CLPEX Chat Board

This was recently put out in a Forensic Ethics Class. I thought it was interesting enough to share.


Many cases of ethics are not about what is right or wrong as much as they are about which choice is better or worse. This creates grey areas.

Grey areas occur when there is more than one right answer or method. In this case, people must choose what is most right. People often disagree as to what the appropriate behavior is in a given situation. Adherence to a code of ethics does not necessarily ensure competence, but it does help to have a clear understanding of ethical violations to determine the impact of potential unethical conduct. Having a definition of ethical obligation for the profession will determine what information is relevant.

The scientific profession is composed of many sub-fields all having their own policies, procedures, and goals. The scientific method is thought to be the guide for all scientific experiments; however it is not one particular method. The scientific method is actually a set of prescribed steps that may not all be necessary for every study. A scientific method that can be used by only one person is not a scientific method. Although having one source of data is the best way to eliminate grey area, it is not a realistic way to remain unbiased. One of the main components of science is uncertainty……...
In science it is also important to remember that something significant in one region or laboratory may be of no interest to another. Grey area can not be avoided but luckily codes of ethics are set in place to try to ease the burden of deciding what action is more right.
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Mr. Parker,

This seems coincidentally a perfect forum to repeat the question I asked in my last posting on another discussion. The question there was whether an examiner should withhold information that a latent print was "probably" made by the suspect -- one of those prints that you feel "almost certain;" one of those in which, if you could only find one more point, one more big sweat pore, even one more bump on a ridge, and you would individualize it. Is it ethical to tell the investigator and the court about your gut feeling? Or is it ethical to withhold that information and say simply "inconclusive?"

The question of how to report findings is an ethical dilemma that is being herded (somewhat like herding cats) by disjointed and uncoordinated court rulings from multiple states. I gave an example of my preferred wording in the "Latent Print reporting and Inconclusive Determinations" thread, and my rationale in reporting findings that are in the borderline areas. For example, such situations are common in cases in which multiple impressions are developed on an item, many of which are positively identified yet several fragments remain with common features but which, compared individually and without the knowledge of their neighbors, would be insufficient.

As I stated in that thread, a report is a response to a request for analysis by the submitting agency. We owe it to that "customer" to give them as much information as we can, based on our findings. We attempt to prepare our reports, notes and documentation to satisfy a potential court examination of our findings, to be sure, but we cannot know for sure how our "customer" will use our information, or if our report will ever be chosen as forensic evidence, or simply as investigative help.

So the question is, do we prepare and limit our findings for court use only? Do we withhold potentially valuable investigative findings from the "customer" because it won't hold up in court? Do we provide everything we find and let the "customer" and the prosecutor decide how to use it? Do we submit two reports, one sanitized for court, one giving additional findings for the investigators? Do we publish only one report and pick up the phone to pass additional findings "through the grapevine?"

Having taken the ASCLD/ISO accreditation training, I know that there are few hard and fast rules for what is reported, just strict limitations on how you got there. What I am seeing written into policy and procedure manuals is a tendency to limit reports to a "canned" output. Also, much of this is being forced by the increasing use of computerized LIMS (Laboratory Information Management Systems) which offer only drop-down menus for reporting results and little or no flexibility in giving additional information. This reduces review time and streamlines paperwork. It is "right" within the P&P to withhold information that does not fit the mold, but is it ethically "right?"

Pat Wertheim commented in the "Latent Print reporting" thread

As far as reporting out "Identification (individualization), Exclusion, or Inconclusive," we are still influenced by the old dogma of a century of saying things that way. I rather like mdavis' wording, "the left thumb of Benny Burglar cannot be eliminated as a possible donor of latent print #L1. There is insufficient detail for positive identification." But I don't think my department would go for it yet. Maybe someday.

Those who write the P&P are often QA/QC managers who do not fully understand each discipline. Judges are attorneys, many of whom are woefully deficient in scientific background and education, and certainly in latent print examination. So our report ethics are, to a large degree, dictated by our respective employers and their written P&P. Once those manuals are printed, it becomes very difficult to re-evaluate them in light of ethical issues.

H.B. Tough question. As a certified LPE I am prohibited by the canons of my profession to provide possible or probable conclusions. It is a conclusion that I believe most LPE in this country would not approach or agree with even discussing it.

But let us say I had the "Big" case and felt compelled to go there with that type of conclusion. First I would have to find another LPE that would agree with my findings. Having another examiner to agree with the possible or probable conclusion would be extremenly difficult.

If the case, the evidence, the facts, my own analysis, the information on the case all fell into line with such a scenario and in my mind by not saying so could take the liberty or life away from another human being then I would take that step.

In reality we are fortunate in the very vast majority of the cases with not having that type of scenario presented to us. For the most part latent print identification is circumsantial to case at hand. A latent print on a firearm does not mean that person fired the gun. A latent print in a home does not mean that individual stole all the items. Those situations give us reasonable cause or a jury reasonable cause to believe that occurred, but not absolute fact that it did.

I think if faced with that situation you need to ask yourself if my action or inaction would effect the truth of the matter or the life and liberty of an individual.

For me the best guide is my conscious. The second best guide is the canons or ethics of my discipline. If we as LPE do not agree with current standards in place, then perhaps we need to work for a change in those standards.

MDAVIS. I like your discussion. I am not faced with the problems you have encountered. My agency is accrediated and we have a LIMS. However we do not have a set of mandated conclusions listed in our SOP's, we have canned conclusions in LIMS but we also have free text and most of the time the LPE here will use free text. We do not use the listed conclusions of SWGFAST (gasp!!!). We tried for a while but the investigators keep asking us what that meant. We do free text with plain language such as match, ID, No ID, and on occassions we might use the terms as stated by SWGFAST.

For what it is worth I do not think that ASCLD-LAB requires stated and canned conclusions. If you got them in your SOP you better be doing them. If you don't then they need to be terms that are generally accepted.

So the question is, do we prepare and limit our findings for court use only? Do we withhold potentially valuable investigative findings from the "customer" because it won't hold up in court? Do we provide everything we find and let the "customer" and the prosecutor decide how to use it? Do we submit two reports, one sanitized for court, one giving additional findings for the investigators? Do we publish only one report and pick up the phone to pass additional findings "through the grapevine?"

I do not think we should limit our findings especially if they have some investigative value. I think one report is the best way but if some side information may be of value for the investigation then that communicated to the investigator and documented in some form of case notes. At least that is what I do.

As I stated above. Let your conscious be your guide.

Charlie, the Daubert trilogy (Daubert, Joiner, Kumho) so far only applies to Federal court. I have done a dog and pony show on Daubert at several division meetings, and when I do, I research each state for local rulings. My presentation includes an analogy to the words of wisdom uttered by Yogi Berra, and the advice that if you understand Yogisms, you can understand Daubert. About half the states have adopted Daubert, some completely or in part, while others have clarified Frye by adding some or all of the Daubert criteria. Illinois now has Frye plus reliability, and that includes all Daubert criteria while declaring that Daubert is flawed. No state has adopted all the trilogy, and the main obstacle seems to be Joiner. I think Kumho is not real problem to the state courts, but they have been openly critical of Joiner as too restrictive and the latitude given the gatekeeper is too broad. I tend to agree.

I love your assessment of ethics Charles... Bang on.

We were kicking the subject of ethics around the office last week so I'll throw this one out for discussion. How about the ethics involved in fingerprint charts? There are a number of different methodologies in use out there -- everything from Photoshop ridge colourings to generic charts with images unrelated to the case. Of course there are the traditional charts and even the feature based charts.

I was wondering, what do you ladies and gentlemen think about the ethical limitations as they pertain to using and presenting fingerprint charts in court.

Shane

I LOVE court charts! The old style on poster board with each minutia point numbered and a big 'ol line going right to it. Anything that makes it easier to explain to the jury, and let them see what you're talking about, is great by me. I, of course, always do a MUCH better job than that miserable, shoddy SCRO "chart."

I wish I could do a court chart for every case I testify about, but that would be too time-consuming and costly so, mostly, we don't do them here in Austin.

One quick and easy way to prepare charts is to create a PowerPoint display using a projector and screen. You can enlarge the image on the screen and begin with a clean comparison of first the latent and then the control, then both side by side. Any marks or lines (I don't like lines when I'm able to use this type of display) can be easily and repeatedly toggled on/off for demonstration. This allows you to begin with your "A" for both images, followed by "C" and "E".

Dave, thanks for the information on Joiner. I realized it was Federal like Daubert and Kumho. Since Texas historically follows FRE and the Federal Courts it seems like a natural progression for my state to follow Joiner as well. Something for me to continue to look into and see what Texas has done with Joiner.

Shane I have done the old style charts of 8X10 on poster board all the way to Power Points today. I even did a 3-panel in a murder case where the left panel was a photo of the latent (very light), the right panel was the inked print and the middle panel was a drawing (tracing) of my interpretation of the latent print. Needless to say the Defense was not happy with my proposed presentation. After presenting their arguments to the judge outside of the presence of the jury, the judge allowed me to present it with the instruction that I make real sure that the jury understood that the middle panel was strictly my interpretation.

You did not say what the ethical problem your office was discussing with the use of court displays. With Power Point you can put a lot of Whizz-Bangs into them and is the jury swayed by the Whizz of your presentation or the information provided. I could see where an attorney would argue that too much Whizz-Bang would influence the jury more than the physical realities of the evidence itself. OR is the problem more along the lines that Court Displays do not reflect the totatility of the Analysis and we are showing the jury how simple it is and not the complexities of the examination, thereby giving them false information.

As a side note it seems to me that most attorneys in my area do not want court displays. It slows the court process down and they do not want the jury playing LPE in the deliberations (their statements not mine). It seems to me that some are more interested in picking a jury on Monday presenting their case on Tuesday-Wednesday. Closing arguments on Thursday with a final jury verdict before 5PM on Friday. However that could just be my negative perception creeping in.

Shane could you go into more detail about the ethical limitations of Court Presentations?

Personally I agree with MDavis as I like the Whizz-Bang of Power Point. If the defense thinks it is too prejudicial then that is why they have "objections" and arguments before the Judge. Let the Gatekeeper decide.

Despite the speed and convenience of PowerPoint as compared with the awesomely time-consuming manual preparation of paper charts, I am seldom if ever asked to provide visual props for court. I'm not sure if this is a time-induced lack of preparation by the prosecutor, or if there is a forensic reason that such displays are not wanted in court. I know there used to be issues raised by the defense if you presented a chart marked up with lines and numbers and did not provide a duplicate unmarked chart. The PowerPoint toggle capability addresses that objection.

This brings us back to the question of why any court would require unreasonably exhaustive "contemporary notes" in support of an ident while other courts are eager to forego time-consuming visual displays (a picture is worth 1,000 words....) in order to move the proceedings along in an efficient manner. I hope some of our defensive lurkers can shed some light here.....

mdavis--The same here, there are very few requests for court displays, but I do not think it is from the courts but from the prosecutors. We use to prepare charts but were then told by some prosecutors that they did not want them presented or even taken into court. Their reasoning was they did not want the Jury playing at Latent Print Examinations, or they said they did not feel it was necessary that the testimony was going to be short. We quit making them because of that unless the attorney specifically requests a chart.

I believe there are three ways to document our analysis which is a) Visually b) Descriptive or c) Combination. I personally prefer Combination with the images and comments in the margin or different markings in and around the images. But now you better make one without any notes besides the one with notes. That is no big difficulty but the one with notes helps me understand what the LPE is looking at and is thinking. Is that not what Peer Review all about? (Is their decision based upon cogent reasoning and the standards within the discipline to arrive at a proper conclusion).

Now I understand the argument about 'bias' but I just not have seen it to the level that a lot of people are hopped up about. Either I am just blind and sign off on everything because someone else's notes have set my mind in to looking at things the way they perceive them or I actually perceive them that way. But that does not account for the times that I disagree. Is the bias thing like a switch in my head "Bias On---Bias Off---Bias On---Bias Off". I would like to know when it occurs and how often it occurs? Perhaps they can make a program where we could scan the latent print and a print out is made that I have a 1 in 30,000 chance of commiting confirmation bias on this latent print. Of course knowing about bias ahead of time might actually affect me "the knowledge of bias affects my bias". Now there is a hoot---we need to develop procedures to control the bias that my knowledge of the bias created in the effort to control my intial bias.

Maybe that is why they do not want visual court displays in that it could Bias the Jury OR LEAD THEM TO A BETTER PATH OF UNDERSTANDING.

Enough of my rant mdavis--continue the debate. I cannot answer your question about the courts as each court is its own empire. Just as the states are not in agreement about Daubert, each court is generally not held to the decisions of others. Each case must be decided upon it's own merits and the evidence presented.

As this post initially started with a comment about ethics and then focused on the judges (also lawyers as mdavis pointed out) the irony has to make you smile.
Charles statement...[I cannot answer your question about the courts as each court is its own empire.] hits it on the head. Whether taken as literal or figurative this observation astounds as it is evident not only among the different state courts but also within same jurisdictions. What we collectively tend to lack is how the other side, or in this case the judges think, or at least what are their influences. Or do we... Check out "The Judges' Journal", Fall 2005 Vol. 44 No.4, a quarterly publication of the Judicial Division of the American Bar Association. This issue is titled "Science and the Law" and is devoted in its entirity to this sophisticated relationship. Informative reading if you have ever wondered what influences judges regarding scientific relevance. There is even a chart showing the breakdown of all the States and their approaches to scientific evidence, and Charles, I think you will be surprised as I was to see that Texas is considered as using the "Daubert" standard. Each chart listing also posts an illustrative court case. Excellent reading for those who realize this transition is for real and the growing pains will continue for all concerned.

Well I have to say we stopped using court charts some time last century in the days of 5x4 and 120mm roll film, it then took all day to prepare a chart, sometimes more. I do understand that with Photoshop it will take less than an hour, however that is not the point of this discussion. One of our senior members did a (approx 9000 word) research paper on the subject, he wrote to a number of District and high court prosecutors and defence solicitors (I love that word it kind of reminds me its the oldest profession in the world?) and court registrars. The overwhelming response of those who answered was, there was no really good reason to produce them. As I remember it only one defence solicitor said it was necessary.

We found when we stopped producing charts the number of crazy questions reduced dramatically, like but that line in image "1" does not appear in image"2" or point "4" appears to me to be a Bifurcation in image "1" but in image "2" it appears to be a ridge ending, allowing the court to start hearing more focused questions on a much more informative level.

We realised that we could not turn a jury into experts in a matter of hours, and one of our experts was told that one jury was heard arguing about whether or not the 2 fingerprints on a chart were actually made by the same person and were trying to analyse the chart.

Also one of our over stressed experts was ordered in court by the judge to prove all the identifications by way of charts by the next day, at which point every one in our office agreed it was getting ridiculous, he had 3hours sleep that night.

We had a few years before-hand a court of appeal ruling that the, evidence was the words that proceeded from the experts mouth, not the chart.

In fact I would suggest that the chart is secondary evidence, it is not notes taken at the time and certainly does not prove a thing it is a bit like Linus's blanket (http://www.snoopy.com/comics/peanuts/me ... linus.html ) some thing to hang on to just in case.

We do take our working notes of course a couple of Crimcon images with dots on which is occasionally produced and that is about the nearest we get to producing a chart. We will of course produce a chart if requested to do so or if the individual really thinks it is required; but how often this has occurred in the last 15years I could count on the fingers of one hand.

In this office we prepare over 200 court cases a year, times 15 years that is 3000 charts we have not had to prepare, imagine how many more identifications we made over that time.