A scientist and a lawyer walk into a courtroom …

July 22nd, 2016
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By Dr David Klatzow and Peter Otzen

‘No less dangerous are the mistakes of [forensic] expert witnesses. Blind confidence of the court in the authority of expert witnesses is responsible for many a wrongful conviction’ – Max Hirschberg (Max Hirschberg ‘Wrongful Convictions’ (1940) Rocky Mountain Law Review 20).

The article by Dr Tapiwa Shumba ‘Legal forensic education: Crossing the divide between law and science’ (2016 (March) DR 14) has raised the inevitable question of whether our country’s professionals are at all skilled enough to address the scientific needs of the legal system. Dr Shumba writes that ‘[t]he invasion of science in our criminal justice system is a global phenomenon’ and seemingly indicates a degree of ambivalence towards the scientific fraternity which ‘invades’ the legal world.

Several things must be pointed out in response to Dr Shumba. Many, if not most, criminal cases require a significant scientific component in order to link a suspect to the offence. Less well known and appreciated is the central role that forensic science plays in civil matters. Many insurance claims ranging from –

  • fires (arson);
  • fraud (document examination);
  • equipment failure (forensic engineering);
  • accident reconstruction (forensic physics); and
  • more require a proper understanding of forensic science.

There is, therefore, no invasion of science into law; science and law have always existed together, and it is science which gives legal practitioners the power to turn on the lights and to reveal the truth to the courts in many complex matters.

Dr Shumba later states that there is a need to mitigate the effects of the new wave of scientific advancements impacting on the administration of justice. If anything needs to be mitigated, the real need is to mitigate the effects of state-caused incompetence in the forensics departments, and to ensure that justice is neither delayed, nor denied, merely on the grounds of scientific ineptitude among state employees. Such mitigation can only come from a concerted effort by legal practitioners and the courts.

When it comes to matters, which have a scientific aspect, legal practitioners are prone to rely either on their own understanding of science, or defer to the inevitable expert, if the client can afford the cost of the latter. The unfortunate consequence of legal practitioners failing to understand science fully is that they can be only too easily persuaded to accept an expert’s point of view, or if the practitioner is acting alone, is personally unable to intertwine law and science for the benefit of their client. What legal practitioners need to know is that science is an area filled with pitfalls and uncertainty, and that it is a path over which many self-proclaimed experts themselves are subject to stumble over misconceptions and errors.

Although some universities have now started stand-alone forensic science courses, few of these are incorporated into the legal curricula, which in itself presents problems. Much of what passes for forensic science training is an apprentice-like instruction by older practitioners, often with little or no formal scientific education. Much of this has come under severe scrutiny following the publication of the National Academy of Science Report ‘Strengthening Forensic Science in the United States – A Path Forward’ (National Research Council of the National Academies 2009 (www.ncjrs.gov, accessed 29-6-2016)). This followed on from the debacle where the Federal Bureau of Investigation incorrectly identified a fingerprint from the Madrid Bombing belonging to Brian Mayfield, who was a lawyer in the United States and incidentally had not left the country for many years (see commentary by Paul C Giannelli ‘The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Laboratories’ (1997) 4 Va J Soc. Pol’y & L 439).

Much of the comparative science used in ballistics, bite mark analysis, fingerprinting and tool mark analysis has been shown to be highly subjective and easily swayed by irrelevant collateral information. In a 2006 paper by Dr Itiel E Dror and David Charlton ‘Why experts make errors’ 2006 56(4) Journal of Forensic Identification 600 – 615, Dr Dror outlines how he labelled certain prints as having come from the (by now notorious) Mayfield case (‘A review of the FBI’s handling of the Brandon Mayfield case www.oig.justice.gov, accessed 7-7-2016) and sent them, labelled as Mayfield’s prints, to five senior fingerprint examiners who had previously linked those prints to a certain suspect in the Mayfield case. Once (falsely) informed that the prints were Mayfield’s the examiners were unable to link the prints to the same suspect that they had previously linked them to. This all in a subject which claims complete accuracy and certainty. Similar fingerprint misidentification occurred in the case of Shirley McKie (‘Scottish Parliament Justice 1 Committee Report: Inquiry into the Scottish Criminal Record Office and Scottish Fingerprint Service’ www.archive.scottish.parliament.uk, accessed 7-7-2016) in Scotland (David Klatzow Justice Denied (Penguin Random House South Africa 2014) at 53).

The advent of forensic DNA analysis has come as a mixed blessing to the forensic science community. It has been able to shine a brilliant light into some dark corners of forensics, resulting in a discrediting of much ‘forensic science’, which has convicted many innocent people.

A significant part of the problem derives from forensic scientists who may be incompetent, unquestioning and in some cases, downright fraudulent. Another major factor is the inability of the legal profession (with some exceptions) to penetrate the veil of bogus ‘forensic science’. One needs only to read the contemporary literature to see that much cross-examination cuts no deeper than a superficial scratch.

We now know that much of what passed as forensic science, including, eyewitness identifications; confessions; and the material which purports to ‘strengthen forensic science’ has been shown to have metaphoric feet of clay. A new generation of lawyers, which are prepared and able to understand the deeper workings of science, will find that their ability to cross-examine and get to the ultimate truth is vastly strengthened by a basic understanding of scientific and forensic principles. The first step, however, is for legal practitioners to gain the necessary scientific skills while still at university.

Professor Meintjies van der Walt is a pioneer of this way of thought in South Africa. Her line of teaching needs to be instituted at every faculty. The purpose is not to make lawyers into scientists but to create an informed fraternity who know when to seek scientific help, and who are able to extract the fullest from such scientific advice.

Our universities should divorce their forensic departments from the state and the police, and should begin to question dogma rather than teach it, particularly when so much of that dogma is plainly wrong.

Rather than shunning the relatively unknown ugly duckling – which is forensics and science – the legal system should encourage the grass root development and use of science and the law, so that the system of precedent and the publication of ground-breaking cases can serve to inform further our legal practitioners and bring justice where it is needed. Only when fully given room to grow, will the ugly duckling of forensic science develop into the swan which it has the potential to be.

Dr David Klatzow BSc (Hons) PhD (Wits) is a forensic scientist and Peter Otzen BSocSc LLB (UCT) is an attorney at Guthrie Colananni Attorneys in Cape Town.

This article was first published in De Rebus in 2016 (Aug) DR 26.

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