I recently read Mohammed A. Almazrouei, Itiel E. Dror, and Ruth M. Morgan’s The forensic disclosure model: What should be disclosed to, and by, forensic experts?.
Almazrouei and colleagues lay out a model of “forensic disclosure” or general principles for what forensic scientists should be told about a case and what they should disclose about their work. The article focuses on the psychology of forensic examiners and thus the information that should be disclosed about the factors that may have biased the examiner:
The importance of considering the role of judgement and decision making within the forensic science process has been demonstrated in a range of studies (Roux et al., 2012; Taylor et al., 2016a, 2016b; Stevenage and Bennett, 2017; Nakhaeizadeh et al., 2017). Decision making is an inherent and intrinsic part of the forensic science process (Morgan et al., 2018), and yet it is arguably one of the least well defined and articulated parts in the delivery of a forensic reconstruction. It has been identified that decision making in forensic science is susceptible to extrinsic and intrinsic factors and that unconscious biases can occur in a wide range of different scenarios. Therefore, for minimally biased evaluations of forensic materials and for transparency to be achieved, ‘forensic disclosure’ needs to be considered. Forensic disclosure establishes what should be disclosed ‘to’ and ‘by’ forensic examiners. It is about making sure that forensic examiners get the necessary task-relevant information and forensic materials, and that examiners then provide the relevant information and materials to the appropriate people. In addition to information and forensic evidence management, forensic disclosure allows transparency of the context, interactions and pathways of decision making within the forensic science process, thereby disclosing how an inference was made, and within what context.
The forensic disclosure model we present here therefore addresses both what is disclosed to the forensic examiner prior to and during analysis being undertaken, and what the forensic examiner discloses formally in their report and court testimony, as well as in any informal discussions and interactions (e.g., discussions with other forensic examiners, lawyers, police officers, etc.). There are five questions that need addressing for effective implementation of the forensic disclosure model (which are illustrated with examples in Section 2): What information was given to and given by the forensic examiner? When? By/to whom? How? and Why?
I thought this article was very useful in putting together a great deal of research about what factors influence forensic examiners and then linking that to disclosure. Moreover, it gives several tangible examples of the framework it is laying out. I’ve also been thinking and writing a lot about transparency in expert evidence (see here and here). In particular, I’ve been suggesting that practices from open science are even more important in criminal legal contexts where accused parties require a full understanding of the scientific case they face. This matches up well with Almazrouei and colleagues’ conclusion:
When possible, forensic experts should share the actual evidence material with other experts, even and especially, with the experts retained by the opposing legal side. This should be done as a matter of routine, without requiring a subpoena from the court or approval by the lawyers. Scientists should share the evidence materials and findings so other scientists can run their own tests, make their own observations, interpretations, conclusions and forensic reconstruction in order that the court can be equipped with a full picture of the forensic science evidence and what it means in a specific case. Sometimes this is not technically and pragmatically possible (e.g., when a test destroys the evidence), but there are instances when there are no practical reasons to preclude sharing the evidence. Especially in the adversarial legal system, the concept of ‘sharing’ is currently minimal; often there is no willingness among the legal sides to share forensic science evidence findings, forensic evidence materials, or to ‘share’ a common forensic expert (Dror et al., 2018b).
According to the forensic disclosure model, scientific evidence should be routinely shared by both the prosecution and the defence regardless of the side retaining the forensic expert(s), or who they work for. Not only does the adversarial legal system make such a ‘sharing’ difficult, but economic interests can often pose issues around sharing knowledge (especially in a commercial market environment where such knowledge can have commercial value). The forensic disclosure model that we put forward in this paper is underpinned by the assertion that science and fair justice mandates that there is an openness and sharing of scientific findings, and even the scientific evidence materials. Forensic disclosure calls for transparency and maximum disclosure of the science, so science can be used (rather than abused or misused) in the administration of justice within the legal system.
Whilst there are legal and commercial obstacles that can hinder the effective implementation of this element of the forensic disclosure model, the fair administration of justice is paramount. Therefore, transparent and open discussions, particularly between the legal and forensic science domains, on the concept of routinely sharing the scientific evidence among both sides of the adversarial legal system are necessary looking forward. Policy changes can enable change, such as when the disclosure practice in the UK were revised (McCartney, 2018), but there is still some way to go to achieve the transparency and disclosure that is necessary.
There are lots of open science concepts in there!
It was also good to think about some complementary ideas, especially from the realm of human factors. Going forward, I will be very interested to see if forensics labs take this guidance seriously. While some clearly are (e.g., the Houston Forensic Science Center) , it seems to me that beyond the lack of a framework (until now), the biggest thing holding them back is a lack of institutional will.