Law and Ethics in Forensic Science

This paper analyses ethical issues in forensic psychiatric research on mentally disordered offenders, especially those detained in the psychiatric treatment system. The idea of a ‘dual role’ dilemma afflicting forensic psychiatry is more complicated than acknowledged. Our suggestion acknowledges the good of criminal law and crime prevention as a part that should be balanced against familiar research ethical considerations. Risks of research subjects being burdened by improvements of criminal justice due to research should not be seen as weighty reasons. Direct substantial risks must be balanced by health benefits, and normal informed consent requirements apply. When direct risks are slight, as in register-based epidemiology, lack of consent may be counter-balanced by special measures to protect integrity and the general benefit of better understanding of treatment and prevention. Special requirements on consent procedures in the forensic psychiatric context are suggested, and the issue of the relation between decision competence and legal accountability is found to be in need of further study. The major ethical hazard in forensic psychiatric research connects to the role of researchers as assessors and consultants in a society entertaining strong prejudices against mentally disordered offenders.

Keywords: dual role dilemma, ethics, forensic psychiatry, informed consent, mentally disordered offenders, public good, research ethics

The primary focus of this article entitled ”Electronic and Computer Evidence in Proceedings before Courts and Labour Tribunals” is on evidence emanating from computers and other electronic devices, which account to a major share of evidence that is adduced before Courts and other Institutions administering Justice including Labour Tribunals. The article, is an offshoot of a handout I prepared for my lectures at the Sri Lanka Judges Institute for Judicial Officers which included Magistrates and District Judges as well as Presidents of Labour Tribunals. In the course of these lectures, I was asked to concentrate on the provisions of the Evidence (Special Provisions) Act of 1995 relating to (1) contemporaneous recordings made by the use of electronic or mechanical means and (2) computer evidence. I was also expected to deal with in some detail with the provisions of the Electronic Transactions Act of 2006, and the overlaps between these two pieces of legislation, in the context of certain principles embodied in our Evidence Ordinance of 1895, in particular the Best Evidence Rule and the Hearsay Rule. The task entrusted to me was somewhat challenging, and I had to engage in considerable research prior to delivering these lectures, and I considered it useful to publish a more simplified version of my lectures for the benefit of the members of the Bar and even others who conducted trial in the Labour Tribunals. The resulting publication appears in (2011) Bar Association law Journal Vol. XV at page 9.

Psychologists frequently testify in court about an individual's risk for future violence. Decades ago, the basis for such testimony was problematic, but the field has made significant progress. However, recent criticisms raise ethical concerns about risk evaluations and state that current methods do not meet admissibility standards. Responding to such criticisms is important for expert witness involvement in these evaluations. We note that it is feasible to conduct thorough ethical evaluations that will aid judicial and clinical decision making. We argue that the courts find this information necessary, and well-informed professionals can make valid and important contributions in these proceedings. To leave the courts without access to the best science available could cause more harm than good.

Forensic archaeology in conflict or post-conflict contexts typically refers to activity at the behest of and in association with a governmental or intergovernmental body. As such, there is an inherent risk that an investigation will be politicized and be subject to the label of "Victor's Justice." This chapter presents several cases that employed forensic archaeological expertise in conflict contexts and explores the ethical implications of the archaeologist as a participant. Two principal criteria help establish if investigations are just: how closely connected they are to the victim community/communities; and if all victim groups are being treated relatively equitably. This chapter emphasizes that forensic archaeological work does not take place in a value-and politics-free environment and individual scientists must consciously and conscientiously accept responsibility for making ethical decisions about their participation in these types of investigations.

For an English summary, scroll down or see http://dare.uva.nl/record/355406"

Dit boek gaat over de twintig jarige geschiedenis van het forensisch DNA-onderzoek in Nederland. Die geschiedenis wordt beschreven door in de details te treden van een verkrachtingszaak uit 1989, een inbrakenzaak uit 1998 en de verkrachting van en moord op Marianne Vaatstra in 1999. Op die wijze wordt duidelijk gemaakt hoe forensisch DNA-onderzoek van een bijzondere naar bijna-alledaagse technologie is getransformeerd, en hoe het een opsporingsfunctie heeft gekregen naast de oorspronkelijke bewijstoepassing. De in het boek gepresenteerde analyses zijn gebaseerd op de toegankelijk gemaakte strafdossiers. Aan de hand van die strafdossiers is nauwgezet gereconstrueerd hoe in de verschillende zaken, met verschillende technieken en wetgeving, forensisch DNA-onderzoek bijdraagt aan het proces van waarheidsvinding, en hoe, als gevolg van die technieken en wetgeving, individuen op steeds andere wijze tot onderdeel worden gemaakt van opsporingsonderzoek.
In hoofdstuk 1 wordt het onderzoek geintroduceerd door het normatieve kader te schetsen. Theoretische en methedologische vragen worden besproken door het Amerikaanse en Nederlandse rechtsstelsel te schetsen, in het bijzonder daar waar het gaat over het gebruik van forensische kennis in die twee rechtsstelsels. Hoofdstuk 2 beschrijft een verkrachtingszaak uit 1989, het betreft een van de eerste DNA-zaken in Nederland. Hoofdstuk 3 analyseert een inbrakenzaak uit 1998, en hoe de DNA-databank bijdraagt aan het oplossen van die zaak. In hoofdstuk 4 staat het opsporingsonderzoek centraal dat volgt op de moord op Marianne Vaatstra in 1999, meer in het bijzonder gaat het in de hoofstuk erom hoe meer dan 900 mannen tot onderdeel worden gemaakt van grootschalig DNA-onderzoek. In het concluderende hoofdstukken gaat het over nieuwe forensische DNA-technieken, waaronder het DNA-verwantschapsonderzoek en het vaststellen van uiterlijk waarneembare persoonskenmerken.

ENGLISH
This is my slightly adjusted phd thesis and is published by Kluwer Press.
By going into the details of three so-called 'mile stone cases', I shed light on the development of forensic genetic practices in the Netherlands. More specifically, my interest is the convergence of forensic genetic technologies and forensic DNA legislation and newly 'enacted' (Mol 2002) relations between citizens and the State. The argument presented in the book is that bodies become increasingly important for finding judicial truth in the forensic genetic era, they hence become Carriers of Truth."

The forensic science community has been heavily scrutinized in recent years due to the release of the PCAST report. One of the methods under scrutiny is the analysis of DNA mixtures. These methods have been reassessed due to the lack of understanding, validation and methodical testing of the effects of changing the analytical threshold (AT) and the increasing use of probabilistic genotyping software programs. Cybergenetics states that their program, TrueAllele, is the most accurate statistically for DNA mixtures due to the lack of an analytical threshold in their DNA mixture assessment. By using no analytical threshold, the maximum number of peaks will be detected in a sample without data loss. Other software analysis programs allow for forensic laboratory policies that use differing analytical thresholds (e.g. 50 RFU, 75 RFU, 100 RFU) to screen for maximum confidence in allele calls compared to instrument noise. This study attempts to test the effects that the analytical threshold has on the percent loss of peaks for both single source DNA samples and DNA mixtures. Using the program GeneMarker where the analytical threshold can be manipulated, 103 mixed source and 53 single source DNA samples taken anonymously were evaluated with various analytical thresholds and the numbers of DNA fragments/peaks were tallied. For each data set, the only adjusted parameter was the analytical threshold. On average, single source samples had a 0.14% loss per threshold shift suggesting that there is little to no effect of the analytical threshold on the final number of allele calls. Conversely, mixed source DNA samples had almost twenty times that value, with a loss of data averaging 2.82%. The analytical threshold affects mixed source samples significantly more than single source samples and depending on the amount of total peaks in the DNA mixture and data quality (peak heights), there could be a substantial loss of data when analytical thresholds are used. Touch DNA samples are common types of forensic mixtures where there may be a major component but the minor contributors are not distinguishable. This could be due to data loss below the analytical threshold, reducing the number of informative loci for forensic reporting. The effect of this is to reduce clarity for number of contributors to a mixed sample and a loss in discrimination power or ability to identify the minor components in the mixture.

Psychologists frequently testify in court about an individual's risk for future violence. Decades ago, the basis for such testimony was problematic, but the field has made significant progress. However, recent criticisms raise ethical concerns about risk evaluations and state that current methods do not meet admissibility standards. Responding to such criticisms is important for expert witness involvement in these evaluations. We note that it is feasible to conduct thorough ethical evaluations that will aid judicial and clinical decision making. We argue that the courts find this information necessary, and well-informed professionals can make valid and important contributions in these proceedings. To leave the courts without access to the best science available could cause more harm than good.

Although nuclear forensic DNA tests are standard practice in most forensic science laboratories, complex DNA mixture analysis remains a challenge. Although new to many laboratories, the concept of probabilistic genotyping has been presented for over a decade as a tool to aid in mixture analysis. Probabilistic genotyping can be defined as a mathematical approach using the likelihood ratio (LR) to estimate if an individual is likely to be included or excluded in a DNA mixture based on statistical inference. Mathematical modelling of biological data has been shown to be less biased than using analyst discretion in determining an inclusion of a DNA donor to a complex mixture. Still, there are caveats to using probabilistic genotyping software that become evident when applied to forensic casework. The effect of allele sharing and the uncertainty of the number of contributors to the likelihood ratio hypothesis are discussed.

To determine the moment of death is very important for various purposes in medico-legal practice. The moment of death may not only assist and be regarded as valuable evidentiary material in criminal investigations but it is also important in the context of organ transplantation, questions regarding euthanasia, insurance claims, the termination of a marriage or business partnership as well as in the legal domain of succession. A diagnosis of death is furthermore important and necessary for society to commence with religious and/or traditional rituals, burials etcetera (Farrell and Levin “Brain Death in the Pediatric Patient: Historical, Sociological, Medical, Religious, Cultural, Legal and Ethical Considerations” Dec 21(12) 1993 Crit Care Med 1951ff).
In order to determine the exact moment of death, however, is not an easy task, least of all a very simple and straightforward undertaking as Prof Christiaan Barnard suggested by asserting that a person is dead when the doctor says that the person is dead! (Barnard Good Life, Good Death: A Doctor’s Case for Euthanasia and Suicide (1980) 11.) To determine the exact moment of death, a definition of death is required as well as a standard to diagnose death – diagnostic criteria (Joffe “The Neurological Determination of Death: What Does it Really Mean?” 2007 23(2) Issues in Law & Medicine 120). This note will show that what initially may be regarded as general medical and legal requirements as well as basic semantics when referring to a definition of death, a concept of death and the criteria for the purposes of diagnosing death, is actually a very complicated, multifaceted and unsettled area of debate.

The development of forensic psychiatric risk assessments is discussed from a clinical point of view using the example of Sweden. A central task in forensic psychiatry has traditionally been to identify dangerous, mentally disordered subjects considered to be prone to commit violent acts. Over time, “dangerousness” has been reworded into “risk”. Nevertheless, such assessments have generally been based on the psychiatric factors characterising the individual patient, while group interaction, situational factors, or social and cultural circumstances, such as the availability of alcohol and drugs, have been largely overlooked. That risk assessments have a focused on people with a diagnosis of “mental disorder” and been used as grounds for coercive measures and integrity violations has somehow been accepted as a matter of course in the public and political debate. Even the basic question whether offenders with a mental disorder are really more prone to criminal recidivism than other offenders seems to have been treated light-handedly and dealt with merely by epidemiological comparisons between groups of persons with broad ranges of psychosocial vulnerability and the general population. Legal texts, instructions and guidelines from the authorities in charge are often vague and general, while actors in the judicial system seem to put their trust in psychiatric opinions. The exchange of professional opinions, general public expectations, and judicial decision processes poses a huge risk for misunderstandings based on divergent expectations and uses of terminology.

This paper explores mental health professionals' experiences working with correctional staff--one aspect of an interdisciplinary phenomenological study of ethical practice in forensic psychiatry. Professionals describe this relationship as coexisting within the system, despite their often conflicting roles. In correctional officers' overt concern for custody and control, practitioners can perceive a "paramilitary mentality" with which they struggle to work. Conversely, practitioners can experience conflict with security personnel for appearing "too caring" or "too sympathetic" to offenders--being "con-lovers." The balance practitioners establish between working with inmates and working alongside facility security is one of walking a fine line.