法医学鉴定实践中的伦理考量

法医学鉴定的对象是人及与人相关材料,因此在法医学检案实践中需要考虑伦理问题。基于法医学鉴定中的公平正义、尊重、真相告知三大基本原则,进一步衍生出法医学检案实践活动的具体伦理要求,即法医学鉴定的称职性、对鉴定涉及案件及其当事人伦理考虑、如何处理案件检材。然而当前法医学鉴定却存在部分法医鉴定人不称职、重技术轻程序、鉴定机构选择出现争议、利益输送与利益冲突等问题。笔者针对以上问题提出相应对策,并重点讨论三大矛盾,保证法医学鉴定称职性。     

Three faces of justice: Competing ethical paradigms in forensic psychiatry

Respect for justice has traditionally been an essential principle of health care ethics. However, many bioethical accounts of justice focus only on distributive justice, and how resources for health care should be allocated. In this article, I will argue that the practice of forensic mental health care requires clinicians to engage with justice in three additional and different ways: justice as liberty and fairness; retributive justice and protection of the vulnerable; and justice as the promotion of virtue. I will argue that British forensic psychiatry favours retributive and protective justice; in contrast to a libertarian approach to forensic practice in the United States. I discuss how respect for justice as support for virtue complements therapeutic work with offenders, which aims at the development of pro‐social character. I will conclude that without respect for justice as virtue, there is a danger that clinical forensic psychiatry risks doing harm to patients and bringing the profession into disrepute.     

Human rights, ethical principles, and standards in forensic psychology

Human rights create a protective zone around persons and allow them the opportunity to further their valued personal projects without interference from others. This article considers the relationship between human rights and the general ethical principles and standards contained in the American Psychological Association's (APA's) code of ethics as applied to the forensic domain. First, it analyzes the concept of human rights, their structure, and their justification. Second, it briefly describes the APA's most recent code of ethics and the principles and standards that compose it. Third, it concludes by explicitly examining the relationship between the present human rights model and the APA's code, demonstrating how it is able to provide an additional ethical resource for forensic practitioners in their clinical work and so deepen their ethical sensibilities and decision making. Finally, the article presents a case study and discusses the human rights issues confronting practitioners inherent in such situations.     

Clinical presentation of malingerers diagnosed by experienced forensic psychologists

Little is known about the incidence of malingering or the diagnostic criteria for malingering employed by forensic clinical psychologists conducting pretrial evaluations for the criminal justice system. The clinical presentations of 39 criminal defendants diagnosed as malingering psychotic symptoms were contrasted with 25 defendants diagnosed as genuinely psychotic. The incidence of diagnosed malingering was 8% in a series of 314 consecutive evaluations. Malingerers differed from psychotics on 14 of 24 clinical presentation variables, including measures of general presentation, affect, hallucinations, delusions, and formal thought disorder. Results indicate consistent clinical features associated with the diagnosis of malingered psychosis.A summary of this study was presented at the 1988 Annual Convention of the American Psychological Association in Atlanta, Georgia. We very much appreciate the contribution made by the six forensic clinical psychologists at the Michigan Center for Forensic Psychiatry who volunteered to participate in this study.     

Ethical concerns expressed by forensic psychiatrists

A survey was made of American Academy of Forensic Sciences (AAFS) forensic psychiatrists to evaluate whether there is concern among them about potential ethical problems in criminal justice work. Of the respondents, 93.8% had encountered such problems. The main concerns indicated were about those psychiatrists who become a "hired gun," become an advocate, do not give an honest opinion, or have problems with confidentiality. The need for ethical guidelines and further debate about ethical issues is presented.     

Legal perceptions of forensic DNA profiling part I: a review of the legal literature

A forensic biologist is usually involved in the criminal justice system process somewhere between the police and the legal system, interacting in a practical context regularly and extensively with both. Forensic DNA research and development commonly involves initiatives that encroach into the neighbouring domains of the law enforcement or legal agencies. Despite this level of association, establishing meaningful cross-disciplinary communication and understanding within the justice system remains a challenge. As an example, there is an abundance of literature relating to forensic DNA profiling in legal and criminological periodicals. Such journals are perhaps outside the regular reading of forensic scientists and much of the legal discussion appears to go unnoticed. This situation is understandable; however, it is also undesirable particularly as forensic DNA developments are intertwined with significant changes in legislation and contentious issues of privacy, civil liberty and social justice. This paper attempts to address this shortcoming directly by summarising - from the viewpoint of a forensic scientist - some of the discussion in the legal literature. In particular the review focuses on discussion raising ideological and ethical concerns. Awareness of these views is of relevance to forensic science. It assists us to accurately place DNA evidence into context and to develop its role in achieving the broader criminal justice system objectives. Understanding the discussion also provides a way to enter the debate and communicate at an appropriate level the true potential of DNA to the legal community.     

Russian and Soviet forensic psychiatry: Troubled and troubling

Russian forensic psychiatry is defined by its troubled and troubling relationship to an unstable state, a state that was not a continuous entity during the modern era. From the mid-nineteenth century, Russia as a nation-state struggled to reform, collapsed, re-constituted itself in a bloody civil war, metastasized into a violent “totalitarian” regime, reformed and stagnated under “mature socialism” and then embraced capitalism and “managed democracy” at the end of the twentieth century. These upheavals had indelible effects on policing and the administration of justice, and on psychiatry's relationship with them. In Russia, physicians specializing in medicine of the mind had to cope with rapid and radical changes of legal and institutional forms, and sometimes, of the state itself. Despite this challenging environment, psychiatrists showed themselves to be active professionals seeking to guide the transformations that inevitably touched their work. In the second half of the nineteenth century debates about the role of psychiatry in criminal justice took place against a backdrop of increasingly alarming terrorist activity, and call for revolution. While German influence, with its preference for hereditarianism, was strong, Russian psychiatry was inclined toward social and environmental explanations of crime. When revolution came in 1917, the new communist regime quickly institutionalized forensic psychiatry. In the aftermath of revolution, the institutionalization of forensic psychiatry “advanced” with each turn of the state's transformation, with profound consequences for practitioners' independence and ethical probity. The abuses of Soviet psychiatry under Stalin and more intensively after his death in the 1960s–80s remain under-researched and key archives are still classified. The return to democracy since the late 1980s has seen mixed results for fresh attempts to reform both the justice system and forensic psychiatric practice.     

Cybersex with minors: forensic implications.

This paper is designed to assist forensic psychiatrists/psychologists who evaluate adults who commit sexual crimes against children on the Internet. The typical offender is an adult male who logs onto the Internet and enters a chat room in which children congregate. Unbeknownst to the offender, undercover police officers are posing as minors in the chat rooms. The undercover officer (pretend kid) and offender engage in increasingly explicit, sexual conversation; the offender may transmit erotic photographs to the undercover officer and/or arrange to meet at a motel in order to have sexual intercourse. The authors will discuss the relevant legal, clinical, and ethical aspects of examining these offenders, and describe specific cases that the author (2) evaluated.     

Interdisciplinary approaches to the teaching of forensic science in the Forensic Science Undergraduate Program of the National Autonomous University of Mexico,before and after COVID-19

In 2013, the Forensic Science Undergraduate Program (FSUP) at the National Autonomous University of Mexico was created in response to an alarming criminal situation in Mexico, as well as to the radical reform of its criminal justice system. Its mission is to educate and train ethical, critical, and humanistic forensic scientists capable of conducting inquiries that meet scientific quality standards and assist the justice system in firmly linking legal rulings to the available evidence. At the time, it was the first such program in the country, and the contributions that interdisciplinary forensic scientists could make to criminal investigations were largely unknown among forensic and legal practitioners. During its existence, providing an interdisciplinary, competence-based education to students has been one of the main challenges. To overcome it, teaching and assessment approaches—centered on the achievement of specifically forensic competencies as learning outcomes and the integration of forensic disciplines towards the resolution of simulated cases—have been devised to help develop the professional skill set expected of graduates. The COVID-19 pandemic led to adapting these approaches to distance or hybrid modes of learning, increasing their versatility and enriching the pedagogic repertoire of the FSUP. Currently, the main impact of the program lies in the successful incorporation of some of its graduates to agencies belonging to or related to the criminal justice system, such as the National Prosecutor’s Office, the Commission for Truth and Justice for the Ayotzinapa Case, and the National Commission for the Search of Missing and Disappeared Persons, among others.     

Perceptions of ethical problems by forensic psychiatrists

A survey was undertaken of the opinions of two groups of forensic psychiatrists to determine their views regarding forensic ethical issues. Although AAPL has made significant strides for our profession by adopting ethical guidelines, some important issues have not yet been addressed, as revealed by our survey. Included were items heretofore considered too "controversial" for incorporation into guidelines, as well as items from the APA ethical framework. All APA items were evaluated as addressing ethical problems. The majority of respondents also viewed most of the "controversial" items as confronting relevant ethical problems, thereby suggesting their inclusion, in some form, in the profession's guidelines. They also appeared to favor retention of many traditional medical ethical values when functioning as a forensic psychiatrist. Clear selective discrimination existed among differing death penalty facets. Since AAPL at present does not wish to conduct its own ethics hearings, the AAPL guidelines as well as the items supported in this paper's survey would best be translated into a form consistent with the APA framework. In this way, AAPL's guidelines and also the new suggested items could readily be coordinated within the APA framework and could play a role in the APA local district branch enforcement process.     

Legal and ethical considerations of forensic anthropological research

In the UK, Forensic Anthropology is maturing rapidly, consequently demanding discussion of previously overlooked yet fundamental principles of this discipline. UK law and ethics are interpreted from a forensic anthropological standpoint. First, the influence of UK law and ethics on the stages of forensic anthropological research (the collection, analysis and storage of human remains) are discussed. Existing ethical codes of conduct are investigated for their relevance to researching forensic anthropologists. It is concluded that: when appropriately interpreted, UK law and ethics are extremely influential on forensic anthropological research; debate within this area is required; and that an understanding of the law and ethical thought is vital for the successful growth of forensic anthropology in the UK.     

‘Tolling for the luckless,the abandoned and forsaked’: Therapeutic jurisprudence and international human rights law as applied to prisoners and detainees by forensic psychologists

Objectives. There has been an explosion of interest in therapeutic jurisprudence as both a filter and lens for viewing the extent to which the legal system serves therapeutic or anti‐therapeutic consequences. However, little attention has been paid to the impact of therapeutic jurisprudence on questions of international human rights law and the role of forensic psychologists. The paper aims to provide an intersection between human rights, therapeutic jurisprudence, and forensic psychology. Method. Human rights are based on legal, social, and moral rules. Human rights literature generally considers legal rights but such policy statements do not provide principles to guide forensic psychologists in addressing moral or social rights. Therefore, a framework to guide forensic psychologists is required. Conclusion. As duty‐bearers, forensic psychologists need to address the core values of freedom and well‐being in rights holders (in this instance, prisoners and detainees with a mental illness). The paper proposes that human rights principles can add to the normative base of a therapeutic jurisprudence framework, and in‐turn, therapeutic jurisprudence can assist forensic psychologists to actively address human rights.     

法证披露模型:应当向法证专家披露什么和法证专家应当披露什么?

法律上的披露问题主要集中在检控方向辩护方提供或者隐瞒了哪些证据。在本文中,我们将披露的概念扩展到更广泛的情境下,在这种情境下,披露失误可能导致误判。我们引入了一个概念模型,即“法证信息披露”,它涉及哪些信息应该披露给法证检验人员,以及法证检验人员应当披露哪些信息。本文全面概述了四类利益相关者的动态交互:法证服务、调查、法律和外部利益相关者。我们通过五个问题讨论了法证信息披露模式的有效实施,即如果要向法证检验人员或者由法证检验人员提供最好的信息,以提高法证决策质素,并尽量减少偏差,则什么时候进行披露?披露什么?如何披露?向谁披露?为什么披露?     

The role of psychological testing in forensic assessment

Despite the apparent widespread use of psychological tests in evaluations performed by psychologists to assist legal decision makers, there has been little critical but balanced examination of the appropriate parameters for the forensic use of such tests. The following discussion examines the nature of legal decision making, and concludes that the primary legal criterion for the adminissibility of psychological testing isrelevance to the immediate legal issue or to some underlying psychological construct. Assuming thataccuracy is a more consistent concern for psychologists performing such evaluations, the criticisms of various commentators are discussed. Some criticisms appear appropriate and are incorporated into a set of proposed guidelines for the use of psychological tests in forensic contexts. Other criticisms appear misplaced, however, and the call for a whole sale ban on psychological testing in the forensic context is rejected.     

Distinguishing between forensic science and forensic pseudoscience: Testing of validity and reliability,and approaches to forensic voice comparison

In this paper it is argued that one should not attempt to directly assess whether a forensic analysis technique is scientifically acceptable. Rather one should first specify what one considers to be appropriate principles governing acceptable practice, then consider any particular approach in light of those principles. This paper focuses on one principle: the validity and reliability of an approach should be empirically tested under conditions reflecting those of the case under investigation using test data drawn from the relevant population. Versions of this principle have been key elements in several reports on forensic science, including forensic voice comparison, published over the last four-and-a-half decades. The aural–spectrographic approach to forensic voice comparison (also known as “voiceprint” or “voicegram” examination) and the currently widely practiced auditory–acoustic–phonetic approach are considered in light of this principle (these two approaches do not appear to be mutually exclusive). Approaches based on data, quantitative measurements, and statistical models are also considered in light of this principle.     

The forensic expert witness--an issue of competency

Scientists submitting expert opinions within the legal system are expected to be knowledgeable in the forensic aspects of their particular science, as well as to be ethical and unbiased. Scientists are seldom able to decline a request to provide an expert opinion in their field, even when their forensic expertise is minimal. The competence of scientists providing expert opinions in forensic cases is reviewed here. Three examples of the perils of uninformed "expertise" in forensic biology, medicine and anthropology are presented.     

Scientific standards for studies in forensic genetics

Forensic molecular genetics has evolved from a rapidly developing field with changing technologies into a highly recognized and generally accepted forensic science, leading to the establishment of national DNA databases with DNA profiles from suspects and convicted offenders. DNA evidence has taken a central role by carrying a significant weight for convictions, as well as by excluding innocent suspects early on in a criminal investigation. Due to this impact on the criminal justice system, guidelines for research in forensic genetics have been introduced already since many years. The most important issues regarding the selection and definition of typing systems both for paternity testing and for forensic identification, the criteria for technical and biostatistical validation, as well as the use of mitochondrial DNA analysis are summarized and discussed.     

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.     

A model process for forensic mental health screening and evaluation

This article describes an operational definition and a model process for forensic mental health examinations developed on the bases of field research, reviews of literature and other documentary materials, and a survey of forensic mental health programs. Forensic mental health screening and evaluation is defined as the process conducted by mental health personnel, at the direction of criminal justice authorities, for the purposes of delineating, acquiring, and providing information about the mental condition of client-offenders that is useful in decision making in the criminal justice system. The proposed model encompasses 14 pragmatically oriented steps within three major structural components of the examination process—delineation, acquisition, and provision—in a manner that places the entire process in the functional context of the criminal justice and mental health systems. The definition and model are aimed at practitioners, program evaluators, and policy makers to be used as a starting point for the establishment of standards against which the practices and policies relating to forensic mental health screening and evaluation can be compared and improved.The preparation of this article was supported in part by a grant (No. 79-NI-AX-0070) by the National Institute of Justice. The views expressed are those of the author and do not necessarily reflect the positions of the National Institute of Justice or the National Center for State Courts. The author thanks his colleagues for their assistance and advice during the study upon which this article is based, as well their critical reviews of earlier documents related to this work. The comments and suggestions of Amiran Elwork and an anonymous reviewer are also gratefully acknowledged.     

Drilling down into ethics: A thematic review of ethical considerations for the creation and use of 3D printed human remains in crime reconstruction

The existing literature contains some exploration of the ethics concerning human remains in forensic and virtual anthropology. However, previous work has stopped short of interrogating the underlying ethical concepts. The question of how people understand and apply these concepts in practice, and what it means to act ethically, remain underexplored. This thematic review explores the ethical considerations that contribute to the creation and use of 3D printed human remains for forensic purposes. The three main branches of ethical theory are outlined to explore how they may apply to forensic practice. Key themes relating to 3D printing human remains in forensic contexts were explored to better understand the ethics landscape, ethical challenges, and the current guidelines in place. Through this thematic review, nine ethics principles were identified as key principles for guiding best practice: anonymity, autonomy, beneficence, consent, context, justice, non-maleficence, proportionality, and transparency. It is suggested that these principles could be incorporated into adaptable guidelines going forward to support ethical practice. The findings also suggest that holistic ethics cognition training may have value in supporting forensic scientists in ethical decision-making, together with procedural and structural design that may promote best practice and reduce cognitive load.