Injustice, Forensic Science and The Media: Are You Watching Closely?

Welcome once again to Kev's Crime Corner reader's the articles which encourage you to think about the media representations of crime, its causal factors, and the forensic evidence involved in media claims. This is the last part of the three part series involving wrongful convictions. We will also (once again) be looking at the empirical peer reviewed research studies involving the causal reasons why wrongful convictions occur. In the last article of Kev's Crime Corner, we looked largely at the dangers by trusting media representations (always a dangerous mistake) and how strategic media representations influence the public and political reforms using media fear. In this month's Kev's Crime Corner article we will also look at the problems with the current state of the forensic science community in the U.K and the U.S.

D.N.A comparisons.

This month's article we will also focus upon and explore some of the potential benefits of (and the current problems) with specific forensic disciples. As usual we are chiefly concerned with the media misrepresentations of forensic science and are going to highlight the established six causal factors found to be the main contributors to wrongful convictions.

Lets' begin with defining the term "forensics"....

What is "forensic" science?

The modern word "forensic" is derived from the old Latin word " forensis " meaning "of the forum" or sometimes translated as "before the forum", however, forensics in modern parlance usually refers to scientific evidence brought to court or physical evidence which is involved in criminal investigations which the court evaluates once a suspect is identified and goes to trial ( i.e. "before the court" the forum which gathers to discuss, argue, and prove applications of the law and legal matters). The term "forensic science", therefore, refers to science brought before the court. The applied field of forensic science, however, is known to many forensic professionals as criminalistics. There are many sub-disciplines utilised within criminalistics such as forensic serology (i.e. the study of any body fluids found at crime scenes or related to a crime), ballistics (i.e. the study of projectiles, ammunition, and projectile weapons or tools in relationship to crime), forensic chemistry (i.e. the examination of chemical substances in relationship to a crime), forensic pathology (i.e. post-mortem medico-legal examinations or investigations of crime victims, their wounds and injuries, etc.), forensic document examination (i.e. the examination of questionable documents used to establish authorship via handwriting, ink, paper analysis, etc.), blood pattern analysis (i.e. the analysis of blood patterns discovered at a crime scenes), forensic toxicology (i.e. the examination of toxins or toxic substances involved in a crime), forensic geology (i.e. the study of soil, minerals, and other earth matter evidence), the list goes on. The point is that the areas of forensic sciences used before the court are extremely broad but there are core disciplines which are frequently called upon in unsolved criminal cases (i.e. criminalistics).

Old school criminalist hits the scope.

Many of the forensic sub-disciplines are rooted the natural sciences (the so called "hard" sciences) such as physics, biology, chemistry, etc. Other forensic sciences are rooted in the social sciences (the so called "soft" sciences) such as criminology, psychology, sociology, linguistics, etc. Many of these forensic disciplines are, therefore, well-established and themselves based upon empirical scientific studies and peer reviewed research.

Crime reconstructions should always be informed by multiple types of forensic findings and frequently require more than one type of forensic discipline. For example, two bullets may be fired through a glass window at a target and then become embedded as each bullet meets their final destination in a wall. This may, therefore, require forensic ballistic analysis of the bullet fragments to determine the bullet and likely weapon type. The pattern made by the projectiles which hit the window might also require the forensic analysis of the glass evidence and, therefore, a glass evidence specialist trained to understand the principles of Fractography (i.e. the study of surface fractures):

Glass evidence experts can identify how fractures are made, the likely sequence of breakage and with what kind of tool the breakages where likely made.

Both these forensic disciplines can inform a crime's reconstruction in various ways. For instance, glass fractures caused by high velocity projectiles such as bullets can have both percussion cone (the fracture that occurs when the projectile exists the rear side of the surface structure) and radial breakages. The sequence of which bullet was fired first might thus be concluded by observing that the cracks for the second impact appear to stop at the radial cracks (i.e. the flexion breakages) in the glass caused by the first projectile fired (i.e. the first bullet). A skilled glass evidence expert can additionally determine the side of original impact by determining the relationship between the rib cracks and hackle marks on the surface of the glass. Even the best forensic findings , however, are of little use in explaining the crime unless a full accurate crime scene analysis is conducted. The point is that reconstructions must be made with all evidence and forensic findings considered. Strategic presentations of evidence are , therefore, not only damaging to judicial outcomes but also to investigations.

(Tiwari, Harshey, Das, Abhyankar, et al. 2019; Curran, Hicks, Buckleton, 2000; Caddy, 2001)

Which bullet hole occurred first?

Forensic science is undoubtedly one of the most valuable the tools society currently has to assist forensic investigations and bring apprehended offenders to justice. Unfortunately, like all things subject to human error, corruption and folly, the findings of forensic scientists can be misused in the theatre of the courtroom. Understanding the problems of misrepresentations of forensic evidence is thus not only vitally important for avoiding wrongful convictions but also to ensure the future credibility and longevity of the forensic sciences. One of the major problems involved in wrongful convictions is that some forensic sub-disciplines accepted by the courts are still lacking in real credibility. Forensic odontology (i.e. the study and identification of bite marks found on a victim of a crime) for example, is one of the most controversial and arguably one of the forensic sub-disciplines under the most firm scrutiny by the forensic science community.

In a comprehensive review by Saks, Albright, Bohan, et al. (2016) the researchers highlighted that of all the forensic sciences likely to be eliminated due to a lack of validity, forensic odontology was considered most likely the next to deemed inadmissible as scientific evidence. The researchers pointed out that (like many other pattern-matching methods within forensic science) forensic odontology had a lack of empirical research to support the probative value of the claims made by forensic odontologists. They further highlighted that the Texas Commission on Forensic Science (TCFS), The National Academy of Sciences, and The Committee on Identifying the Needs of the Forensic Science Community in the United States have all reported firm dissent in terms of the validity of this forensic sub-discipline. The Innocence Project (USA) have been involved several cases in which bite mark identification has led to several wrongful conviction cases. Selby (2020) for instance has noted that the Innocence Project (USA) has documented 26 wrongful conviction cases caused directly by the findings of forensic odontologists from their case files.

Levon Brooks (left) and Kennedy Brewer (right), wrongfully convicted of sexual homicides due to bite mark evidence but exonerated due to the efforts of the Innocence Project.

"The CSI effect" is also recent phenomena which illustrates that watching fictional representations of forensic crime solving can result in negative judicial outcomes. This effect is now a well-established judicial phenomenon which has potentially devastating effects on criminal case outcomes (Lawson, 2009). Jurors who regularly watch fictional representations of forensic crime solving may also have a misplaced idea that forensic scientists are usually actively involved in a criminal case by default of being part of law enforcement. In actual fact the case detectives often select which items of evidence are relevant to test. This means that any confirmation bias towards a reconstruction theory on behalf of the investigator can affect the forensic input of a case. Additionally, the fictional highly technical findings by the exaggerated super databases on fictional crime shows give the general viewer a false idea that machines can replace or conduct logical analysis better than human beings using specialist computer programs (Schweitzer and Saks, 2007). It may surprise the public to know that in many states across American law enforcement departments still us floppy discs and have outdates technical resources. There is also little evidence to prove the successful use of high-tech tools for investigations and the research available indicates reliance upon technology actually causes police investigations to fail more frequently (Stroud, 2019). The media representations of high-tech policing of course frequently depict the opposite...

"The CSI effect" has also been found to be used strategically by both sides of the courtroom in order to give false credibility to both claims of innocence and claims of guilt (Kim, Barak, and Shelton, 2009). There are without doubt some positive fictional media depictions of wrongfully convicted cases which excellently highlight some of the hidden causal factors of wrongful convictions but unfortunately such depictions are less common.

Lawyer Vincent LaGuardia "Vinny" Gambini questioning eyewitness testimony in the film "My Cousin Vinny".

The question is how common is misrepresented evidence in relation to wrongful convictions? What effect do forensic findings have in courtrooms both in the U.K and in the U.S?

To answer this question let's look at the most common six causal factors involved in mistaken guilty verdicts.

The Six Factors involved in Wrongful Convictions.

According to a recent review by Duncan (2019), there are six main causal contributors behind wrongful convictions:

1. Eyewitness Identifications.

2. Invalidated or improper Forensic evidence.

3. False confessions.

4. Informants (misinformation by jailhouse "snitches" or police informants looking for plea bargain leverage etc.).

5. Governmental misconducted or state corruption.

6. Insufficient defence from underfunded public defenders or under unprepared attorneys.

This review notes that the Innocence project (2019) review of wrongful conviction causes quantified that 70% of wrongful convictions they reviewed were due to eye witness statements and misidentifications. 44% where due to invalid forensic evidence mistaken as credible evidence. 28% or wrongful convictions were due to false confessions, and the remaining 17% were due to police informant statements. A comprehensive analysis of misleading evidence in UK cases which lead to unsafe rulings (that is legal lingo for legal rulings which lead to wrongful convictions) reveals similar findings. Smit, Morgan and Lagnado (2018) examined the causal factors of misleading evidence using the 10, 859 cases from the files taken from the Court of Appeal in England and Wales in the UK. The researchers noted that of the 996 cases which involved criminal evidence, 22 % (i.e. 218 cases) involved misleading forensic evidence which lead directly to a wrongful conviction. Their analysis further proved that wrongful convictions due to misleading evidence presented to juries in the UK was likely far higher. Several other studies involving the rate of wrongful convictions in the U.K and the U.S have also shown the rates of wrongful convictions due to forensic evidence being misrepresented by attorneys has become a serious justice system issue (Cole, 2012; Collins and Jarvis, 2011). Misrepresentation of forensic evidence which had questionable probative value but was later misrepresented as highly relevant by prosecutors is established to be the most long-standing concerns in wrongful conviction cases (Gross and Shaffer, 2009). Kloosterman, Sjerps, Quak (2014) also argue that the communication of the error rates in DNA analysis also continues to be a growing concern because juries are frequently presented with DNA evidence without understanding the principles of statistical calculation or indeed have the mathematical capability to understand the potential errors in calculating DNA matching that may occur when an expert calculates a probable match.

DNA evidence can at times be misrepresented as ideographic probability when the evidence may actually only infer nomothetic possibility.

While eyewitness statements are found to be the most common causal factor surrounding wrongful conviction cases, nearly a quarter of people exonerated since 1989 in the U.S. involved convictions caused by false expert testimony or misleading forensic evidence (Selby, 2020). Part of the problem may be due to investigative theories preferred by the case detectives going unquestioned and thus a crime's reconstruction not subjected to the scientific method which seeks to systematically eliminate hypothetical models of an occurrence or event till the most logical hypothesis which reflects the forensic evidence remains. There are also many cases in which multiple of the causal factors of wrongful conviction have been noted in a single case making it extremely difficult for a wrongfully convicted victim of the state to prove their innocence. Logan (2021) for example, notes several cases in which forensic evidence was misrepresented, jailhouse informants provided false information, governmental misconduct was discovered, insufficient state provided defence, and poor investigative effort was present in many individual cases of wrongful convictions in Canada's Association in Defence of the Wrongly Convicted (now "Innocence Canada").

Guy P. Morin wrongfully conviction due to multiple causal contributors including forensic misrepresentation, false statements of jailhouse informants, and proven state misconduct.

The astute Kev's Crime Corner reader may be asking - if these problems within the justice system are in fact so prevalent then why is there not an equal amount of public outcry to combat these failures? The answer is arguably that justice system reform requires more social outcry to establish public demand for a more functional justice system than it is currently being given. This forensic examiner would also argue that the misrepresentations of the justice system and the constant manipulative emotive tactics of the mainstream media frequently distort the facts of criminal cases (as well as all issues the media covers) and the frequent crime show depictions of highly reliable law enforcement give the general public the misconception that investigations are always being handled by a team of highly motivated super cops. The reality is very different indeed. Additionally, the media regularly flood the average TV watcher (or newspaper reader) with so many fearful amygdala stimulating images and concepts that the responding reptilian cortex of the brain (the most primitive part of the human brain) which shuts down most critical thinking produced in the neocortex of the brain. The brain of the average non vigilant viewer is, therefore, paradoxically almost always on high unconscious alert and highly stimulated unconsciously by implied concepts and evocative images which provoke primitive drives. As such, the cognitive outsourcing towards the news media we see or hear is usually fuelled by the unconscious fearful reactions of most viewers. Little critical thinking takes hold in the mind of the average media consumer as a result. Unfortunately, the media have also become too skilled at manipulating the heuristic perceptions produced by the overstimulated limbic system of the brain which manifests as fearful collective group behaviours, misplaced trust towards the media, and unconscious beliefs.

The media depictions of crime, mass threats, trends, social values have a strong effect on the collective unconscious and the mass behaviour of the public.

While the research clearly shows that media depictions of fictional crime solving have a largely negative effect on court rulings, media attention given to wrongful convictions is arguably a good thing. Given that many wrongfully convicted victims of the state frequently are at the end of their appeal stage and may no longer be able prove misrepresentations of forensic evidence in court. It is not surprising that the wrongfully convicted seek media exposure to prove their innocence claims. The strategic media depictions of forensic evidence, however, may also actually subvert the course of justice if public outcry is given to a guilty inmate as opposed to an innocent one.

The question is how can we trust strategic media representations of evidence without having a forensic understanding?

Media depictions are always strategically worded and visualised. Crime evidence is no different.

This forensic examiner suggests the answer may be found in understanding the credibility of the evidence being presented in relation to the reconstruction narrative being proposed. With this in mind, this month's article will leave Kev's Crime Corner readers with a quote from the late Malcolm X...

See you corner dwellers again soon...