is even more difficult to deal with these problems when the existing ethical code does not stipulate everything clearly, leaving room for many different interpretations to be derived.

            Examiners who have recently been trained tend to feel overwhelmed by the pressures, responsibilities, and implications of their careers. In order to safeguard ethical balance, these newly recruited professionals are often given relatively simple cases. In addition, they are requested to be “conservative” in their results by avoiding giving a “positive/negative” and instead, opting for a “neither/nor” kind of answer. Unfortunately, this may affect the criminal justice process in a negative way. Defendants whose cases are being investigated by newly trained forensic experts may not be judged fairly simply because of the incompetence of the investigators. If the evidence submitted in these cases is never revisited at a later date, there are serious ethical shortcomings that need urgent attention.

            Another ethical concern is about verification of the information given by the examiner. It is perfectly alright to verify only “positive” identifications. This acts as an assurance that the report that was issued is accurate after it has been peer-reviewed. However, the peer reviewers do not verify the evidence itself; rather, they rely on the notes and documentation contained in the case record. The main reasons why the evidence itself is never revisited are lack of staff, time constraints, lack of the requirement in the Technical Operating Procedures and the Quality Assurance Manual. This is clearly an instance of an ethical violation.

            In today’s pragmatic world, many people would be hesitant to deny that forensic experts sometimes bow to pressure to produce a definitive answer and end up giving false information as it is the only way out (Peterson and Murdock 1989 p. 754). Whether or not this happens in the modern pragmatic world is debatable. However, there is no doubt that there is a need to strengthen existing ethical guidelines in order to provide these experts with many options for dealing with such situations. One of the justifications for a first examiner providing inaccurate results may be that he is not experienced. If this justification became universally admissible, the experts would readily exercise negligence, leading to gross mistakes in the criminal justice system.

The need to avoid ethical conflicts in forensic investigations

Successful completion of a specialized course in forensic investigations is necessary but not enough. Likewise, policymakers need to go beyond training these experts on how to deal with ethical concerns. If the code of ethics was revisited and revised in order to reflect the changing realities in the criminal justice system, this would help the experts in maintaining high professional standards.

Prior to working on any case, the trainees need to be assessed independently on the ability to handle working cases. An assessment of presentational skills also needs to be done independently in simulated courts. A certain period of supervised casework would enable the experienced examiner to carry out an audit on the ability of the newly recruited professional to handle real-life examinations professionally.

All over the world, forensic laboratory experts often work in an environment full of adversaries. Police officers are never interested in the quality of the evidence gathered; they only want to win cases. The same case applies to the prosecutor whose strength of the argument depends entirely on the kind of evidence provided by the forensic experts. In such an environment, it is very easy for ethical considerations to be overlooked. Whenever forensic scientists join in the chase for a likely suspect on the strength of mere suspicion rather than concrete scientific evidence, then ethical rights are being violated.    

Furthermore, the investigator may fail to submit the right kind of clue material for the forensic scientist to use in the analysis of the evidence. When control over clue material is in the hands of the police, the forensic expert has no choice but analyze what has been provided to him. This creates a limitation on the nature and type of analysis that is performed. For many scholars who are keen on matters of criminal justice, the most important stage in the determination of capital cases is the collection and analysis of physical evidence. Yet this is the level where the forensic scientist no active role to play.

In a different scenario, the forensic scientist may feel that certain information, though not requested, is relevant for the proper determination of the case. The prosecutor may be opposed to the presentation of this information. However, it is often the duty of the forensic scientist to try as much as possible to pursue the truth under even the most stressful circumstances. Unfortunately, these experts see the need to put their careers before matters of ethics by giving the information that is most acceptable to the police officers and prosecutors under whom he seems to be working.

The ethical concerns that arise in various situations may differ according to the association, fraternity or organization that the forensic expert works for. On the same note, different forensic bodies such as associations, departments, corporations, and organizations give impose slightly different codes of ethics for their members. Although these differences may be subtle enough to be ignored at the federal level, they create considerable confusion during capital cases. The confusion may force investigators to impose their own standards in order to deal with on-the-job pressure well.

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Like in all other situations where guidelines are relied on in order for professionals to act ethically, forensic experts are sometimes required to be innovative. This provision creates room for the ethical code to be flouted. Conversely, the pragmatic world is not always in synchrony with the requirements of ethical standards; therefore, relying on the code of ethics in order to resolve all arising ethical dilemmas may not be a realistic thing to do. This lack of definitiveness does not augur help professional overcome day professional work performance challenges; rather, it creates more legal and administrative difficulties.

Forensic scientists are required to conduct their analysis in a thorough manner, to examine all available evidence as well as carry out sufficient tests to reach conclusions. However, the thoroughness of the analyses depends to a certain extent on the availability of appropriate technology. When there is a lack of such technology, the conclusions arrived at may not be accurate. Therefore the person charged may cry foul overuse of evidence that is not admissible to court owing to its inaccurateness. However, the worse things may happen when the defendant is not aware of technological shortcomings in the analysis of evidence. In this case, justice may fail to prevail.

            For justice to be done, the scientific aspect of forensics should be demystified. This is a difficult undertaking considering that some lawyers may not fully understand forensic processes and therefore, they may find it difficult to explain the course of the trial to their clients. In such situations, forensic scientists are expected to differentiate scientific facts from expert opinion. It is difficult to force forensic experts to do this without laying down a clearly detailed code of conduct. This is because they may be influenced by their adversaries, against their will, to favor the prosecution.

            In matters of representation of scientific facts, forensic experts are bound by the ethical guidelines relating to the processes of scientific inquiry. However, when an expert chooses to withhold information, there is nothing much that a non-expert can do to straighten things up. This is mainly because lack of time and enough staff often makes it difficult, almost impossible for the information used during the trial to be verified for accuracy. This creates a scenario where forensic analysts get away with misconduct. In such a situation, it is easy for such an unethical practice to take place in the future.

The root causes of ethical concerns in forensic investigations

The interactions that relate to the methodology of science, principles of the justice system and realities of law practice are very complicated. These complications bring about many ethical challenges with them, yet an ethical code is the hallmark of every profession. It is the code that governs what every member of the profession acts while conducting his duties as well as exercising his mandate. The complications often arise in areas of relationships between different members in the professional hierarchy, the people who are affected by the actions of practitioners and users of the professional service.

Attorneys may sometimes try to influence the way in which the forensic psychiatrist explains the evidence that he has relating to the person who is answering to criminal charges. The changes may involve alteration of opinion or a shift in emphasis. Altering a language so as to present a point more clearly does not infringe on anyone’s ethical rights. However, substance change in language does. In most cases, it is difficult to differentiate between the two. (Oldham and Riba 2003, p. 365)

The complications in ethical matters relating to forensics arise also as a result of the diverse specialties where the experts are drawn from. In each specialty, there is a slightly different code of ethics. However, all these experts have to converge for purposes of contributing to justice. One would assume that there exists a unified code of ethics that ties all the areas of specialization for the common goal of dispensing justice, yet no such ethical regulation exists. This is the main reason why prosecutors seem to occupy positions of prominence by virtue of seeming to represent a converging point where all the experts from different professional backgrounds converge.

The differences in the role of the attorney and a forensic expert sometimes bring about ethical concerns that are brought about by the resulting confusion. Attorneys often represent one side of the legal system and are therefore not expected to be objective. Forensic experts, on the other hand, are witnesses who have to take an oath to tell nothing but the truth. Whereas each lawyer has the right to present a one-sided version of the evidence, at least by way of interpretation, there is controversy as to whether forensic experts can use affirmative obligation to bring out the truth that either lawyer may be trying to trick him into distorting.

Perhaps the worst case of ethical misconduct is a situation whereby forensic professionals act as a “hired gun” to present only the evidence that is in favor of one side during trial. In such cases, the people involved are easy to deal with by provoking definite provisions of the appropriate code of ethics. However, it may be difficult to sniff such people who are professional embarrassment in forensics since verification of forensic evidence presented in court as a basis of judgment is rarely done once the court cases have been determined.

Some of the forensic experts who distort information often rationalize their decisions by claiming that they are trying to make up for the shortcomings and limitations of the existing judicial system. The challenge of evidence distortion is a real one. However, in this case, these experts may choose to distort information voluntarily rather than due to pressure from prosecutors and attorneys. Meanwhile, the pressure put on these experts to adapt to two different ethical codes is a real challenge. For instance, someone who is from a helping profession such as medicine will have great difficulties adapting to the ethical code of the legal system.

The vagaries that exist in the legal system may greatly contribute to the violation of ethical codes of conduct by forensic experts. These experts may not understand that some information has to be left out for legal reasons. Such information may be omitted because it may damage the reputation of the accused or because it is not relevant for purposes of ensuring that justice is done.

            The tension that exists between two different professional codes of ethics may be very dramatic especially in the pursuit of justice or retribution. Experts from other professions often find themselves in a situation where they are responsible for the course that justice takes. Courtroom experts often face the temptation to mislead the court by giving information that enables them to achieve certain goals, thereby obstructing justice. They do so by posing as experts in their areas of specialization rather than merely a witness who is expected to give his side of the story(Philip 2007, p.4).

            On one extreme end, it is very common for courtroom experts to feel that the information that they give threatens the defendant in a very significant way. In this case, they may feel obliged to redefine their involvement in the case by omitting and changing some facts in order to exonerate the defendant from the danger of a harsh sentence. On the other extreme end, there are experts who blatantly violate both sets of ethical codes by offering their professional services to the highest bidder. Such professionals, if found out can be dealt with easily within the frames of the existing law.

            During courtroom testimony, the adversary environment creates room for tension, something that may puzzle a freshly trained forensic expert. Additionally, competing professional and legal influences lead to improper differences of opinion that are characterized by the withholding of contrary data, exaggeration and improper interpretation of data to create the wrong impression,

            In conclusion, it is very difficult for a forensic expert to dig up evidence without raising some ethical concerns along the way. However, the most serious concerns seem to arise in the courtroom when the evidence is being presented. This arises because these experts are bound by the ethical codes of the justice system as well as those of their respective professions. For this reason, there is a need for these two sets of ethical standards to be harmonized in order to reduce ethical violations.

References

Frankel, M.S. (1989): Ethics and Forensic Science: Professional autonomy in the criminal justice Journal of Forensic Science, vol.34 no 3 pp. 763-71

Oldham, J.M.&Riba, M.B. 2003. American Psychiatric Press Review of Psychiatry, Macmillan, New York.

Peterson, J.L. &Murdock, J.E. (1989): ‘Forensic Science Ethics: Developing an Integrated System of Support and Enforcement’, Journal of Forensic science vol 34 no 3 pp 749-62

Philip, J.C. 2007.Forensic Ethics and the Expert Witness. Springer Science, New York.

Pyrek, K. 2007. Forensic Science under Siege: The Challenges of Forensic Laboratories and the Medico-Legal Investigation System, Routledge, New York.