We are delighted to welcome this guest post from Eimear Moroney, IRC Postgraduate Scholar and PhD candidate at the CCJHR and School of Law, UCC
From Sherlock Holmes at the end of the 19th century, to the emergence in the early 2000s of CSI and its televisual progeny, to the current ‘true crime’ serialisation phenomenon, public interest in forensics has long been piqued. In practice, cold cases are being re-opened and long-condemned individuals have been exonerated on foot of forensic (especially DNA) evidence, owing to to: (a) heightened modes of scientific analysis; and (b) the likes of the Innocence Network, a global association of not-for-profit organisations, which strive to prove the innocence of the wrongly convicted (see further: Irish Innocence Project). Following the activation of Ireland’s DNA Database System in November 2015, the nexus between forensic evidence, guilt and innocence has never been more topical.
The forensic science of popular cognisance developed, in the aftermath of the industrial revolution, out of concern to identify criminals for the purpose of meting out appropriate punishment: differential punishment was accorded to first time offenders and recidivists. This focus on repeat offenders manifested in Ireland and England through the enactment of the Habitual Criminals Act 1869 and the Prevention of Crimes Act 1871, the latter of which prescribed the maintenance of a Habitual Crime Register, entailing the photographing and measuring of prisoners. This anthropometric system, which measured prisoners’ heads and limbs, subsequently incorporated fingerprint marks. Less cumbersome and ultimately more accurate, fingerprinting supplanted the metric system.
As forensic techniques developed, policing agencies realised the Locardian principle “every contact leaves a trace” could play a role in criminal investigations. This role was traditionally conceived as a corroborative one within a case construction model of policing: forensic evidence was used to build up a case against an identified suspect for prosecutorial purposes.
However, a move away from a reductive model of reactive policing towards proactive, intelligence-led policing is increasingly discernible, both internationally and more locally: see for example, An Garda Síochána Policing Plans 2014 and 2015. Concurrently, Williams has suggested that the true utility of forensic science lies in intelligence-led policing, “… in other words as information to further direct ongoing criminal investigations and disruptions, rather than as props in the dramaturgy of a criminal trial.”
In Ireland, a 2007 report entitled Review of Resource Needs in the Forensic Science Laboratory and the Wider Scientific Context in Ireland averred that “[t]he work of a forensic laboratory does not only concern evidence for the courts but should also give impulses to the investigation. The findings of the laboratory can often give valuable information that can assist the investigation or can be used as intelligence.” This theme has grown roots in the context of Ireland’s long-gestated DNA database, from the Law Reform Commission, who in 2005, described the proposed database as an “intelligence tool,” to the Minister for Justice and Equality, who in November 2015 described the database as “a high quality intelligence tool” and “a hugely significant development in assisting the Garda Síochána in the investigation of crime.”
The utility of any database is necessarily commensurate with the quantity of samples contained therein. Accordingly, the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 sanctions the sampling of detained suspects, so as to generate a profile for the reference index of the DNA database system, under the authorisation of a member of An Garda Síochána not below the rank of Sergeant. In turn, this profile may be compared with profiles held in the crime scene index and the missing and unknown persons index. The sole fact of detention for a “relevant offence” is sufficient to ground the taking of a sample for this purpose. However, in order for this profile to be used for evidential purposes, the authorisation of a member of An Garda Síochána not below the rank of Inspector is required. To authorise same, the member must have reasonable grounds for suspecting the involvement of the detainee in the commission of the offence for which they are detained, and furthermore, that the sample will tend to confirm or disprove the involvement of the detainee in the offence.
In acknowledging that information generated by forensic science can form part of the detection process notwithstanding that such data is not (or possibly was never intended to be) admitted into evidence, the 2014 Act arguably places intelligence-led policing on a statutory footing. It follows whilst forensic science was initially used to compile and maintain a record of criminal identity, this very record-keeping function has had a renaissance in the Digital Age.
However, it cannot be forgotten that forensically generated information is nonetheless “potential evidence.” To quote Ashworth and Redmayne, “[t]he possible end result of the process is adjudicative: a trial. Whether a trial will result will depend on many other factors. … But what matters is the potential of the probability. Criminal procedure is a process that may lead to trial.”
Notwithstanding that a minuscule fraction of offences proceeds to a contested trial, the criminal justice continuum, and any analysis thereof, must be ultimately trial-oriented. Whether providing the impetus to an investigation, or eliminating potential suspects, it is clear that forensic science can impact the course of a criminal case prior to trial. After all, to advance along the continuum from criminal investigation to trial entails traversing a number of preliminary stages: a negative determination with respect to the decision to prefer charges results in exodus from the continuum prior to trial. Hence, the very “evidential potential” attaching to forensic data, from fingerprints to DNA analyses, may impact, or indeed determine, decisions throughout criminal process, including those pre-trial decisions relating to arrest, prosecution and plea.
Having regard to the potential for forensic science to play a determinative role in the pre-trial process, there is a heightened need to ensure the reliability of forensic science throughout the low-visibility portions of the continuum. When tendered as evidence at trial, forensic data is, in theory at least, subjected to the checks and balances of the adversarial process: it must first be admitted into evidence before being subjected to robust cross-examination. However, there is no equivalent oversight of forensic evidence pre-trial.
This lack of scrutiny is all the more disquieting given that, internationally, forensic science has received bad press in recent years: for example, see Broeders (reference below); here; and here. However, caution must be exercised before extrapolating from other jurisdictions.
Two agencies conduct forensic analysis for the State in Ireland, Forensic Science Ireland (FSI) and the Garda Technical Bureau (GTB), both of which sought and achieved accreditation to International Organisation for Standardisation (ISO) 17025, the international laboratory standard for calibration and testing (FSI in 2002 and more recently, the GTB in 2016). Maintaining this status requires that the laboratories must pass annual, independent inspections, whilst all routinely used methods must be validated and proficiency trials must be conducted. The efforts of FSI and the GTB in this respect must be recognised not only as positive developments but also as necessary advancements, having regard to the advent of forensic databases and the newfound emphasis on proactive, intelligence-led policing.
Ashworth, A. & Redmayne, M., The Criminal Process, 3rd ed. (Oxford: OUP, 2005)
Barnes, J.G., “History” in National Institute of Justice, The Fingerprint Sourcebook (Washington DC: US Department of Justice; Office of Justice Programs; National Institute of Justice, 2012)
Broeders, A.P.A, “Of earprints, fingerprints, scent dogs, cot deaths and cognitive contamination-a brief look at the present state of play in the forensic arena” (2006) 159 Forensic Science International 148
Cole, S.A., “Fingerprint Identification and the Criminal Justice System: Historical Lessons for the DNA Debate” in D. Lazer, ed. DNA and the Criminal Justice System: The Technology of Justice (MIT Press, 2004)
Cole, S.A., Suspect Identities: A History of Fingerprinting and Criminal Identification (Cambridge: Harvard University Press, 2009)
Finn, J., “Photographing Fingerprints: Data Collection and State Surveillance” (2005) 3(1) Surveillance and Society 21
Littlefield, M.M., “Historicizing CSI and its Effect(s): The Real and Representational in American Scientific Detective Fiction and Print News Media, 1902-1935 (2011) 7 Crime Media Culture 133
McCartney, C., Forensic Identification and Criminal Justice: Forensic science, justice and risk (Devon: Willan, 2006)
Redmayne, M., Expert Evidence and Criminal Justice (Oxford: OUP, 2001)
Roberts, P., “Science in the Criminal Process” (1994) 14(4) Oxford Journal of Legal Studies 469
Schweitzer, N.J. & Saks M.J., “The CSI Effect: Popular fiction about forensic science affects the public’s expectations about real forensic science” (2007) 47 Jurimetrics 357
Thornton, J.I., “Uses and Abuses of Forensic Science” (1983) 69 ABA 289
Twining, W., Rethinking Evidence: Exploratory Essays, 2nd ed. (Cambridge, CUP, 2006)
Williams, R., “Policing and Forensic Science” in T. Newburn, Handbook of Policing, 2nd ed. (Devon: Willan, 2008)