When science doesn't meet the law
Date: 11 July 2008
Authors: Carole McCartney
Issue: Vol 158, Issue 7329
Categories: Features, Profession
As television viewers and legal professionals alike will attest, forensic science is increasingly pivotal in criminal investigations and central to the detection of crime. It has also long been called upon to assist with a myriad of other “legal” investigations such as health and safety investigations; anti-terrorism, family and immigration cases, and other regulatory or civil issues. Upon qualification, all lawyers are quickly required to understand and manipulate information from scientists and other experts. Moreover, the significance of forensic science to the legal system can only be expected to increase with scientific developments occurring at a fast pace, yet there is growing concern about whether the legal profession are keeping up with the scientists.
The “problems” with forensic science, and mistakes made by experts, are rehearsed in the media on an increasingly regular basis. Normally absent from such criticisms is any examination of why it was that no lawyer was able to spot a potential issue or had drawn attention to errors before damage was done. Yet, lawyers can avoid any scientific training throughout their education and professional development and this appears the norm.
This should stimulate a wider debate about forensic skills within law degrees and continuing professional development and whether legal education is still “fit for purpose”.
Scientific Illiteracy and the Legal Profession
The perceived “scientific illiteracy” among the public could be seen to extend its reach into the legal profession. This is not surprising when looking at the scientific education of law students, most of whom have not studied any scientific discipline post-16. By way of example, of the 214 students given an unconditional offer to study the LLB at Leeds in 2007, just 39 (18.3%) had at least one science A-level. The traditional law degree then dilates this educational lacuna by failing to introduce law students to basic scientific concepts, or provide even a rudimentary grounding in the work of forensic scientists.
A survey of law schools in England and Wales finds that just four advertise any “forensic” modules (though some may possibly be available as electives within other departments). So not only do a minority of students enter their law degree with any scientific background, few will leave having come into contact with “science” during their degree. This is compounded by the LPC or BVC, neither of which incorporates any science.
The House of Commons Science and Technology Select Committee in their 2005 report—Forensic Science on Trial—claimed that: “it is of great concern that there is currently no mandatory training for lawyers in this area” and that there had been “repeated calls for better training of judges and the legal profession”. The committee found evidence of a lack of training in forensic evidence for lawyers at all levels, yet this, it reported, “should be part of a lawyer's training right at the very outset, from pupil barrister upwards”. Given the important role played by DNA and other forensic evidence in criminal investigations, the report stated that it is “wholly inadequate to rely on the interest and self-motivation of the legal profession to take advantage of the training on offer”.
The committee made a number of recommendations including forensic science training for all those involved in the criminal justice system, including the stipulation that judges should be given an annual update on scientific developments of relevance to the courts. The committee also recommended that “the Home Office issue a consultation on the development of a cadre of lawyers and judges with specialist understanding of specific areas of forensic science. An additional benefit to this would be the creation of a small group of judges and prosecution and defence lawyers with the ability and current knowledge to act as mentors to their peers when required”.
The shortfall in legal training can be contrasted with the situation in university forensic science departments and within forensic science companies, where there is emphasis placed upon not only learning the science, but also the legal context. A forensic graduate without a grounding in the law would be rightly considered lacking. Forensic science students learn about courtroom etiquette and present their scientific findings as an expert witness having investigated a crime scene scenario. They give evidence-in-chief and are robustly cross-examined by lecturers who themselves have acted as experts at court. The corollary of this for some parity in law education should be that law students would attend a crime scene scenario and then subsequently be examined on their science-based findings in a legal format.
Introducing Forensic Science to Law Students
An attempt to address the lack of basic forensic science skills within the legal profession, will require a two-pronged approach. Firstly, introducing basic “science” into law degrees. This is difficult not only because of the lack of scientific background among the students, but the legal academics teaching them. This then demands cross-disciplinary collaboration.
In many universities there will be a forensic science department and a law department which could offer complimentary and interdisciplinary modules. At the University of Leeds, legal academics are working with experts in forensic science from the University of Stafforshire and web-designers, to develop an existing module—Forensic Process and the Law. This modules demands that students comprehend and amass data about forensic process and the law as well as introducing them to some of the basic scientific premises upon which valid and reliable forensic science must be built.
The Leeds & Staffordshire project is developing a series of exercises and assessment for law students, using a bank of 1,000 high-resolution photographs taken by a professional forensic photographer of mock crimes scenes staged at the Crime Scene House on the Staffordshire University campus. The result will be a web-based exercise where law students— taking on the decision-making roles of the forensic scientist/ police investigator/ legal representatives (defence/ prosecutor) and ultimately, judge—will work through a realistic forensic-case study and present their findings in both written and oral form. They should develop an awareness of the decision-making and constraints that govern the use of the science within the justice system and develop an understanding of:
● the role of a forensic scientist within a criminal investigation;
● how the use of science is prioritised within an investigation;
● how the application and use of science is justified within a criminal investigation;
● the different roles/agencies involved in a complex criminal investigation and how these intersect;
● how scientific evidence fits within a prosecution or defence case and how decisions made during investigations impact upon evidence which may be presented at trial.
Introducing Forensic Science to Lawyers
Of course, a number of legal professionals will have non-law degrees, and may then need acquainting with science before they practice. While the number of miscarriages of justice associated with forensic evidence may be relatively low, the 2005 select committee report was extremely concerned by the lack of safeguards to prevent such miscarriages, and the perceived complacency of the legal profession with regard to these matters. To avoid later compulsory training, providers of the LPC and BVC should be introducing basic (forensic) scientific principles before declaring lawyers fit for practice. This will require similar networks of collaboration between scientists and LPC/ BVC providers to inject some basic science into these pre-practice qualifications. In particular, it should no longer be acceptable to qualify to practice without a basic grounding in DNA, as developments in forensic DNA technologies have brought challenges for the legal profession.
Forensic DNA analysis has undergone significant development in recent years, with many lawyers now required to understand at least the basic science behind DNA profiling if they have any hope of understanding DNA evidence. One DNA profiling technique that recently received media coverage is known as Low Copy Number (LCN) DNA analysis. LCN allows genetic profiles of offenders to be created from very small samples that have only been detectable with new techniques available since 1999. A few skin cells or sweat left in a finger print is sufficient for LCN DNA analysis. The technique is a form of biological photocopying in which billions of copies of ten–20 specific regions of a person's DNA are made that generate a unique profile of that person. A full match represents in probability terms, a one-in-a-billion chance of the profile being identical to that of another person taken at random from the world's population. One service provider of LCN testing, the Forensic Science Services Ltd (FSS) have reported the use of LCN DNA about 21,000 times and generated profiles from items such as matchsticks, weapon handles and grabbed clothing, with specialised scientists interpreting the data, especially where the DNA has been damaged or is contaminated.
There are dangers in working at such outer limits of science and in the Omagh bombing case, R v Hoey [2007] NICC 49, [2006] EWHC 2648 (QB) (20 December 2007), the judge expressed concerns about LCN DNA analysis conducted by the FSS. In particular, the extent to which the scientific validity of the technique had been proven. As a consequence of the concerns expressed, the use of the method was briefly suspended last year while the Crown Prosecution Service (CPS) carried out an internal review of current cases involving LCN DNA analysis. From this, the CPS “has not seen anything to suggest that any current problems exist with LCN”.
Similarly, a report commissioned by the Home Office and the Forensic Science Regulator, concluded in February 2008 that LCN DNA analysis is “fit for purpose” in court and the technique was “scientifically robust”. The report, however, made 21 recommendations including improvements in how police forensic teams collect evidence and advised upon the creation of a national minimum technical standard for the process. It is unlikely that the LCN DNA controversy is over, however, with upcoming appeals likely to shine the spotlight yet again on this technique.
Such cases and those miscarriages of justice based on flawed scientific evidence that have famously gone before it, underline the vital importance of challenging “scientific” evidence. Yet the success of the adversarial system in ensuring that expert witness testimony based on forensic science evidence stands up to scrutiny depends on the proficiency of the lawyers involved; there is a danger that if lawyers do not understand the expert evidence, then it will not be properly tested, if challenged at all.
Lawyers are required to make an initial assessment of whether the evidence to be relied upon should be challenged or whether they need to employ their own expert, and yet they most often do so without any knowledge of basic scientific principles or the background science of techniques such as DNA profiling. Financial constraints often deter lawyers from approaching experts, making even more vital the reliability of their initial assessment; to ensure that alternate experts are resorted to wherever necessary, but money is not wasted on experts where the evidence is unequivocal.
There are now organisations offering CPD training to lawyers in basic DNA profiling, such as that offered at both Leeds University and the NOWGEN Centre in Manchester, but there is a clear need for lawyers to see forensic science training as an essential part of their continuing development.
An analysis of the impact of such forensic training should be undertaken soon to determine the usefulness of such initiatives and whether the select committee recommendation that a special “cadre” of forensically trained lawyers be created should be more vigorously pursued. This should then be fed back to the forensic and legal regulatory bodies to consider rolling out a programme of study for law students, trainee and qualified lawyers nationwide. Hopefully one day, forensic science will meet the law in a complimentary fashion rather than simply head-on in the courts.
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