Month: September 2021

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FORENSICS IN THE COURTROOM via Manisha Nandan

IT IS A MISTAKE TO THEORIZE BEFORE YOU HAVE ALL EVIDENCE. IT BIASES THE JUDGMENT – Sherlock Holmes

FORENSICS IN THE COURTROOM — Manisha Nandan

[ CRIME NEVER DIES – PART 3 ]

UDGMENT – Sherlock Holmes

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When someone is charged with a crime, the prosecution and defence typically call in witnesses to testify about the guilt or innocence of the person who has been accused. One of the most important players in all this testimony often isn’t a person at all: it’s the forensic evidence.

And these evidences are obtained by scientific methods such as ballistics, blood test, and DNA test and further used in court proceeding . Forensic evidence often helps to establish the guilt or innocence of possible suspects.

So its Analysis is very important as they are used in the investigation and prosecution of civil as well as criminal matters. Moreover Forensic evidence can be used to link crimes that are thought to be related to one another. For example, DNA evidence can link one offender to several different crimes or crime scenes and this linking of crimes helps the police authorities to narrow the range of possible suspects and to establish patterns of for crimes to identify and prosecute suspect.

CASES REQUIRING FORENSIC EVIDENCE
Forensic evidence is useful in helping solve the most violent and brutal of cases, as well as completely nonviolent cases related to crimes such as fraud and hacking.

If a decomposing body is found in the woods somewhere, forensic scientists can use DNA, dental records, and other evidence to identify the person, determine the cause of death, and sometimes determine if the body contains material from another person who may have been present at the time of death.

Investigators often look for forensic evidence in cases where sexual assault is suspected. In some cases, DNA evidence can prove or disprove allegations of rape or child molestation.

Forensics are also useful in drug cases. Scientists can test unidentified substances that were found on an individual to confirm whether or not they are cocaine, heroin, marijuana, or other controlled substances. Investigators use forensic toxicology to determine whether a driver was impaired at the time they were involved in an accident.

The field of forensics isn’t only limited to evidence obtained from people’s bodies. Ballistics (otherwise known as weapons testing) can tell investigators a lot about cases where gunfire was involved. Did a bullet come from a particular gun? Where was the shooter standing? How many shots did they fire? Ballistics can help answer all of these questions. Another area of forensic evidence lies within the circuits of our phones and computers. Those who commit cyber crimes leave behind traces of their activities in databases and documents scattered throughout the digital world. Forensic computer specialists know how to sort through the information to discover the truth.

However ,The question of admissibility of evidence is whether the evidence is relevant to a fact in issue in the case. Admissibility is always decided by the judge and all relevant evidence is potentially admissible, subject to common law and statutory rules on exclusion. Relevant evidence is evidence of facts in issue and evidence of sufficient relevance to prove or disprove a fact in issue.

As per Section 45 of Indian evidence Act 1872- When the Court has to form and opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts. Further as per Section 46 of Indian evidence Act 1872- it is stated that facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant. Though there is no specific DNA legislation enacted in India, Sec.53 and Sec. 54 of the Criminal Procedure Code, 1973 provides for DNA tests impliedly and they are extensively used in determining complex criminal problems.

Sec. 53 deals with examination of the accused by medical practitioner at the request of police officer if there are reasonable grounds to believe that an examination of his person will afford evidence as to the commission of the offence. Sec. 54 of the Criminal Procedure Code, 1973 further provides for the examination of the arrested person by the registered medical practitioner at the request of the arrested person.

The law commission of India in its 37th report stated that to facilitate effective investigation, provision has been made authorizing an examination of arrested person by a medical practitioner, if from the nature of the alleged offence or the circumstances under which it is alleged to have been committed, there are reasonable grounds for believing that an examination of the person will afford evidence. Sec. 27(1) of Prevention of Terrorism Act, 2002 says when a investigating officer request the court of CJM or the court of CMM in writing for obtaining sample of hand writing, finger prints, foot prints, photographs, blood, saliva, semen, hair, voice of any accused person, reasonable suspect to be involved in the commission of an offence under this act. It shall be lawful for the court of CJM or the court of CMM to direct that such samples shall be given by the accused person to the police officer either through a medical practitioner or otherwise as the case may be.

Section 65(B) of Indian Evidence Act says that electronic records needs to be certified by a person occupying a responsible official position for being admissible as evidence in any court proceedings.
So as the capabilities of forensic science have expanded and evolved over the years, facing a number of significant challenges.

Then also a main weakness is in its susceptibility to cognitive bias. Today, despite remaining a powerful element within the justice system, and playing a key role in establishing and reconstructing events, forensic science much like any scientific domain, faces weaknesses and limitations.

These issues can arise throughout an investigation; from when the forensic evidence is first collected at the scene of the crime, until the evidence is presented at court.

So there is utmost need of forensic science because of reasons like –
The need for the application of science in criminal investigation has arisen from the following factors:
1. Social Changes:
The society is undergoing drastic social changes at a very rapid pace. India has changed from a colonial subject race to a democratic republic. Sizeable industrial complex has sprung up. The transport facilities have been revolutionized. There is a growing shift from a rural society to an urban one. These changes have made the old techniques of criminal investigation obsolete. In the British days the police was so much feared that once it had laid its hands upon an individual, he would ‘confess’ to any crime, he may not have even known. The fear is vanishing now. The use of ‘third degree’ techniques used in those days does not find favour with the new generation of police officers and judges.

2. Hiding facilities:
The quick means of transport and high density of population in cities have facilitated the commission of crimes. The criminal can hide himself in a corner of a city or move away to thousands of miles in a few hours. He, thus often escapes apprehension and prosecution.

3. Technical knowledge:
The technical knowledge of an average man has increased tremendously in recent years. The crime techniques are getting refined. The investigating officer, therefore, needs modern methods to combat the modern criminal.

4. Wide field: The field of activities of the criminal is widening at a terrific rate. Formely, the criminals were usually local, now we find that national or international criminal is a common phenomenon. Smuggling,drug trafficking ,financial frauds and forgeries offer fertile and ever expanding fields.

5. Better Evidence: The physical evidence evaluated by an expert is objective. If a fingerprint is found at the scene of crime, it can belong to only one person. If this person happens to be be the suspect, he must account for its presence at the scene. Likewise, if a bullet is recovered from a dead body, it can be attributed to only one firearm. If this firearm happens to be that of the accused , he must account account for its involvement in the crime. Such evidence is always verifiable.

In reality, those rare few cases with good forensic evidence are the ones that make it to court.—Pat Brown

@MANISHANANDAN

[ CRIME NEVER DIES – PART 3 ] IT IS A CAPITAL MISTAKE TO THEORIZE BEFORE YOU HAVE ALL EVIDENCE. IT BIASES THE JUDGMENT – Sherlock Holmes When someone is charged with a crime, the prosecution and defence typically call in witnesses to testify about the guilt or innocence of the person who has been […]

FORENSICS IN THE COURTROOM — Manisha Nandan
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The Risks of Cutting Corners in Forensics via Jonathan Desverney @ USA News

The Risks of Doing Forensics on the Cheap - featured image

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With the demise of the internationally renowned public sector UK Forensic Science Service in 2012 came the promulgation and growth of a new competitive marketplace.

Private sector companies working in a hastily drawn up framework for forensic science provision were invited into rounds of competitive tendering that were driven by the police service.

These were based on the notion that the Forensic Science Service had been inefficient, delivering forensic science analysis in an expensive and untimely manner.

However, high-quality forensic science provision was always costly and the British police service wanted to operate in a new culture of cost reduction and value for money. They wanted full control of their spending and that is understandable.

But with the rise of competitive tendering the provision of forensic science was commoditized. Specific work and tests in each forensic discipline were itemized and bid for by the companies.

The police forces guaranteed specific volumes of testing to the companies in order to get the best prices and the police began to dictate to the companies what tests they required against the ‘pricelist’ when potential forensic evidence had been collected from crime scenes.

The police service also determined to undertake certain basic scientific tasks themselves. By bringing these in house they could further save money and reduce the burden on their budgets.

This new and cheaper approach has been in place for nine years and has been subjected to comment by critics and supporters alike. In 2018 one major player in the new UK forensic market, Key Forensic Services Ltd, collapsed. They had won a significant share of the available forensic science work, but couldn’t sustain the service.

Many working in forensic science warned that the quality of expert analysis and interpretation would be lost as scientists would no longer be able to refer their findings to colleagues across overlapping disciplines in order to provide a holistic approach to obtaining the best evidence from the forensic samples presented.

This would inevitably lead to the loss of the opportunities for contextualization of the evidential findings for use in the justice process.

In addition the fragmentation of the industry has seen many expert scientists set up their own niche services and struggle to get regular work. Some left the industry altogether.

There has never been a properly constituted academic analysis of what these changes have meant to UK forensic science provision and what the impact has been.

Until now.

In a comprehensive and thorough six-year research programme, Dr Karen Richmond from the University of Copenhagen undertook a long and objective period of fieldwork and analysis.

Interviews were conducted not only with forensic scientists, but also with allied institutional agents including senior professional members of the judiciary of England and Wales, Her Majesty’s Inspectorate of Constabulary, the Office of the Forensic Science Regulator, the Crown Prosecution Service, the Royal Society, the UK Accreditation Service, the Metropolitan Police Service, and the Chartered Society of Forensic Sciences.

Her findings are both startling and important. They point to a thoroughly dysfunctional marketplace that has failed to harmonize the array of tests and reports in a way that should have led to the configuration of a homogenous service from each provider to all police forces.

Instead, the exact opposite has occurred, with very different requirements being demanded of providers by each separate police force so that scientists are “reinventing the wheel” for each customer.

Furthermore the scientific strategy for the analysis and reporting of forensic samples is set by the police with little or no scientific training. They will perhaps have undertaken Crime Scene Investigation training, but that doesn’t allow for the best objective understanding of what might work or not work in each case.

This can result in loss of opportunities as the scientists are often not able to question the police requirements and cannot make their own investigative assessments of what the best science is to be applied.

There has been a market push and perhaps an over reliance on DNA testing as the “go to” science, to the detriment of other scientific processes such as the searching for, collection of,  and analysis of fibers.

Indeed there are a host of critical findings that reflect negatively on the way the market has developed. Dr Richmond says in her report:

The data demonstrates not only how government agencies failed to adapt to the introduction of competitive tendering, but also how the market which developed in their wake began to influence, distort and reconfigure the very processes of forensic strategy-setting and analysis.

She goes on to say:

The results offer a compelling insight into the ways in which these agents have adapted to changing relations, shifting priorities, and the imposition of market logics within a sector unaccustomed to the obtrusions of economic efficiency and external regulation.

After nine years there are continuing tensions and frustrations. They are keenly felt by scientists and the companies providing forensic science services. These should not now be set aside as just another academic study.

Dr Richmond’s work has shown that in hindsight the implementation of the decision to restructure forensic science provision to the UK criminal justice system was flawed.

It perhaps should have never left the public sector in the first place, where in a government agency cost considerations would have remained secondary to the need to provide comprehensive criminal justice outcomes.

The US Perspective

In a recent column for The Crime Report “ Why We Need a Federal Forensic Science Agency,” I argued that forensic science provision in the U.S. cannot continue to support unvalidated and often junk science in its courts to the detriment of a fair and just criminal justice system. This remains the case.

However the UK seems to have also got things wrong. Not in the quality of work that is done by the forensic providers, as this is regulated and accredited to international standards;  but in the way that the science has been dumbed down by the police.

The emphasis on treating science as a sequence of commoditized testing processes has led to the inability of scientists to properly engage their expertise in support of criminal justice in the way they did when forensic science was delivered as a public sector service.

If the U.S. is eventually to embrace a nationally mandated federal forensic science system in the future,  then there are clear lessons to be learned from Dr Richmond’s research.

The application of forensic science to the justice process should be led by independent experts, working in a quality controlled environment, to provide the best evidence for the courts. A system that allows the police to control the work of scientists, without having recourse to the expert opinion of those scientists before the work is carried out, should not be the way to go.Gareth Bryon

Gareth Bryon

Indeed the UK police approach to seeking quick results cheaply from forensic science may one day mean that the best opportunities to secure a conviction in a high-profile case may go out of the window, because other potential evidence is overlooked or not considered based on cost.

This couldn’t happen in the U.S., could it?

Gareth Bryon is a former Detective Chief Superintendent who worked as a senior officer in the South Wales Police and the British Transport Police, where he led major crime investigation and forensic science services for over 30 years.