The forensic examination of structural fires in Victoria,Australia: Decision-making processes and impact on judicial outcomes

There is a body of published research that has evaluated the contribution of forensic science to the criminal justice system, but many disciplines of forensic science remain unexplored in this regard. The aim of this study was to examine the contribution that forensic fire examination services provide to criminal investigations and court processes in arson cases. Forensic fire examination services differ in a number of ways to the disciplines covered in previous research on the impact of forensic evidence on justice outcomes. Forensic fire examinations involve a combination of scene examination and laboratory analyses, and the results can provide critical evidence of whether an incident that has occurred is a criminal offence (i.e. whether a fire has occurred as the result of an act of arson). Forensic fire examination is also a discipline that has faced challenges and undergone development in recent decades regarding its scientific basis and the issue of contextual bias. In this study, data were collated for 273 structural fires that were examined by the forensic fire services in Victoria, Australia. In this jurisdiction, scene and laboratory forensic services are delivered within short time frames with a focus on providing impartial scientific and investigative services to assist criminal investigations conducted by police. The current dataset was highly skewed in terms of criminal justice outcomes and was not suitable for conducting the planned statistical analyses. Nonetheless, the pattern of findings obtained suggested that the inclusion of forensic evidence which supported the prosecution of arson may be associated with an increased likelihood of suspects being charged and defendants found guilty. Examination of the decision-making process of the forensic fire examiners has provided insight into the variety of evidence that is considered by forensic experts in reaching the important conclusion about the origin and cause of structural fires.     

The barriers to achieving an evidence base for bitemark analysis

Forensic dentistry is the union of two scientific disciplines, both of which are undergoing a renewed scientific rigor. In forensic science the advent of the Daubert ruling has required that judges assess the forensic value of 'expert testimony' ensuring that techniques, methodologies and practices are not only commonly accepted (as was the previous hurdle during the Frye era) but that error rates, assessment of reliability and validation studies are published to support their use. This new degree of judicial scrutiny has been mirrored in the field of dentistry itself, where organisations search and summarise randomised controlled trials in order to recommend best practice and devise clinical care pathways that are firmly grounded in proven scientific research. Despite the obvious drive from both of these professions, forensic dentistry, and in particular the sub-discipline of bitemark analysis, has been remarkably slow to address the obvious deficiencies in the evidence base that underpins this element of forensic science. Reviews of the literature reveal that the vast majority of published works are case reports, and very little primary literature exists. This paper reviews those studies that have assessed aspects of bitemark analysis including the crucial issue of the uniqueness of the human dentition; the application of transparent overlays and the application of statistical probabilities in bitemark conclusions. There are numerous barriers to undertaking high quality research in the field of bitemark analysis, the most important of which is the use of a gold-standard that is acceptable both in terms of diagnostic research but is also forensically relevant. If bitemark analysis is to continue to play a role in the judicial process then there is an urgent need for high quality studies that meet the levels of forensic and scientific scrutiny applied to other disciplines within the criminal justice system. Studies are required to determine not that the human dentition is unique, but how this asserted uniqueness is represented on human skin and other substrates. The error rates associated with the analysis of bitemarks are required on a procedural level as well as an individual practitioner basis and scales and interpretative indices of bitemark severity and forensic significance should be validated and introduced into common use.     

论鉴定结论的证据能力

现代科技的发展带动了司法鉴定在刑事诉讼中的运用和扩大,鉴定结论的危险性与重要性的并存促使人们探寻对鉴定结论证据能力的规范。英美法系对专家证据的可采性强调对其依据方法的考察,大陆法系强调诉讼程序对鉴定结论的制度。在对两大法系鉴定结论证据能力进行详尽分析的基础上,笔者从鉴定人的适格性、鉴定的关联性、鉴定结论的可靠性、鉴定材料的合法性和鉴定的程序性要件上完善我国鉴定结论的证据能力。     

Expert Reliability in Legal Proceedings: “Eeny,Meeny, Miny,Moe, With Which Expert Should We Go?”

Between Expert Reliability refers to the extent to which different experts examining identical evidence make the same observations and reach the same conclusions. Some areas of expert decision making have been shown to entail questions with relatively low Between Expert Reliability, but the disagreement between experts is not always communicated to the legal actors forming decisions on the basis of the expert evidence. In this paper, we discuss the issues of Between Expert Reliability in legal proceedings, using forensic age estimations as a case study. Across national as well international jurisdictions, there is large variation in which experts are hired to conduct age estimations as well as the methods they use. Simultaneously, age estimations can be fully decisive for outcomes e.g. in asylum law and criminal law. Using datasets obtained from the Swedish legal context, we identify that radiologists and odontologists examining knees or teeth images to estimate age seem to disagree within their own disciplines (radiologist 1 v. radiologist 2 or odontologist 1 v. odontologist 2) as well as across different disciplines (radiologist v. odontologist) relatively often. This may have large implications e.g. in cases where only one expert from the respective field is involved. The paper discusses appropriate ways for legal actors to deal with the possibility of lacking Between Expert Reliability. This is indeed a challenging task provided that legal actors are legal experts but not necessarily scientific experts.     

Genomic "dactyloscopy" in the expertise of disputed paternity and the determination of biological relationship

Genome "dactyloscopy" (DNA fingerprinting) is a principally new way of personal identification based on analysis of human genetic material (DNA); the difference in DNA structure of different subjects is the scientific basis of this method. This ensures opportunity to estimate biological relationship of persons positively. The authors were the first to demonstrate using certain expert material the adequacy and potentials of DNA fingerprinting by M 13 probe for medicolegal expert practice in most complicated cases of relationship determination requiring positive identification of paternity and maternity.     

Peer‐Reviewed Forensic Consultation in Practice: Multidisciplinary Oversight in Common Expertise

The fallibility of forensic science consultation is an ongoing and major justice concern. Prospective peer‐reviewed forensic consultation has over 10 years of application in American criminal and civil courts, adapting from the traditional oversight of teaching hospitals, rules of evidence and discovery, conventions of testimony of expert witnesses, and attorneys' overall trial strategy. In systematizing heightened oversight, this process ensures greater accountability in forensic science consultation. The integration of peer reviewers' complementary expertise and experience enhances the sophistication and overall quality of assessment. Forensic examination frequently involves the interface of different specialties. Multidisciplinary peer review augments expert proficiency with that of professional peers having different vantage points from relevant scientific disciplines. This approach ensures greater sophistication of a case inquiry, built‐in accountability, and streamlined processes when multiple experts are necessitated. Here, the authors present examples of several cases and the primary and secondary benefits of this collaborative, rigorous, cross‐disciplinary exercise.     

A forensic visual aid: Traces versus knowledge

In this paper, I introduce the Forensic Field Map (FFM) that provides a two-dimensional view on the forensic field. This field is by definition very broad, encompassing a wide range of scientific areas and activities. The forensic work that supports solving criminal cases ranges from recognizing and preserving traces at crime scenes to explaining forensic results as expert witness in court. This goes hand in hand with the development of scientifically based methods and tooling as well as legal, forensic and laboratory procedures. Although the FFM came into being while developing a (visual) framework for digital forensic investigations, the framework turned out to be generically applicable to other forensic disciplines.     

Wrongful convictions and claims of false or misleading forensic evidence

The results are reported of a study to examine case factors associated with 732 wrongful convictions classified by the National Registry of Exonerations as being associated with “False or Misleading Forensic Evidence.” A forensic error typology has been developed to provide a structure for the categorization and coding of factors relating to misstatements in forensic science reports; errors of individualization or classification; testimony errors; issues relating to trials and officers of the court; and evidence handling and reporting issues. This study, which included the analysis of 1391 forensic examinations, demonstrates that most errors related to forensic evidence are not identification or classification errors by forensic scientists. When such errors are made, they are frequently associated with incompetent or fraudulent examiners, disciplines with an inadequate scientific foundation, or organizational deficiencies in training, management, governance, or resources. More often, forensic reports or testimony miscommunicate results, do not conform to established standards, or fail to provide appropriate limiting information. Just as importantly, actors within the broader criminal justice system—but not under the purview of any forensic science organization—may contribute to errors that may be related to the forensic evidence. System issues include reliance on presumptive tests without confirmation by a forensic laboratory, use of independent experts outside the administrative control of public laboratories, inadequate defense, and suppression or misrepresentation of forensic evidence by investigators or prosecutors. In approximately half of wrongful convictions analyzed, improved technology, testimony standards, or practice standards may have prevented a wrongful conviction at the time of trial.     

论专家辅助人意见——以刑事辩护为视角的分析

我国2012年新《刑事诉讼法》首次设立专家辅助人制度，对鉴定意见的质证提供了技术上的支持，对于刑事辩护来说意义重大。从证据法的角度看来，专家辅助人意见具有言词证据、意见证据、弹劾证据的多重属性，因此意见的内容应围绕鉴定意见中的专门性问题，并结合《刑事诉讼法》及相关司法解释对鉴定意见的审查判断规则来提出；而法庭对于鉴定意见的审查也应从准入资格与可靠性两方面进行，以免专家辅助人意见替代鉴定意见来主导审判。     

法证科学领域的决策

随着法证DNA证据以及它所适用的概率模型日益凸显,反映了传统法证科学的局限性,并使人们对法证科学领域的决策产生了越来越多的质疑,焦点集中在对结论的解读方式和实际运用。分析表明,科学证据的本质不是绝对性或确定性的,而是概率性的;同时,事实审判者需要基于这些概率性的证据对事实作出明确的决定。因此,对于法证科学领域的决策,应当是专家在一系列归纳得出的特定假设基础上,就研究结果的概率进行恰当的报告,由事实审判者承担对概率作出决断的任务。     

A review of quality procedures in the UK forensic sciences: What can the field of digital forensics learn?

With a reliance on the various forms of forensic science evidence in complex criminal investigations, the measures for ensuring its quality are facing increasing scrutiny. Improvements to quality management systems, to ensure both the robust application of scientific principles and the accurate interpretation and reporting of results, have arisen as a consequence of high-profile rebuttals of forensic science evidence, combined with process improvements driven by evaluation of current practice. These improvements are crucial to ensure validity of results as well as providing assurance for all those involved in the Criminal Justice System. This work first examines the quality management systems utilised for the examination and analysis of fingerprint, body fluid and DNA evidence. It then proceeds to highlight an apparent lack of comparable quality assurance mechanisms within the field of digital forensics, one of the newest branches of forensic science. Proposals are provided for the improvement of quality assurance for the digital forensics arena, drawing on the experiences of, and more well-established practices within, other forensic disciplines.     

Forensic identification science evidence since Daubert: Part I--A quantitative analysis of the exclusion of forensic identification science evidence

The U.S. Supreme Court decisions in Daubert v. Merrell Dow Pharmaceuticals Inc. and Kumho Tire Co. Ltd. v. Carmichael transformed the way scientific expert evidence was reviewed in courts across the United States. To gauge the impact of these rulings on the admission of forensic identification evidence, the authors analyzed 548 judicial opinions from cases where admission of such evidence was challenged. Eighty-one cases (15%) involved exclusion or limitation of identification evidence, with 50 (65.7%) of these failing to meet the "reliability" threshold. This was largely because of a failure to demonstrate a sufficient scientific foundation for either the technique (27 cases) or the expert's conclusions (17 cases). The incidence of exclusion/limitation because of a lack of demonstrable reliability suggests that there is a continuing need for the forensic sciences to pursue research validating their underlying theories and techniques of identification to ensure their continued acceptance by the courts.     

Combining evidence in complex cases - a practical approach to interdisciplinary casework

Activity level evaluations, although still a major challenge for many disciplines, bring a wealth of possibilities for a more formal approach to the evaluation of interdisciplinary forensic evidence. This paper proposes a practical methodology for combining evidence from different disciplines within the likelihood ratio framework. Evidence schemes introduced in this paper make the process of combining evidence more insightful and intuitive thereby assisting experts in their interdisciplinairy evaluation and in explaining this process to the courts.When confronted with two opposing scenarios and multiple types of evidence, the likelihood ratio approach allows experts to combine this evidence in a probabilistic manner. Parts of the prosecution and defence scenarios for which forensic science is expected to be informative are identified. For these so called core elements, activity level propositions are formulated. Afterwards evidence schemes are introduced to assist the expert in combining the evidence in a logical manner. Two types of evidence relations are identified: serial and parallel evidence. Practical guidelines are given on how to deal with both types of evidence relations when combining the evidence.     

The distinction between discriminability and reliability in forensic science

Forensic science plays an increasingly important role in the criminal justice system; yet, many forensic procedures have not been subject to the empirical scrutiny that is expected in other scientific disciplines. Over the past two decades, the scientific community has done well to bridge the gap, but have likely only scratched the tip of the iceberg. We offer the discriminability-reliability distinction as a critical framework to guide future research on diagnostic-testing procedures in the forensic science domain. We argue that the primary concern of the scientist ought to be maximizing discriminability and that the primary concern of the criminal justice system ought to be assessing the reliability of evidence. We argue that Receiver Operating Characteristic (ROC) analysis is uniquely equipped for determining which of two procedures or conditions has better discriminability and we also demonstrate how estimates of reliability can be extracted from this Signal Detection framework.     

Expert scientific evidence under the adversarial system. A travesty of justice?

The procedures for providing courts with expert scientific evidence under the adversarial and inquisitorial systems are reviewed with special reference to the role of the Home Office as the principal purveyor of such evidence at English law. It is suggested that recent advances in technology must lead to increasing interdependence of the various disciplines involved and that the artificial separations which presently exist, notably between forensic pathology and science, are unsatisfactory. Attention is called to the situation in many European countries where medico-legal institutes provide the courts with comprehensive expert scientific services which are non-confrontational and which do not place experts in the position of appearing for one or other of the parties to an action.     

A review of the historical use and criticisms of gait analysis evidence

The use of gait analysis is a well-established facet of practice for many professions and a fundamental aspect of clinical practice. In recent times, gait analysis evidence has emerged as a new area of forensic practice. As its use has continued to spread and develop, the area of work has come under close scrutiny and subsequent criticism. The purpose of this paper is to examine the historical use of gait analysis evidence and consider the criticisms of this work. Through the use of the historical records of cases within the public domain it has been determined that gait analysis as evidence was first presented in court over 175?years ago, although it has only been utilized by experts in more recent times. The quality of analysis underpinning such evidence has been variable, and has been undertaken by both non-expert and expert witnesses. The work undertaken by expert witnesses appears to have been both non-scientific and scientific in nature, though there is limited reporting of cases involving scientific approaches. Given the variation in the quality of the methodologies utilized, there is the potential for confusion within the courts, where it may be difficult for the judge or jury to determine the appropriate weight that can be attributed to the evidence. It is concluded that future publications should explore the scientific basis of forensic gait analysis to evaluate standards, reliability and validity, as well as reporting the methodologies utilized in relevant cases in the field. It is also recommended that courts consider in greater depth an expert's theoretical approach and experience prior to admitting their evidence. The publication of ‘Forensic gait analysis: a primer for courts’, although limited in some aspects of its consideration of practice, is a welcome addition to the information available for guidance.     

Forensic Gait Analysis and Recognition: Standards of Evidence Admissibility

Gait is one biological characteristic which has attracted strong research interest due to its potential use in human identification. Although almost two decades have passed since a forensic gait expert has testified to the identity of a perpetrator in court, the methods remain insufficiently robust, considering the recent paradigm shift witnessed in the forensic science community regarding quality of evidence. In contrast, technological advancements have taken the lead, and research into automated gait recognition has greatly surpassed forensic gait analysis in terms of the size of acquired datasets and demographic variability of participants, tested variables, and statistical evaluation of results. Despite these advantages, gait recognition presents with different problems which are yet to be resolved. Therefore, courts should treat gait evidence with caution, as they should any other form of evidence originating from disciplines without fully established codes of practice, error rates, and demonstrable applications in forensic scenarios.     

Educating Jurors about Forensic Evidence: Using an Expert Witness and Judicial Instructions to Mitigate the Impact of Invalid Forensic Science Testimony

Invalid expert witness testimony that overstated the precision and accuracy of forensic science procedures has been highlighted as a common factor in many wrongful conviction cases. This study assessed the ability of an opposing expert witness and judicial instructions to mitigate the impact of invalid forensic science testimony. Participants (N = 155) acted as mock jurors in a sexual assault trial that contained both invalid forensic testimony regarding hair comparison evidence, and countering testimony from either a defense expert witness or judicial instructions. Results showed that the defense expert witness was successful in educating jurors regarding limitations in the initial expert's conclusions, leading to a greater number of not-guilty verdicts. The judicial instructions were shown to have no impact on verdict decisions. These findings suggest that providing opposing expert witnesses may be an effective safeguard against invalid forensic testimony in criminal trials.