Ethics in the Courtroom The Scientist's 16 Perspective

There is a need to recognize the difference between the “opinion of a scientist” and a “scientific opinion.” The former may have no scientific basis and, if so, is out of place in any scientific report or testimony.

—Peter Deforest

Professor of Criminalistics at John Jay College of

Criminal Justice, American Academy of Forensic Sciences (AAFS), 2004

Introduction

Law and forensic science are complementary yet contradictory professions. Although both deal with presenting evidence in a court of law, the overall methods and goals of the two professions differ significantly, which presents challenges that exemplify the differences in the inherent nature of the law and scientific cultures, including overall function, value, and goals. Like the differences between forensic science and criminal justice, each professional culture has its own standards for conduct, beliefs, and obligations. How standards are applied may create opposition for lawyers and scientists.

The culture of law is adversarial. It is composed of people who take a variety of roles. First, there is the judge who acts as a gatekeeper to assure that the process runs smoothly and that rules are followed. There are opposing sides that are represented by the lawyers or legal advocates. The goal of each side is to present the best case on behalf of their client to ultimately walk away victorious. Finally, there is the jury and the expert witnesses, who act as the impartial third party in the courtroom. There will be an expert witness to provide facts and educate the jury so that the jury may come to a conclusion. The advocates will utilize the experts’ testimony as a tool to support their side; however, the expert must remain impartial regardless of the lawyers’ motivation. In this adversarial system, there will be a winner as determined by the jury. This decision is based on a number of factors such as who provides a better argument? who seems to have more knowledge? who has a better spin? who is more convincing? who provides the stronger case? how did they do it?

Table 6.1 Differences of Cultures: Science and the Law

Issue

Science

Law

Truth

Serves the interest of itself

Serves the interest of the client

Communication

Open

Privileged

Process

Unbiased and systematic

Adversary

Goals

Provide socially valued goods and services

Advance human knowledge Eliminate false beliefs Documentation

Serve the client

Produce a better argument than the opposing counsel

Science and the law each have concerns. Forensic scientists often find fault in the unethical conduct of aggressive attorneys, even though the attorney is fulfilling his or her duty of representing the client’s best interests. Attorneys do not need to be viewed as good people in order to be good at their work; some utilize tactics that, although not looked upon favorably from a social perspective, are a key component to their courtroom success. Conversely, attorneys are often frustrated by scientists who may not provide conclusive evidence. Table 6.1 shows the primary differences between the two professional cultures. As shown, the primary difference between cultures is communication and goals.

How should attorneys and scientists bridge the communication gaps within the court system? Mandatory disclosure of all scientific evidence before a trial would result in better information being provided to the triers of fact (or the judge and jury) (Lucas, 1989). It is important to keep in mind that miscommunication in the courtroom may have irreversible consequences to the case, the lawyers, the experts, and, most importantly, the victims and the defendant(s). Information that a scientist deems ethically important may not be possible to disclose during the course of expert testimony; experts need to have an awareness of the rules governing their testimony to provide information that, while ethically necessary, may not be legally warranted. The final and most important step toward better communication is realizing that bias exists. To overcome bias and to better serve the parties involved, the court could require the forensic scientist to present testimony for the side not retaining his or her services. Also, an expert may advise the court directly (instead of, or in addition to, other experts) upon the judge’s request. The concern in this case is that the expert or his or her testimony is then granted more weight because of his or her lack of vested interest, which could create a false sense of security that there is no bias (Bird, 2001). These steps may possibly decrease gaps in communication while allowing the cultures of science and the law to coexist more amicably.

The key to overcome paradoxes between professional cultures is balance. It is quite possible to work within the guidelines set forth by both professions when there is mutual respect, honesty, and an understanding of the differences in cultures. The means to understanding variations is the realization that the scientist has a duty to describe the evidence as it is, whereas the attorney has a duty to describe the evidence in the most favorable light for his or her client (Lucas, 2007). The intricacies of the relationship between law and forensic science are further examined through the roles each plays in the judicial system.

 
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