Understanding of forensic science in Courts
Forensic material makes the greatest contribution to detecting harder-to-solve crimes.
By Masud Khabeki
Scientific evidence and other forms of expert witness testimony have, over the course of the last century, become routine features of criminal proceedings around the world’s legal jurisdictions. This expansion is part and parcel of the increasing prominence of science and technology in all walks of modern life. Yet, increasing reliance on forensic experts is something of a double-edged sword for criminal justice. There can be no doubt especially when sometimes, almost miraculous—power of forensic science in promoting the detection, investigation and successful prosecution of serious crime happened all of a sudden. But powerful medicine can have evil side-effects, if administered in excessive dosages or to the wrong patients. Precisely because scientific evidence often provides the best and most reliable proof of an offender’s identity and has won for itself an aura of credibility verging—in some minds—on infallibility, flawed expert evidence can be a potent source of injustice.
Traditionally forensic evidence has been used principally to ‘corroborate’ evidence against known offenders. However, forensic material is being used in a way that identifies unknown offenders. The presence of forensic material greatly increases the odds of detection where other types of evidence are not available. Overall, therefore, forensic material makes the greatest contribution to detecting harder-to-solve crimes.
Meanwhile, criminal litigation in our country has been undergoing major procedural and practical reform. There are numerous ‘drivers’ including a conscious desire to improve conditions for victims of terrorism, children and other ‘vulnerable or intimidated witnesses’ (especially complainants), compliance with human rights legislation and the provision of ‘fair trial’. The ongoing modernization and law reform to eradicate historical anomalies and a new emphasis on pre-trial preparation and proactive judicial case management to improve efficiency and eliminate avoidable expense and delay. Adversarial stratagems are frowned upon, legal proceedings must be self-consciously orientated to the pursuit of justice and resources must be managed wisely, a universal principle of good government lately underscored by the politics of austerity. These general policies have been extended specifically to forensic science and expert witness testimony in relation to, for example, reformulated duties for expert witnesses, streamlined forensic reports and augmented admissibility standards. The supply of high-quality forensic science assistance to the administration of criminal justice might also—however problematically—be fitted into prevailing narratives of modernization, streamlining and efficiency.
The level of understanding of forensic science among the organs of criminal justice systems across the world is poor. The actors of criminal justice system including law enforcers, lawyers and judges lack training that is required to understand the dynamics of new technology-based evidence. Many believe that forensic science is contributing to injustices because of misunderstandings and lack of understanding at all stages from collection of evidence to matching trace evidence to a particular person. The level of awareness about the forensic evidence within the criminal justice system need to be much greater because all such types of evidence are subject to potential errors. Particularly, when Forensic laboratories and practitioners lack adequate protocols and procedures to preserve physical samples from contamination or confounding degradation. Another problem with forensic evidence is the chain of custody.
Errors can and do occur at every level of evidence from evaluation, sampling, measurement, interpretation of results to presentation of findings of forensic evidence. Forensic scientists and expert witnesses may make mistakes. Experts could be corrupt or incompetent fakers. Furthermore, sound science could be corrupted by institutional procedures and processes for commissioning (or not), generating and communicating the results of forensic testing (partly as a function of funding arrangements). There is a possibility that the lawyers and the courts do not understand science properly, and consequently mishandle it and/or abuse it for their own strategic ends. Communication failures may also contribute their part as experts are incapable of expressing themselves (orally or in writing) in a manner comprehensible to non-specialists handling the case.
There is an urgent need not only for the forensic scientist to articulate and attempt to quantify all such possible sources of error, but the legal professionals should understand and expect this information and probe for the possible sources of uncertainty when it is not presented by the experts. A match cannot be considered as identification as it could lead towards injustices because of the misunderstanding about the probative value of forensic evidence, because, many forensic traces from crime scenes are only partial and may be subject to various types of contaminations, which may lead to form a profile that become insufficient to identify the offender as many people have a partial profile that could have a tendency for a possible match. Such kind of assertions regarding evidence always have dramatic impact on the court and the defense lawyers assume that their case is impossible to defend. The meaning of a perfect ‘Match’ in the context of forensic evidence needs to be re-evaluated and must have a clear definition. It is pertinent to mention that currently a ‘Match’ between two pieces of evidence is understood to mean that they come from the same source, but two pieces of evidence are branded a ‘Match’ when their measured characteristics are the same.
Unfortunately, there is widespread ignorance and misunderstanding about the workings of criminal adjudication and regarding the nature of forensic science evidence, including among those who are professionally concerned with the administration of criminal justice. Criminal adjudication is complex. Usually, misapprehensions are partly attributable to the fact that not everything in this field is as simple or straightforward or foolish or corrupt as it may appear on the surface, or from only one occupational or disciplinary perspective.
The type of understanding about the forensic evidence in vogue is bound to miscalculate the danger that is hovering around such practices. The actors of criminal justice system are generally without basic training of identifying the forensic evidences. There is an urgent need to provide them with a training in probability and statistical value of such evidences. The training would help them to identify the mechanisms by which forensic science is applied to the investigation of a particular crime, to identify the strengths and weaknesses of the use of forensics in the investigation of crimes and furthermore, would help to identify the way in which forensic science contributes to the effective and efficient detection (and conviction) of crime. The training would enable the lawyers and judiciary to understand the statistical analyses presented and to identify any weaknesses in the analyses presented and to avoid common fallacies such as the prosecutors’ fallacy. This has to be understood that there is virtually always some degree of uncertainty in forensic investigations.
The worlds of science and law have never been as intertwined as they are today, with the latest scientific developments having far reaching repercussions for society’s oldest laws. However, the majority of science students are not equipped to play the vital role of providing evidence in the court room. The Role of the Expert Witness have to be defined sooner or later by the courts themselves, this would help to translates the language of law to provide a practical guide to prepare people to become expert witnesses.
Masud Khabeki is Adjunct Professor Criminology, Arid Agriculture University, Rawalpindi.