Forensic science in criminal prosecution - ACS Publications

Forensic Science in JOSEPH M. ENGLISH Georgetown Universit y, Wash ingto n , D.C. 20007

N RECENT YEARS, the courts have Isubjected some of the classic methods of law enforcement to closer scrutiny than ever before. For centuries those methods used by enforcement agencies and the prosecution t o solve crimes and to bring the perpetrators t o justice, respectively, have depended upon: (1) confessions of guilt, (2) statements of witnesses to the crime, and ( 3 ) information derived from physical evidence, sometimes called “circumstantial” evidence.

Direct Evidence

The first two-ie., confessions and witnesses-historically have been characterized as “direct evidence.” The last, t h a t is, physical or circumstantial evidence, has been called “indirect evidence,” and, because it is “indirect,” there may have been a tendency t o give it less weight than the “direct” evidence of the coqfession or the witness’s statement. After all, who should know better the details of what happened and the identity of the person who did the deed than the guilty party himself or those who saxv the act committ ed ? Standing alone, free of the encumbrances of the real world, there would seem t o be no more reliable premise upon which t o base the quest for the truth of the matter and on which t o base wise adjudication than the premise t h a t the testimony of those who were present a t the occurrence may be taken as dependable. 40A

However, criminal justice is not administered in the rarefied air of pure thought and pure motives, but in a milieu of complex and sometimes conflicting information and, a t times, considerably less than pure motives-a milieu in which those who administer justice must somehow sort out facts from fictions and, constantly testing the “facts,” fit those which stand the test into place with such patience and skill t h a t the true picture comes clear. The world of the investigator and the jurist is one in which thought systems, therefore, loom importantly. True facts in inept though well-meaning hands can serve justice and injustice with an impartiality reminiscent of the roulette wheel. Cases come to mind in which, for sundry reasons, persons have seriously confused investigations by falsely confessing or by falsifying more or less essential details of the occurrence under investigation. An extortionist, for fairly obvious purpose, in one case confessed t o writing the threatening note which he had prevailed upon his young daughter t o write for him. An airman falsely confessed, after several days of questioning, to murdering a young woman whom he probably had never even met. Two others had confessed to the same crime. However, a mistaken crime laboratory blood grouping mislead the investigators, causing them t o intensify their interrogation of the airman and t o free the other sus-

ANALYTICAL CHEMISTRY, VOL. 42, NO. 13, NOVEMBER 1970

pects. one of whom it now appears committed the crime. After conviction and six years in prison, the airman was cleared by belatedly developed information brought t o light by an energetic newspaper reporter, a dedicated priyate attorney, more careful crime laboratory n-ork, and more accurate testimony than appears to have been used in the original investigation and trial. The attorney spent his own funds contacting widely dispersed witnesses and for other expenses. Over $3000 of these expenditures have not been reimbursed. If some confessions are false, it hardly can be reasoned that all confessions are, therefore, unreliable and should be ignored as without evidential value. The problem may xell lie elsewhere-ie., with the conditions under which the confession was obtained, emotional instability of the person under questioning. excess of zeal on the part of the interrogator, or other factors. TT’hen all necessary conditions are as they should be, a confession is as valid, trustworthy, and reliable a source of accurate information as probably any other. There appears to be a widespread belief among the judiciary t h a t fault too frequently may lie with the investigator through naioet6, zeal, or bias. This overworked public servant, the investigator, almost inherently is under pressure from the community and the news media, through his chief, to “solve” or to “close” cases. Usually he works within a system which provides less

REPORT FOR ANALYTICAL CHEMISTS

Criminal Prosecution If you ever become a victim of crime or if you are mistakenly accused of committing a crime, the scientific disciplines known collectively as the forensic sciences may seem as important, suddenly, as the advances in medical science since Paracelsus.

motivation to look behind a confession than to accept it a t face value and thus t o facilitate an increase in his department’s statistical “accomplishments.” T h a t such a circumstance is a serious threat to objectivity cannot be gainsaid. Errors in Eyewitness Testimony

Let us look a t the evidential value of the testimony of eyewitnesses. For what might be considered very good reasons, this category of “direct” evidence is far less persuasive today than formerly. The fall from grace of eyewitness testimony has followed disquieting experience in cases in which sworn eyewitness testimony, like some confessions, has proved to be in error. Cases can be cited in which convi n c i n g 11 umber s of eyewitnesses have sworn t h a t they observed persons, later proved to be innocent, in the act of committing a felony. Kine such eyewitnesses once swore in a court of law that two defendants on trial were seen by each of the witnesses in the act of committing a robbery and murder. Eight of the nine had picked the two defendants out of what appeared to have been a well-conducted lineup. During the course of the trial, in which the two defendants had all but abandoned hope of acquittal, an astute newsman, once again, led the police to the actual robbers. T h e culprits had disposed of the victimized concern’s moneybags in the basement of the building in which the robbers lived. Each of the nine

witnesses who previously had identified the two earlier defendants later identified the true robbers. For some years, Xew York City banks were victimized by a check forger who regularly passed checks in very large amounts. One day a number of Wall Street banks were defrauded by this man of very large sums. Police were lead to suspect a certain hlr. “A,” an unexceptional suburbanite husband and father of two children. l l r , “,4”happened to be present on the “Street” that day. Six persons who had had direct contact with the forger identified l l r . “A” as the person who had appeared a t their banks and had negotiated the fraudulent instruments in their presence. It was only after seven years in prison that Mr. “A” was exonerated and released as a result of the identification of the real forger through an FBI laboratory analysis of the handwriting on the checks. 11r. “A” died within a year of his release from prison. Tl7hy was eyewitness testimony in error in these instances? The following may help to explain it. When human society was younger, individuals in their daily lives numbered among their acquaintances much larger percentages of the populations of their communities than is possible today. As a consequence, when an event was witnessed in former times, it was a case of the witness’s observing a friend or relative or someone whom the witness recognized. With increases in the numbers of people

populating our cities and towns, a witness who sees a total stranger in the act of passing a fraudulent check, killing a merchant, or committing some other reprehensible act, too often cannot be relied upon to retain an accurate mental image of the criminal. There is an old adage t o the effect that “Murder will out!” It is a homely way of saying that the truth of the matter, regardless of how obscure it may be, will in time be clearly exposed for all to see. The real weaknesses of the classical methods, as was said earlier, would appear to lie largely in the imperfections in the circumstances of their use and from faulty understanding of the inherent weaknesses and strengths of the methods. Now, admittedly, if it is a factand it seems to be a demonstrated one-that confessions and eyewitnesses are especially susceptible to abuse, then certainly the widespread negative judicial reaction is justified. What is offered in their stead? Physical Evidence

-4s the courts rely more and more on scientific evaluation of physical evidence, what assurance is there that this kind of evidence will not also be misused? T o avoid such misuse, there are several necessary conditions: There must, first and foremost, be an uncompromising dedication to finding the truth on the part of the examining scientist and everyone else involved in t h e


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investigation, prosecution, and adjudication processes. There must be a high level of sophistication on the part of the scientist, the laboratory administration, the prosecutor, and the presiding judge, not to mention the defense attorney. This would include a keen awareness of the state of the art and possible pitfalls of each of the many categories of physical evidence encountered. But all of the sophistication and expertise which can be mustered can be brought to naught or worse in a climate in which those who play the crucial roles are wedded to one side or the other in the criminal justice process more firmly, perhaps, than to the cause of justice itself. The adversary system in which any method for obtaining the facts of a case must be used with the resultant excesses of zeal sometimes observed indeed may well be the one single cause of the problems experienced with direct evidence. Who is to say that the courts will not have equally misleading results from biased “analyses” of physical evidence, results which will be the more heinous for their aura of “science?” A broader and firmer link with the Nation’s universities may help this aspect of the situation. One shudders to contemplate what would be the likely quality of medicine if there were no medical schools, or if there were only as few universities providing the necessary support for education and research in medicine as now provide programs in the forensic sciences, as such.

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T h a t a misuse of the scientific analysis of physical evidence comparable to the misuse of confessions and witnesses is possible on a serious scale may be observed in a number of cases which have come to light in which misinterpretation of data obtained in the examination and evaluation of physical evidence ~ occurred. ~ has These cases reveal serious defects in the professional preparation of investigators and of laboratory experts. Too often the cloak of expertise is gratuitously conferred on a poorly trained or untrained (in a scientific sense) police officer by a

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hard-pressed police administrator. The expert thus created by executive fiat has little time and few opportunities to upgrade his training. The work loads of the Nation’s crime laboratories are extremely heavy and are growing a t a fast pace apparently due to the court decisions in Miranda and other cases. Present work loads predictably would be even larger if currently requested examinations could be conducted. Investigators soon learn that certain examinations cannot be handled. There is no point in repeating these requests. Crime laboratory personnel can ill afford to take time from their case loads to acquaint themselves with the developments in the seiences or to obtain needed training even if enough adequate education and training programs were offered by the colleges and universities of the Nation. These institutions of learning, with a few notable exceptions, have too long ignored society’s needs in law enforcement education and training. High-quality educational programs in the disciplines of the crime laboratory, as such, are offered by even fewer institutions in the Nation’s academic community. Little wonder that there is what appears to be a monumental failure of communication between the academic and law enforcement communities. A contributing factor may be the innocence of much of the funding community. Foundations seem to be unaware that the forensic sciences constitute a valid academic area and that, in these sciences, there is enormous potential for addressing some of the more serious deficiencies of the criminal justice process and that this area is suffering, in its turn, from staggering problems due largely to chronic academic, governmental, and foundation community neglect. Standards Are Needed

If we prescind from the foregoing and turn to an examination of the heart of the workings of physical evidence evaluation, we find t h a t standards-setting is a major problem. There is little evidence of wide-spread agreement, for ex(continued on p a g e 47A) Circle No. 108 on Readers’ Service Card

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ample, as to the extent of the qualitative and quantitative data extractable from soil evidence by the more advanced techniques which might safely be relied upon to provide the bases for source or origin determinations at useful levels of specificity. Identifying those acceptable and alternate laboratory procedures for obtaining data from each kind of evidence amenable to measurable data extraction may aid the courts in their efforts t o exclude incompetent testimony. Standard reference materials to serve widely separated laboratories may speed the handling of cases and raise the quality of their examinations. Other needs are for: 1. A multidiscipline approach to a better understanding of the scholarly legitimacy of the Ydentification” process as a scientific procedure for determining with as high a level of specificity a s possible the source of an item of questioned evidence in terms of comparable items of known source. 2. Programs of background sampling and data collection essential to the evaluation process in the de-

termination of just how unique a questioned piece of evidence actually is. 3. Broad check sample programs which would serve to keep individual experts informed as t o their true levels of expertise as compared with their fellows in a given area or with a given analytical method. 4. Programs to attract the better college graduates into the crime laboratory disciplines. 5 . Professional education and training programs such as those which have brought medicine to the professional level it has achieved and would promote the continuing close rapport between the academic community and the professional practitioners in the crime laboratories. 6. Programs of public education t o recognize the importance of competent examination and evaluation of physical evidence t o the proper administration of justice. 7. Programs to alert the general public and the foundation community to the need to be informed in the Forensic Sciences. 8. Curricula improvement in our

Joseph M. English is Director of the Forensic Sciences Center in the Institute of Criminal Law and Procedure, Georgetown University L a w Center. H e is also: assistant professor, forensic pathology, in the department of pathology, Georgetown University School of Medicine; adjunct professor in the Georgetown University Law School; and adjunct professor in the American University Center for the Administration of Criminal Justice. Mr. English received his B.S. degree at St. Joseph’s College, Philadelphia, Pa., in 1939 and his M.A. degree a t George Washington University, Washington, D . C., in 196Y. He served on the staff of the F B I Laboratory, Document Section, from 1942 to 1966 when he joined the Institute of Criminal Law, Georgetown University Law Center, to establish the Forensic Sciences Center. He is active in the American Academy of Forensic Sciences, the A A A S , the International Association of Chiefs of Police, Phi Delta Kappa, Society of Former

Special Agents of the F B I , and the Chesapeake B a y Chapter of the International Association for Identification. H e is chairman of the steering committee of the American Society for Testing Materials which is in the process of organizing a new permanent committee of A S T M in the forensic sciences. This month he is chairing the forensic sciences session at the Eastern Analytical Symposium, November 19, N e w York, N . Y . Circle NO. 15 on Readers’ Service Card


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law schools to furnish those students who, in their professional lives, will be required to act on information furnished by scientific experts. 9. Curricula improvement in our medical and nursing schools for those who will be in positions t o preserve or to destroy utterly, evidence which could lead to the identification of an assailant. (See also Rose, John C., M.D. “Medical Centers and Crime Laboratories,” Proceedings of T h e First Georgetown

Conference o n Surface Analysis, October, 1969.) Many rapists have gone free to strike repeatedly because emergency room hospital per-

sonnel had no professional preparation to alert them to the importance of avoiding commingling of articles of the victim’s clothing, and obtaining adequate and proper swab specimens while ensuring against evidential contamination and disturbance of chain of custody. These are but a few of the problems the Nation faces in law enforcement and the preservation of a just order. They represent some of the more important problems which grow directly out of those of the Nation’s crime laboratories. Other problems exist in the state of research and the consequent state

of the a r t in a number of the crime laboratory disciplines, in the state of expert qualification and certification standards, in legal education, and the continuing professional preparation of law students, lawyers, and judges in the sophisticated utilization of expert testimony. What is most important is t h a t informed Americans, especially scientists as well as all others who share a dedication to the improvement of the administration of justice and of the human condition, be informed in this area, as in all others which are crucial to the wellbeing of society and its members.

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Forensic science in criminal prosecution - ACS Publications

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