©
2020 Charles A. Steele
Each semester I pose a
question to my forensic science students: “What is more important, the
integrity of the system or the outcome of a single case.” As one might expect,
their answers are split with the majority voting for system integrity. Of
course, if you think back to my last blog, Why do you think you know what you think you
know, they may simply be answering that way to agree with me. I suppose
we won’t really know their ethics until they are in the position to have to
choose.
My question isn’t just
a hypothetical construct. It is a real ethical choice that professionals often
have to make. It is at the core of major social conflict and has been for some
time now. For example, before it was rescinded
the Dear Colleague Letter,
schools were instructed under Title IX, to conduct their own investigations and
issue punishment for allegations of sexual harassment and assault “even
if the police do not have sufficient evidence of a criminal violation.” This instruction was applauded in the news and popular media. It didn’t
matter if the evidence was there or not or the witness was credible or not. A
large portion of the population wanted justice in the form of a specific
outcome.
Consider the Briana
Taylor case. The prosecutor, duly elected and charged with directing justice,
decided that the evidence against the officers would not support a murder
charge. They acted within the bounds of the law. None the less, there is major
social pressure from those who do not like the result to ignore the rule of law
and seek a punishment.
The outcome of the
individual case is personal and emotional. These are strong motivations, and it
seems to me that people tend to be more concerned with the individual instances
rather than big picture issues. If we can bend the rules to achieve justice,
shouldn’t we?
A long time ago when I
was a stock boy and saw a person put merchandise in their bag and walk out of
the store. I took off after them. Seeing me in pursuit, they tossed the
merchandise and kept going. One of our local police officers saw me running,
and joined in the chase. By the time he caught up to me I had retrieved the
merchandise and was walking back to the store. I told the officer what had
happened. Another squad had come from the other direction and caught the
shoplifter. Of course, there was no evidence in the shoplifter’s bag, just the
testimony of a teenage kid. So the first officer took the items from me and put
them in the bag were the second officer then “found” them. On this evidence
shoplifter was convicted.
Was this right or
wrong? The person was guilty.
Let me give you another
example. I had the opportunity to observe a trial where the defendant had
confessed to a crime before he had been read his rights. Through a variety of
events all of the forensic data was corrupted or otherwise worthless. But, the
prosecution and the experts knew for a fact that he was guilty of murder, even
if they couldn’t “officially” know it. So, the prosecution presented expert
after expert who skewed their testimony and present hypothetical evidence.
Again right or wrong?
Justice system vs. justice in the individual case.
When we look at the
vast majority of people who plant, fabricate or adulterate the evidence, we are
not seeing sociopaths who are trying to do harm. They are mostly people who know
they are right and want to see justice done … at all costs. I think most people
at very least empathize with this desire. If it were our items stolen or our
loved one who was murdered would we want the guilty to go free because of a
procedural mistakes? The temptation to bend or break the rules in the cause of
justice is strong.
Now consider the woman
who was convicted of killing her daughter in an arson fire. The police were
positive she set the fire. So much so, that arson investigator’s report that
the fire was an accident was changed by his superior to indicate that the fire
was deliberate. She spent years in prison for the murder of her child based on
false evidence.
Right or wrong? The
woman was innocent.
As forensic scientists,
there are many principals that have evolved to guide us in our jobs and to stop
us from doing so and causing harm in our intent to do good. Perhaps these should
be more globally applied in society. We start with Locard’s Principal, “every
contact leaves a trace.” We know to separate the value of class vs.
individualizing characteristics. We understand the difference between
confirmatory and collaborative evidence. We are wary of observer bias. And
perhaps most importantly, we understand the need for proper chain of custody.
In the simplest terms,
chain of custody is a log of everyone who has touched or interacted with a
piece of evidence from the moment it is discovered until the final resolution
of the case. If at any time the chain is broken, that piece of evidence is lost
to us. This is true no matter how informative or important that evidence might
be to us. This is true no matter how much we want to use it.
I choose this principal,
but it seems to exist to most people in a moral gray zone. It has been
suggested that the this is caused by a misconception or at least incomplete
conception of the purpose of a criminal trial. Most people believe the trial is
concerned with the past; what happened?
When people see the
“smoking gun” they don’t tend to care where it came from. After all, if it
proves our case, does it matter if procedural chain is intact? If we have a gun
that matches the bullet recovered from a murder victim with a fingerprint of
the suspect on it, do we care that it was lost for a few hours, or days? Yes,
we do.
We need to establish
the authenticity. "[W]hen real evidence is offered an adequate foundation
for admission will require testimony first that the object offered is the
object which was involved in the incident, and further that the condition of
the object is substantially unchanged." 2 C. McCormick, Evidence 8 (4th
ed. 1992)
Federal Evidence Rule
901(a) codifies this requirement: ''The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is what
its proponent claims."
Start with the first
link in the chain. Typically, this is held to be when the investigators gain
access to the evidence. From that point forward the evidence is controlled so
that no changes can be made without notice. However, the interpretation of the
exclusionary rule of the fourth amendment require that when there is time
between the discovery of the evidence and its delivery to police the courts
need to be suspicious. United
States v. McKeever, Zupp v. State, Williams
v. State and Thornton v. State all highlight this point. It’s not that evidence
found by someone other than law enforcement can’t be used, but its authenticity
and protections must be established.
In order to establish these,
the police must determine how the evidence was found and preserved before
truing it over. Is the evidence authentic? Did the party that found the
evidence have motivation or opportunity to adulterate the evidence? A lot of
inferences can be determined based on what was done post finding the evidence and
subsequent presenting the evidence.
A man finds a gun in a
park after a shooting. Instead of truing it over to the police, he keeps it for
a week. Eventually he brings it forth and DNA is found on the gun linking to a
suspect. Questions like: why did he keep it for 5 days? Did he have any reason
to adulterate the evidence? Did he have the ability to adulterate the evidence?
How was it stored? Did anyone who did have access have reason to adulterate the
evidence?
Overkill? If the person
who had the gun for 5 days was a business rival of the suspect and was seem
picking up a napkin that the suspect left behind at a restaurant in the day period now we would agree that there is
reason to suspect the evidence. The first link therefore backs up to the
finding of the evidence regardless of who found the evidence. If we cannot
establish this first link reliably then we must disallow the evidence or risk
including manufactured evidence into the process.
The links in the middle
are the controls of what has happened after it was found. In general, the evidence
comes into police custody, but it may wind up passing throgh other hands. A
defense attorney may throgh their own investigation find evidence in a criminal
case. If this evidence is going to be use in court, proof of control and
condition will still be needed.
But what happens if the
evidence is handed off to other interested parties? Does this violate the chain?
Again, it can for the same reasons as above. If there is an opportunity and
ability for the evidence to be adulterated, we again have a problem. It’s all
about protecting the evidence to protect the system. We cannot allow evidence
to be manufactured. So, if we cannot be certain that it is real, we have to
ignore it.
No consider these
emails. Where they found during a warranted search by law enforcement? No. Were
they found by someone during the normal performance of their work
responsibilities? No. Were they turned over to law enforcement immediately? No.
If they are real, they
were found by someone stealing form another person. Ok, maybe you don’t care
about that. They were held for a longtime and turned over to a political fixer
to be used to attempt to create the same October surprise that occurred in
2016. Under these circumstances, they cannot be used. The motivation to and ability
to fabricate is simply too high to be allowed as legitimate evidence.
As I said above, most people
believe the trial is concerned with the past; what happened? But it is about
the future; what happens next. And the future needs us to preserve the integrity
of the system so it and preserve the safety of society. So, should we care
about the Hunter Biden Emails? If the integrity of the system to you then the answer
is a very clear “no.”
