Courtroom Ethics of Forensics

Ethics and forensic anthropology in the courtroom 

Ethical responsibilities

• Forensic anthropologists must ensure their work:

1. Does not falsely identify individuals (Remains) - providing distress to them and their families

2. Falsely convict an innocent individual

“better 100 criminals be let free than one innocent person getting convicted”

(something like that)

• There are 3 distinct components of ethics in forensic anthropology.

1. Respect : For the remains (treat them like they are your own family. Also treat the family of deceased with respect they deserve if you confront them.

2. Confidentiality - especially when dealing with criminal cases - authorities usually hold back info from public or provide deliberate misinformation in order to draw out the perp.

3. Honesty - In the form of complete and accurate assessment on forensic case - e.g. When dealing with unknown informations such as sex, it is better to say it cannot be determined and report the findings whether they are determinant or not than to guess or hold back info.

• Evidence/opinion dichotomy

• Giving evidence : Describing the physical remains. Eg. there is a cut mark of 3cm on the humerus. Involves measuring, giving detail, etc

• Giving opinion = Interpretation of remains based on forensic methods. Ancestry, age, sex, age at death, stature, pmi are all opinions.

• 3 types of opinion:

1. Speculation - This is opinion based on no information/no data - avoid unless directly asked or prompted by lawyer or judge. Usually only done if you are very experienced on the topic and can give professional speculation - should never be put into writing e.g. report. Should be given off the record.
2. possible - offering opinion based on certain characteristics of event being possible - higher certainty than speculation but the event can still be unlikely to happen.
3. probable - highest level of certainty to data collected - e.g. in stature 95% confidence level

using stats. Using statistics is tricky when determining cause and effect however - correlation does not always mean causation, eg age of miss america correlates with murders by steam, hot vapours and hot objects correlate with the number of people who drowned of falling in pool with films Nicholas cage appeared in.  

• You can omit using statistics and use word qualifiers.

Examples:

1. likelihood - likelihood of something happening - For example you can say it is unlikely the individual stood shorter than 5ft 5inches

2. Consistency - common occurrences - opinion constant to patterns - You could say the skeleton is consistent with an individual in their mid to late 40’s or the wound patterns are inconsistent to a homicide.  

• You have to take into consideration your own personal ethics when working a case.  

• In relation to country/community you’re working in for example - They might choose to give the perp a death sentence but you don't agree with the death penalty.

• Do you refuse to work on case because it conflicts with your own personal ethics or just do it ?

• Working with vulnerable people in volatile circumstances - e.g. genocide can even put your own life in danger

• Understanding where you stand ethically help you decide on how to deal with situation.

Expert testimony

• There are Rules for admitting your opinion as evidence in court.

Frye rule or general acceptance test

Frye v. United States[1923].293 F. 1013 - I think this is when the rule started being used ?

Evidence has to meet the standard for determining admissibility of scientific evidence.

The scientific technique acceptability (Technique used to determine evidence) - The scientific technique “must be sufficiently established to have gained general acceptance in the particular field in which it belongs.”

• It wasn't until the Dubert case that narrowed down the specific criteria of scientific methods and whether or not they met the requirements to be presented as expert testimony.

• (Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 )

Criteria:

1. The theory or technique must be testable or tested (at least once before) - by a different person
2. Have been subjected to peer-review and publication - everyone in field has access to critique it.
3. Have standards or known standard error rates (structure of how to apply method)
4. Must be generally accepted by experts in field - after all 3 previous steps.  

• The judge has the power to exclude any expert testimony if there is a gap between the evidence and the conclusions being made by the expert - needs logical conclusion.

• Judge has the final say - more likely to apply when have non science based testimony.

Case in canada : Regina v. Mohan [1994] 2 S.C.R. 9: