Calificaciones y otras medidas de fomento

Introduction

Through their analyses of legal practices and processes of knowledge produc- tion within them, science and technology studies (STS) scholars have made considerable contributions to critical scholarship on law, science, and society in recent decades. One of the most significant achievements of STS scholar- ship has been its interrogation of the ways in which scientific and technological knowledge and artefacts are embedded in legal systems. Nevertheless, there are other aspects in the domain of law – and in particu- lar also in criminal justice – which have not yet seen the same level of critical scrutiny. In these areas, the scope and direction of STS research specifically has been restrained by the tacit acceptance – the black-boxing – of some of the categories that other professional experts operate with. In the context of an area such as STS, whose emergence and whose identity is closely linked to the challenging of assumptions and casting light on ‘hidden’ matters, this is surprising. In this chapter, after discussing in more detail two such under- explored issues within STS and socio-legal scholarship, I will reflect on the conditions and processes within and by which many scholars operate that account for this phenomenon. I will conclude by highlighting two strategies to address these issues.

Unexamined assumptions

About ten years ago, in an article discussing the first wave of socio-legal stud- ies of wrongful convictions, San Francisco-based legal scholar Richard Leo spoke of the salience of ‘unexamined assumptions’ within this literature:

The unexamined assumption in virtually all miscarriages writing and scholarship is that [the reasons examined for miscarriage of justice] are actual causes, and once they are identified, we will know how and why the problem of wrongful conviction occurs. […] But eyewitness misidentification, false confession, and police and prosecutorial

misconduct are not actual root causes. By identifying the causes, we beg the obvious, deeper causal question: What are the causes of eyewitness misidentification? What are the causes of police-induced false confessions? What are the causes of police and prosecutorial conduct? [… Overall, scholars] need to move beyond the legal categories and concepts handed to them by journalists and lawyers and start to reconceptualize the study of miscarriage of justice, most fundamentally, as about the study of human behaviour and human error in social and organizational contexts.

(Leo 2005: 213; see also Machado and Prainsack 2012; Heinemann et al. 2012) Leo’s critique was primarily aimed at legal scholarship, of course, and both research in STS and socio-legal studies has certainly gone a long way in doing exactly what Leo calls for; namely, challenging the categories and concepts handed to them by actors in the field they study. Seminal STS work on law more generally, and criminal justice in particular, has problematised hitherto unchallenged categories, practices, or technologies such as the belief in the self-corrective ability of science;1_{the rule of law over science;}2_{the notion of}

expertise;3 _{the truth claims inherent in scientific, technical, and other kinds}

of evidence;4 _{and the relationship between materiality and conceptuality.}5

Both STS and socio-legal scholarship have also helped to complicate the neat and linear way in which success stories about science and technology in crim- inal investigation and criminal justice are told.6

Yet there is still work left to do. We have not yet engaged sufficiently with some unexamined assumptions within criminal law and investigations, obstructing a deeper understanding of norms and practices in the field. In the following section I will discuss two broad issues in the field of criminal justice within which unexamined assumptions are salient and under-explored discourses and practices carry significance, dis/empowering particular actors, institutions, and technoscientific practice: first, the nature of conviction and of convicts; and second, the role of forensic DNA testing as a technology of individualisation in the sense that they establish a robust link between a

1 See, for example, Jasanoff 1995; Lynch et al. 2008; Obasogie and Duster 2011. 2 E.g. Jasanoff 1995; Mercer 2002.

3 E.g. Smith and Wynne 1989; Jasanoff 1995; Bloor 2000; Cole 2001; Edmond 2004; Lynch and Cole 2005; see also Collins and Evans 2002; Collins and Evans 2007. 4 For a problematisation of scientific and technical evidence, see, for example, Smith and

Wynne 1989; Jasanoff 1995; Angell 1996; Lynch et al. 2008; Williams and Johnson 2008; Williams 2010; and Pottage 2011. For a discussion of other kinds of evidence, see also Bloor 2000; Cole 2001; Golan 2004, Lynch et al. 2008; M’Charek 2008.

5 See e.g. Golan 2004; Gillespie 2006; Pottage 2011; Faulkner et al. 2012.

6 See, for example, Cole 2001; Aronson 2007; Jasanoff 2010; Kruse 2012; Prainsack and Toom 2012.

person and another construct (here: a crime). These examples have been salient within my own research on forensic DNA technologies and practices,7

and I hope that they will be able to help to illuminate some of the dynamics underlying the (occasional) ignoring of important social and epistemic assumptions and issues in other areas of STS scholarship.

Power, conviction and convicts8

In recent years, the Innocence Project, a US-based litigation and public policy organisation (founded in 1992) dedicated to overturning wrongful convictions, has received a lot of attention in socio-legal scholarship and beyond (see, for example, Risinger 2007; Krimsky and Simoncelli 2011; Krieger 2011; Machado and Prainsack 2012). Although the Innocence Project was founded in the US, and most of its activities are still focused within that region, similar projects and initiatives in other parts of the world have emerged. Besides the obvious and tangible effects that the work of the Innocence Project has on the lives of those who were exonerated due to the pro bono work of its members, it has also had a very pronounced impact on public awareness of the problems and possibilities for errors inherent in the social, legal and technological practices that are employed in criminal inves- tigation and in court. It is no coincidence that calls for more scrutiny of forensic science and practice – wherever possible according to scientific stan- dards – are increasingly made by professional institutions and within reports commissioned by governments (e.g. National Academy of Sciences 2009).

The supposition underpinning such calls, however – namely that making forensics more ‘scientific’ will help solve the problem of wrongful convictions – ignores insights of several decades of STS and socio-legal scholarship, which have challenged this rather simplistic conceptualisation of the role of science in problem solving (see also Edmond 2011). In this respect, such understanding, that ‘better’ forensic science will solve the problem of wrong- ful convictions, contradicts the thrust of much STS and socio-legal scholarship.

7 My own research in this area has so far been twofold: it has focused on exploring margin- alised perspectives on the role, utility, and broader societal meaning of bioscientific applications in criminal investigation and forensics (e.g. Prainsack and Kitzberger 2009; Machado and Prainsack 2012), and on the shifts in the distribution of power and agency that are intertwined with regulatory measures and approaches (e.g. Hindmarsh and Prainsack 2010; Prainsack and Toom 2010, 2012).

8 I use the term ‘convicts’, and not ‘offenders’, because the latter indicates that they have actually committed an offence or a crime, which the former term, strictly speaking, does not. Moreover, speaking about ‘convicts’ makes sense with regard to the argument about their experience with forensic technologies; a certain level of contact with criminal investi- gation and the criminal justice system is required for this to materialise (i.e. somebody who has committed a crime but never been the subject of an investigation is not somebody whom forensic technologies have been used upon, as argued here).

In another respect, however, the spirit of calls for a better research culture in forensics resonates with STS scholarship: it implies the admission of a particular kind of mistake on the side of actors in the legal system; i.e., that they have not taken a more critical stance towards expertise and evidence in the past. This admission reinforces STS’ critical stance ‘through the back door’. And this is indeed how the lesson of the Innocence Project seems to have been received within STS so far: things go wrong when the authority of established experts (in any relevant context: as fingerprint experts, molecular biologists, etc.) is accepted without much scrutiny and reflection (see also Bal 2005).

According to an analysis of the causes of the wrongful convictions of the first 239 people that the Innocence Project has helped to exonerate (West 2010), however, it was not the use of high-tech forensic applications, but something very different that was identified as the single most important basis on which the conviction had rested: false eyewitness evidence. This finding has not had much traction in STS research. Perhaps this is to be expected, as STS is by definition the social study of science and technology, and eyewitness testimony does not obviously fall within this remit. But the silence of STS scholarship on this issue could also stem, at least partly, from the fact that the story of the Innocence Project so far – a narrative of human error (wrongful convictions) that are overturned with the help of a technology (DNA testing) – has the culprit and the hero in the wrong roles. STS scholars have spent decades countering technological instrumentalism, the view that science and technology are trustworthy in principle and ‘tarnished only by the humans using it’ (Edmond 2011: 133). Accordingly, the fundamental lesson from the Innocence Project – i.e., that technology helps undo the mistakes that people make – conflicts with some of the core tenets of STS. By remaining silent on these issues, the technocratic systems of power that give life to current mech- anisms of conviction, are implicitly validated.

The core narrative of the Innocence Project is also dependent on a clear distinction between ‘perpetrator’ and ‘victim’, concepts that have also remained largely unchallenged within STS. It is true that those scholars whose work has helped to debunk assumptions of infallibility of forensic practices and technologies are usually careful not to conflate the label ‘convict’ with the assumption of guilt, but somehow this has had no wider implications so far. This is even more surprising in the context of a discipline that has so long been engaged in making science and technology more participatory and more ‘democratic’ through the inclusion of the experience and expertise of people other than social elites and professional experts. Although many convicts have relevant and diverse expertise and experiences in the area of crime scene technologies, this group has not been included in such efforts.

The experience and expertise of convicts in this respect can be twofold: first, convicts are, in their majority, a marginalised group who have little, if

any, influence over how science and technology are used on and against them, while this use has, in many instances, fundamentally life changing effects. Thus many convicts are able to provide perspectives on science and technology from the viewpoint of some of the least powerful actors in a given field. Second, some convicts have relevant ‘alternative’ professional knowledge pertaining to technology use: this applies to so-called ‘career criminals’ for example, whose technical and technological knowledge in the realm of forensics applies to avoiding, concealing, or destroying crime scene traces (Prainsack and Kitzberger 2009; Machado and Prainsack 2012).

To clarify: I am not suggesting that convicts necessarily should be included in our quest for making science and technology more participatory. Rather, I argue that the fact that they have, in general, not yet been included in such endeavours, while other marginalised groups have (e.g. people with disabili- ties, older adults, ethnic minorities), is instructive. What exactly does this disempowerment tell us? It could be argued that the relative absence of perspectives of convicts from discussions about science and technologies used in criminal investigations and in courts is due to the fact that prisoners are virtually inaccessible as research participants: the obstacles put up by research ethics guidelines, one could say, are so difficult to overcome that they discourage researchers from even trying. This may be a compelling argument insofar as it pertains to prisoners; yet, the group of convicts is much wider, including many people who have never been in prison, and those who were released. Although there may be difficulties in reaching members of these groups as well, these obstacles are regularly no more diffi- cult to overcome than those in respect to working with members of other marginalised groups.

A much more plausible explanation for why convicts have not been listened to in STS scholarship is because there is a tacit acceptance of a wider societal assumption that they should be at the margins of society. This is also what the guilty verdict implies: being guilty means that the guilty person has infringed the social order in some significant way, so that the convicted person is placed outside society, if only temporarily (at the very least, during the commission of the breach; at most, in the literal sense, i.e. being ‘locked away’ for life) (see also Taslitz 2011). Because they are at the margins – or even outside – of society, they have not been included in previous efforts of fostering dialogue and exchange at the interface of science and society. And because the particular distribution of social status and power between actors from criminal justice systems and the supposedly law abiding citizens that they represent on the one hand, and convicts on the other, is tacitly accepted within wide ranges of STS scholarship, other truth claims inherent in criminal justice systems are also taken on board.

of particular kinds of experts. This, in turn, has two consequences. First, the expertise of convicts pertaining to the science and technology used in legal processes is to be subordinated to, or to be ignored at the cost of, the expert- ise of other experts. Second, such expertise on the side of convicts is not recognised as professional expertise, even if certain actors do refer to it as such – typically, ‘career criminals’, who see their criminal activities as their jobs (Machado and Prainsack 2012).

In sum, consideration of the nature of conviction and convicts in terms of power and technoscience underscores the importance of refocusing the crit- ical scrutiny of STS and also socio-legal studies. First, an emphasis on what are ‘obviously’ scientific and technological matters obscures the great degree to which other forms of epistemic and material practices play important roles in the technocratic machinery powering the systems within which conviction occurs (and the debates associated with this). Second, an uncritical accept- ance of dominant societal narratives concerning the nature of ‘the convict’ disempowers convicts as a group and fails to recognise the diverse kinds of expertise they often hold (with implications for both democratic processes and criminological discourse).

In what follows, I turn now to address an instance where STS scholarship has largely adopted an unexamined assumption underpinning the field of forensic science (specifically, forensic genetics) into its own domain.

(Re)producing DNA testing as a technology of individualisation

A recent article by the geneticist António Amorim makes two propositions: first, that ‘the results of forensic DNA testing are limited in both theoret- ical and practical terms’, and second, that an understanding of the reasons for these limitations is crucial even for people outside the field of forensic genetics (Amorim 2012: 260). Most scholars in both STS and socio-legal studies will not be surprised by these suggestions; they have long attended to the limitations of forensic DNA testing. Yet when reading Amorim’s argument in detail, some deeper implications of these limitations move to the foreground.

To begin with, in contrast to fingerprints, for example, which are recorded in the form of visual data (and their annotations), traditional DNA tech- nologies are recorded as a small set of discrete, numeric data (see also Cole 2001; Lynch et al. 2008). When we look at a pre-defined set of specific places on the genome, then we find that different people have different numbers of so-called ‘short tandem repeats’ (STRs, i.e. repetitions of chains of nucleotides) in these places.9_{The larger the number of such places (loci)}

that are analysed, the smaller the likelihood that two different people coincidentally have the same number of repetitions.10_{This is the basic under-}

lying principle of ‘traditional’ forensic DNA analysis. It is a principle of stratification, of assigning people to different groups according to their genetic markers. This situation would, in fact, be no different if we did not count the number of repeats in a particular locus but if we noted down the exact sequence of the nucleotides A, T, G, and C themselves as we find them in that locus. The particular order of nucleotides in a given locus describes a genotype that is shared by other individuals (see also Amorim 2012: 261). If we look at the sequence of nucleotides in all possible loci on a person’s genome, there is – again with the exception of monozygotic twins and multi- ples – such a small chance that the exact order of all nucleotides in all loci between two individuals matches by chance that it is considered practically (and thus forensically) impossible.11

But stating that something is a practically and thus forensically impossibil- ity does not mean, of course, that it is impossible in principle. As Amorim summarises:

[There are] no unique individuals: everyone belongs to a class shared by many others – at least potentially, depending on the frequencies of [the nucleotides] A, T, G, and C. Thus, individuals cannot be distinguished from each other at this level of analysis.

(Amorim 2012: 261) Forensic DNA analysis never establishes a certain link between a marker and a particular individual, but such a link is always probabilistic. This deficit is, for practical purposes, overcome by the use of statistics. This is necessary because in practice, forensic DNA analysis is mainly used exactly for what it technically cannot do: identifying individuals (via the establishment of a link between a marker from the DNA found at a crime scene and an individual).

This is not a trivial point; there are few other instances where the connec- tion between a ‘marker’ and an individual is made by means of statistics and

10 The chance that two people do have the same number of repetitions in the same places – the so-called ‘random match probability’ – increases when the number of repeats in a certain loci are relatively typical in the respective population, or when individuals are biologically related. For example, full siblings share 50 per cent of their DNA on average. This means that on average, half of the genetic information (number of repeats) in the loci that forensic tests analyse will be the same. This phenomenon is utilised in a technique called ‘familial searching’; the method takes profiles that match in many but not all loci as an indicator that the originator of the profile that is searched for is a biological relative of the one whose profile matched in more loci (than would be expected for unrelated indi- viduals). For more detail, see Murphy (2010).

11 It should be noted here that ‘traditional’, STR-based forensic DNA testing does not look at all loci of a person’s genome but only to about 10–15, depending on the particular