Science and justice: gaps and dialogue
It’s not a rare occurrence in crime fiction for the lens to focus in on the courtroom. The court is often the culmination of a fast paced, intensive investigation and the tension builds as all the hard work of the investigators is ‘tested’, the cases for the prosecution and defence are presented, and then the verdict is dramatically announced, often met with a sharp intake of breath, or scenes of elation depending on the outcome. The justice system is a really critical component of the forensic science ecosystem that informs and shapes a huge amount of an investigation, including the collection, preservation and analysis of exhibits and specimens. But it’s also a distinct entity with its own systems, rules, practices and culture.
This can cause challenges for forensic science – as the House of Lords Science and Technology Committee inquiry into forensic science articulated. It is not only piecemeal oversight and the presence of very distinct key stakeholders that has led to the many challenges they identified, but also the fragmented approach to forensic science. Forensic science has to operate at a nexus of the justice system, the police, government policy and science, each of these are different types of institution with their own priorities, ways of working and languages of communication, and so there are many opportunities for forensic science to fall between them in a ‘no man’s land’. So, naturally, one of the main topics of the inquiry looked at how science was interacting with the justice system, what the key challenges are, and made recommendations for how some of the gaps could be addressed.
Challenges of science in the justice system
There are many different issues that we face when using science in the justice system, but there are perhaps broadly three main challenges:
dealing with the inherent complexity and uncertainty in science (that can contrast with the need for ‘beyond reasonable doubt’ in the courts);
understanding and communicating probability accurately and meaningfully to a non-statistician audience (these audiences can include many scientists, judges, advocates and members of a jury);
and providing clear evaluative interpretations of what the science evidence means in the specific case in question (providing insights to the ‘what’ and ‘who’ but also the ‘how’ and ‘when’ questions).
The challenge of gaps in our knowledge
It’s probably no great surprise given my day job that I’m a great believer in education(!). But having said that I think traditionally we’ve been too quick to jump to solutions of filling perceived gaps in knowledge with ‘facts’ and ‘(new) information’ rather than identifying what someone needs to know in order to address a gap. Sometimes that will be factual information. But other times (arguably most of the time) what we actually need to know is that a gap really exists, then why it exists and the nature of it (is it a one-off issue or an ongoing, even scalable issue?), and only then can we be at the point of working out how to equip people to address that gap in an ongoing way. Google is the most incredible resource – pretty much all the factual information you could ever need is available there – but it’s arguably only valuable if you know what you are looking for and how to find it.
'Facts', training, dialogue
So when the report from the Lords inquiry talks about the importance of law professionals needing training as part of their ongoing CPD, it’s not suggesting we ask lawyers to be (or become) scientists. But it is about making sure that lawyers and the judiciary have access to training that equips them to ask the best questions of science evidence (and the expert witness) that are salient to the case in hand. For that to happen there needs to be good training available but also a channel for an ongoing conversation between science and law, and the communication of appropriately synthesised science developments, new findings and insights. It is important to have access to the latest updates on what is new and emerging in both science and the law that is relevant for the justice system so that we develop a culture of knowing what we can ask of a particular type of analysis (and what we can’t ask!); what are the strengths and limitations of that approach (and where is the uncertainty)?; and are the conclusions reached in this instance reasonable from the data that we have available?
Of course, much of this is already happening through existing networks and the many informal channels within the justice system and its community. There are many conferences and events, a number of projects to produce primers, and increasing opportunities for the science and justice worlds to interact. But this is still a very significant challenge that needs to be addressed, and we need to keep it on the agenda. There appears to be scope for a more formalised approach to ensure that there is a real and ongoing dialogue between these two worlds that is accessible and sustainable. We don’t just need to plug knowledge gaps, we need to be enabling dialogue and agile mindsets to critically engage with science evidence in every case.
The Lords report recommends that the proposed Forensic Science Board (for more on this see here) should have ‘ultimate responsibility for ensuring ongoing guidance to the judiciary and legal professional’ and be responsible for ‘enabling dialogue and sharing of best practice and responding to new developments as they arise.’ (p35), which would be a very important and exciting step forward. This is of course just one aspect of the challenge and it can’t be done in isolation. In acknowledgement of this, the report also recommends that legal aid needs to be addressed and access to forensic testing and expert advice for defendants needs to be ‘properly funded by the Ministry of Justice’ (p32), and it highlights the necessity of considering current practices such as ‘streamlined forensic reporting’, the presentation of statistics and probability, and the evaluative interpretation of forensic science evidence.
So being mindful that the worlds of justice and science are complex, multi-layered, and highly nuanced, addressing the challenge of forensic science in the justice system will not come down to one ‘simple’ solution. But, a more ongoing dialogue between the two does appear to have phenomenal potential for developing scientists who are better able to engage with the justice system, and law professionals who are better able to interrogate the science, and that has to be an incredibly valuable next step. Our justice system shapes our society – it is a foundational pillar along with parliament and government. The integrity of forensic science is a significant part of the justice system, so enabling the realms of science and justice to work more coherently and synergistically isn’t just a nice thing to have – it really matters because it will shape the type of society we live in.