An Overview of the Laws in Forensic Science
The interaction of forensic science and the law is of course all around us today, from courtroom dramas to crime scene thrillers, and even in television series dedicated to forensic science. The reason for this focus is relatively clear: the legal demand for forensic science reaches into many areas of modern life, such as criminal, civil, and administrative litigations, family law disputes, real property matters, trusts and estates, medical specialties, and business controversies. In fact, according to the National Academy of Sciences, forensic scientists are frequently called upon to explain and interpret the connection – or lack thereof – between evidence and perceived forensic phenomena.
Herein lies the importance of laws governing forensic science. Law regulates the practice of forensic science, and the routine work of forensic scientists and technicians. The scope and nature of such scientific practice is expansive, and may touch upon a variety of fields, from biology and physical sciences, to social sciences, to the law itself. Criminal lawyers, civil litigators and even legislators must all be mindful of the laws that affect forensic science practice, its effect on individual cases, and the varying exceptions that operate within legal fields .
Unfortunately, this subject – the laws that govern forensic science – has not been dealt with in a single text for an audience comprised of lawyers, judges, legislators and others who work with and around forensic science. This omission inevitably leads to confusion on the part of interested parties. For example, what exactly is the scope of effect of the Frye standard in determining admissibility for expert witness testimony? What is the Daubert standard and how does it affect the admissibility spectrum? What are the core functions of an expert witness? What distinguishes forensic evidence from other categories of evidence? What are the current laws governing forensic scientist professional responsibilities and ethical management of data and evidence? This text will satisfy some of that demand by addressing these questions as they arise in forensic science practice.
This compilation of forensic science law addresses these issues in turn, providing for a single source text that will be useful at every stage of the law, from the legislative level, to the courtroom, to the bench, to other disciplines in which forensic science is relevant.
Key Legislation for Forensic Science
The Daubert Standard sets the legal precedent in the United States for the use of expert witnesses, including forensic scientists. Established in the 1993 Supreme Court case Daubert v. Merrell Dow Pharmaceuticals, Inc., this standard requires that experts not only be qualified but also that their testimony or evidence be demonstrable and testable. This has had a significant impact on the admissibility of forensic evidence in U.S. courts.
In the United Kingdom, the Criminal Justice Act 2003 made substantive amendments to the use of expert testimony in criminal cases. Changes included the necessity for the expert witness to submit a report containing certain information and the requirement for court approval of expert witnesses. The Forensic Science Regulator has further influenced the UK scene, advocating for best practice and consistent standards through the Forensic Science Regulator’s Code of Practice and Conduct.
Testing arrangements and oversight have been a focus of European law as well. The ISO/IEC 17025:2017 standard specifies requirements for the competence of testing and calibration laboratories, making it a key guideline for forensic laboratories. ISO has published several related standards including ISO/IEC 17020:2012 to assess the competence of inspection bodies, and ISO/IEC 17065:2012, which concerns the quality of certification bodies and conformity assessment.
The Criminal Procedure and Investigations Act 1996 in the UK created the statutory mechanism now widely used to which police regulations are applied. The act also regulates the admissibility of evidence, as all relevant information that was disclosed to the defence prior to trial is to be presented, ensuring a fair trial.
Scientific and technical information is often subject to patent protection, which may more widely impact forensic science. The United States adopted the America Invents Act in 2011, which modified procedures to apply for patent rights and made other wide-reaching changes that could be of interest to forensic scientists.
Admissibility of Forensic Evidence
The admissibility of forensic evidence is another critical area for lawyers to understand within the purview of forensic science as a whole. As it currently stands, forensic evidence can be admitted as long as it is reliable and relevant, given the facts and circumstances of the case at hand. In 1993, in Daubert v. Merrell Dow Pharmaceuticals, the U.S. Supreme Court established the standards for admissibility of forensic evidence in federal courts under the Federal Rule of Evidence (Rule 702). This case pertained to issues in the area of medical forensics, specifically drug testing. The purpose of establishing these standards was to ensure that federal courts were assessing the quality, integrity and relevance of the scientific evidence presented in their proceedings. When it comes to Daubert admissibility, parties laying or challenging the foundation of forensic or scientific evidence must address four criteria: whether the theory or technique has been tested, whether it has been subjected to peer review and publication, its known potential error rate and their level of standards controlling the techniques and operation of the scientific evidence being. For Daubert admissibility, the most prominent case was 20 years later in Kumho Tire Company, Ltd. v. Carmichael, which expanded the Daubert precedent to apply to all technical and scientific testimony. In this case, the court found that the Daubert standards shall operate as a preliminary question of fact to be answered by the judge. In 2000, Kumho Tire was further expanded to include all expert testimony, under the ruling of Daubert v. Merrell Dow. As such, the court ruled that federal trial judges must act as gatekeepers to avoid misleading or unqualified expert witnesses. Since the Daubert case came out, courts have considered evidence admissible under three standards: Daubert is the leading authority for admissibility of forensic evidence in federal courts, but only moderately applied in state courts. Some states have adopted those standards, while others have not. Also noteworthy is the fact that state courts may rely on the Daubert standards when reviewing forensic evidence even if they have not officially adopted them, meaning the other 29 states should still consider the standard when evaluating their own standards and rules surrounding forensic evidence. The Daubert standard has had a significant impact on expert witnesses and the criteria used in admissibility cases, setting a high level of reliability and relevance in their findings. This has been a game changer for courts, lawyers and forensic scientists alike, as it has resulted in mass exclusions of expert testimony due to non-compliance with these standards. The standards also vary considerably from state to state, which is something lawyers must watch for, as courts in different states vary regarding the admissibility of certain expert testimony.
Guidelines for Ethical Behavior in Forensic Science
There are a number of ethical guidelines that the forensic scientist must follow. Those ethical considerations and guidelines then work their way into the forensic science practices and therefore have a huge impact on anticipated legal outcomes. For example, examining all of the information and determining the authentic experts to retain for case work are considered to be key ethical issues in forensic science. Certain cases require unique expertise whether its behavioral or scientific. These days there are few if any fool proof interviews of potential experts. Face to face interviews, check credentials, checking references, conference attendance, seminars, any research or published works-do they teach classes? Are they part of panels or boards? Have they given talks to any law enforcement agencies? Obviously, different types of experts are required for some case work and that goes beyond the so-called experts that are considered by lawyers to be ‘the go to guys’ for whatever the particular forensic science discipline is or the area of criminal law is.
A forensic scientist working with police officers to develop new lines of questioning, new strategies, involvement in trainings for policy makers, addressing gaps in the law, writing articles for newspapers, blogs or other websites. Speaking at a conference, and even doing community service are visible signs of ethics and therefore, the potential of a case outcome being successful in court.
Another ethical issue is confidentiality. Forensic practices should be documented and signed off by the professional. There is also the issue of payment and compensation for work done in court and even in the lab. Actual fees should be verified as well as adding expenses and travel time. It should not be forgotten that the professional and the defense are potentially on the same team with focused attention on the same goal.
Application of Forensic Experts in Legal Cases
The role of forensic experts at court or hearings is to assist the judge or jury with expert opinion evidence, within their area of expertise, and in so doing to help the court or jury arrive at a safe conclusion as to the facts and issues which are before them. Forensic science is increasingly seen as part of the day to day work of the courts. The evidence of forensic experts may include the presentation of complex scientific and technical information, or it may include more straightforward testimony from persons who provide clarity and interpretation to what are, or may be, legally complicated procedures or results. Section 20(3) of the Criminal Justice Act 1988 states: "Where on a trial on indictment or a non summary proceedings in a magistrates’ court a party indicates an intention to make an application under this section and the court is satisfied that the person whom it is proposed to call is a person who, if called, would adduce expert evidence and that any evidence the witness would be expected to give is necessary and would have been admissible had the witness been called as a witness for the prosecution on the preliminary hearing, it may authorise that party to adduce such evidence as the party would have been entitled to call in evidence , subject to such restrictions as (having regard to the matters already disclosed and the circumstances of the case) may be appropriate in the opinion of the court for the purpose of avoiding prejudice to the defence; and the evidence so adduced shall be treated as additional evidence for the purposes of any subsequent appeal." The provisions do not of themselves remove the party’s obligation to follow the relevant court directions. Moreover, those provisions are confined to preliminary hearings before a Crown Court – prima facie, they do not apply to trial hearings (Matthieson v HM Advocate General for Scotland). A continuing concern has been that certain expert witnesses have sought to seek to notify their own evidence, per se, and/or have sought to excuse their failure to comply with the court’s directions on the basis of section 20(3). Chairman of the Academy of Experts, Richard Aldrich, noted in Expert Evidence 2013 that: "Courts generally will not permit a party to lead additional evidence on the grounds that, had it not complied with the court timetable, the party would have done so by calling evidence from a third party which would have been adduced in compliance with a timetable. The courts will separate out non-compliance in relation to the disclosure of the expert’s evidence and the adequacy of the explanations given for it; at which point the application for an adjournment may be made. Non compliance will result in the issues being taken as admitted, or issues to which it relates, or any evidence relating to that expert’s evidence being treated as additional evidence."
Issues in Forensic Science Law
The forensic science community faces a multitude of challenges with regards to legal standards, particularly as it relates to advancements in technology and the emergence of legal loopholes. In recent years the science has grown exponentially to provide law enforcement and prosecutors with better tools to catch and convict criminals and the laws have not kept pace with this rapid growth. In addition, new technologies are becoming available faster than the law can amend itself to address them. Just recently the FBI celebrated the development of a new type of fingerprint analysis from a smartphone photograph – the first of its kind to be used in a criminal case. The challenge then presented to the courts is whether this newly developed technology is admissible under the legal standard for expert testimony: whether the "scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue."
The admissibility of forensic evidence under Daubert is a challenge that has long faced members of the forensic science community. As well, members of the forensic science community claim that states have used loopholes to exempt forensic experts from legal standards that would otherwise apply. For example, in some states forensic experts are exempt from complying with state law regarding their certifications and qualifications. As a result, the administration of a forensic expert’s qualification is left to the agency that is seeking to use forensics in criminal proceedings. Forensic experts are therefore at an increased risk of bias or wrongful application of their science.
Upcoming Changes in Forensic Science Legislation
As stated previously, the law lags behind science. This delay impacts the legal system’s response to new and developing forensic techniques. Additionally, changes in the law governing forensic science are heavily influenced by the activities of the courts.
Advances in scientific techniques will impact legislation governing forensic science. Potential changes include broadening the scope of forensic techniques. For example, forensic entomology is a developing field that combines forensic science and insect morphology. Currently, there are few statutes pertaining to this area of research, thus, future legislation might include authorizing forensic entomologists to testify at trial.
Changes in judicial perspectives will also affect future development and enactment of legislation governing forensic science. For example , a common concern among critics of the Supreme Court’s opinion in Daubert v. Merrell Dow Pharmaceuticals Inc. is that the trial judges in that case improperly excluded valid expert testimony. With regard to forensic evidence, some have opined that Daubert is a useful screening tool which promotes reliability and validity, while other critics have expressed concern that the exclusivity of the Daubert framework permitted courts to exclude expert testimony even when it was reliable. Some commentators speculate that this led to a growing consensus among judges that they should defer to the forensic evidence presented by forensic scientists in their courtrooms. If the judiciary increasingly defers to forensic evidence and expert witnesses, legislative bodies may be less likely to introduce legal protections for forensic evidence and expert testimony.
