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Complexity and uncertainty within forensic science identity are not limited to an academic perspective, but extend to the scientific identity of forensic science (Giannelli, 2003; Henderson, 2004; Risinger & Saks, 2003). Giannelli (2006:310) argues in this respect that ‘forensic science has not always merited the term science’. Until the last decade of the twentieth century, ‘uniquely’ forensic forms of inquiry such as fingerprinting, tool marks comparisons, firearms identifications, bite mark analyses and handwriting matches have earned the unquestionable acceptance by courts as unique tools of identification (Houck 2006 & Giannelli 2006). Starting in the 1990s, the American Supreme Court’s decision in Daubert v. Merrel Dow Pharmaceuticals

(1993)- followed by many progeny cases such as Kumho Tire v. Carmichael in (1999) and Epstein (2002)- scrutinised many of the ‘uniquely’ forensic science techniques in terms of their reliability, validity, and legitimacy ( Moenssens 1999, Risinger & Saks 2003, Cole 2006, and Giannelli 2006). The Daubert Court established a ‘reliability test for the admissibility of expert testimony within federal courts’ which led to trial courts acting as “gatekeepers” (Giannelli, 2006:311) and being required to deny junk science from access to courtrooms (Jones, 2007). Daubert’s ‘rigorous standards for judging the admissibility of expert testimony’ (Giannelli, 2006:311) are mainly based on:

i. The reliability of the technique itself that is adopted to analyse the evidence in question - that is whether the technique is ‘consistent’ so that the same results are obtained in each instance (Giannelli, 1980:1201).

ii. The validity of the technique- that is whether ‘proposed testimony is supported by appropriate validation’ (Daubert v Merrell Dow Pharmaceuticals 1993 at 590) of the knowledge base underpinning the technique itself (Cole, 2006). The counterpart criterion to Daubert test is the Frye standard (Giannelli, 2006), where

Frye ‘requires that a scientific technique be generally accepted in the relevant scientific community before evidence based on that technique may be admitted in evidence’

109 (Giannelli, 2006: 311). Before the Daubert and Frye standards emerged, many forensic techniques had merited unquestionable judicial acceptance for more than 100 years (Cole, 2006). The science basis of these techniques- whether Daubert or Frye- is now being scrutinized far more closely than ever before (Giannelli, 2006).

Daubert’s standards for expert testimony admissibility have exploded arguments among scholars, practitioners, defence lawyers and prosecutors. The emerging arguments mainly circulate around the scientific basis, reliability and validity of many applied forensic techniques, some of which are addressed in Table- 2d.

Table-2d: Arguments Doubting versus Arguments Defending the Science Nature of Forensic Science Techniques

Arguments Questioning the Reliability and Validity of Forensic Science Techniques

Arguments Defending the Reliability and Validity of Forensic Science Techniques

1. Many forensic science techniques lack scientific foundation, reliability, and validity (Risinger and Saks 2003). The forensic profession lacks a truly scientific culture guided by protocols and backed up by experiments and research (Giannelli, 2003). Such techniques (e.g. hair analysis, fingerprinting, ballistics, etc) had generated “oversold and under-researched claims” (Risenger & Saks 2003: 37) and had earned judicial admissibility and acceptance years before Daubert requirements’ of validity were imposed (Giannelli, 2006).

Daubert scrutiny has urged more research and experimentation to support the reliability and validity of many forensic techniques; however, most of such research is funded and conducted by law enforcement agencies. Therefore, such ‘litigation driven-research’ suffers from biased findings that usually aim to support the science basis of the forensic techniques followed by those agencies (Risenger & Saks 2003: 35).

1. Current forensic science techniques rest on a strong science basis and are validated by genuine and reliable research (Houck 2004 and Dwight 2004). Therefore the questioning of whether forensic science is a true scientific endeavour is illogical and unacceptable (Bratton, 2004).

In defence of research objectivity and validity, Adams Dwight, Director of the FBI Laboratory in Virginia, argued that forensic science research within the laboratories rests on a strong scientific foundation. Such research addresses Daubert admissibility criteria. Dwight emphasised that the fact that such scientific research is funded by the law enforcement community shouldn’t imply that the researchers are biased or that the research results are favoured towards promoting the validity of some forensic science techniques (Dwight, 2004). In defence of Dwight’s position, Max Houck (2004) asserted that forensic science research conducted within the FBI laboratories or funded by them is objective.

111 2. The uniqueness of fingerprinting as an identification tool is doubted.

Fingerprint experts support their arguments on the uniqueness of fingerprints from embryology literature. Hence they haven’t yet proved the accuracy or validity of fingerprinting. Instead, they have defended its reliability and validity by emphasising uniqueness over accuracy because the first is unprovable whereas the second can be measured and scrutinized (Cole, 2006).

Fingerprint evidence rests on foundations that have never been validated because there is no proof that the fingerprints of the world’s population do not match (Henderson, 2004; Cole, 2004 & 2006). The only modern study to address this issue was a study undertaken by the FBI which compared 50,000 fingerprint images to each other and then proved that the probability that any two prints selected at random match is nearly zero (Risenger & Saks 2003). This study suffers from significant errors in the study design and analysis and suffers also from being an unpublished litigation biased research (Kaye, 2003). Moreover, the validity of this study is criticised as 50,000 fingerprint images could have come from as few as 5,000 people and do not necessarily represent all the fingerprint images of world population (Henderson, 2004).

Fingerprint examiners attempt to avoid the probabilistic analysis of their results in a manner similar to DNA profiling, where every DNA profiling

2. The uniqueness of fingerprinting has been asserted by many scientists for more than 100 years (ÖKRös 1965, Wertheim 2002, and Moenssens 2003). Fingerprints are unique because “it’s been well documented in scientific literature that the process of prenatal development causes an infinite variation of individual friction ridge details” (Moenssens 2003:32).

Fingerprints’ uniqueness can be strongly supported by: 1) the variability of the physiological process through which friction ridges are formed that makes such ridges unique; 2) the fact that no match has ever been documented between any 2 fingerprints from 2 different individuals- even those of two identical twins; and 3) the fact that fingerprints remain unchanged during the lifetime of an individual (Moenssens, 1999). The process of comparing latent fingerprints of unknown origin with inked impressions of known origin is ‘an art rather than a science’; however, the ‘underlying premise’ upon which fingerprinting rest is scientific (Moenssens, 1999:1). Wertheim argues that the fundamental principles of the science of fingerprints have been validated through years of medical research (2002).

report is accompanied with a statistical analysis of results’ significance (New Scientists, 2004). Fingerprint examiners have always merited acceptance from courts; therefore, ‘they have nothing to gain and everything to lose from validation studies’ (Cole, 2006: 129).

3. Shoe print identification has been challenged by some scholars to be an unreliable technique which lacks peer reviewed publications and which can be conducted by any untrained individual (Armstrong, 2004).

4. The disciplines of firearms and tool mark identification have been targeted by some scholars on: a) the insufficient evidence that tool manufacture would result in unique individuality, the changeable nature of tool surfaces over time which affects individualisation, lack of statistics and databases, and lack of adequate validation (Griffin & La Magna 2002, Saks & Koehler 2005, and Schwartz 2005).

3. Shoe print identification has been defended by a number of scholars and law enforcement agencies to be a widely adopted forensic practice which requires specialised training and has been the subject of various publications within the forensic literature (Armstrong, 2004).

4. Firearms and tool mark identification rests on a firm validated scientific basis. The changes of tool surface over time- if properly accounted for- do neither invalidate the firearms and tool mark disciplines as a science, nor affect their admissibility in courts (Nichols, 2007).

113 Scepticism about the science nature of a number of forensic science techniques- particularly field techniques- mainly circulate around the weak scientific foundation of these techniques and the lack of unbiased empirical research which prove their validity and reliability (Risinger & Saks 2003; Giannelli, 2003; Cole, 2004 & 2006).

Inman and Rudin defend the science nature of forensic science practice because it meets the four requirements for a practice to be regarded as a science (2001). These requirements are (Inman & Rudin, 2001):

 Scientific Methodology: Forensic science follows the scientific method of hypothesis testing in every investigation. Forensic scientists use either the null hypothesis, or a Bayesian framework to examine hypotheses. For example, one forensic expert may claim that “this bullet came from that gun”. This is called the null hypothesis. If this expert performs testings, and repeatedly fails to disprove the null hypothesis, then s/he accepts the null hypothesis as being true. If the testing does, in fact, disprove the null hypothesis, the expert must reject it and accept the alternate hypothesis: “the bullet was not fired from the gun”. Another expert may use a Bayesian framework, where competing hypotheses are compared and their relative likelihoods are calculated.

 Dynamicity: Forensic science is dynamic because newer and more

discriminating techniques are regularly adopted to distinguish between two items that were previously indistinguishable using older techniques. For example, forensic biology now can distinguish between two individuals with the aid of DNA profiling. Initially, blood typing was not always a reliable and efficient tool in forensic biology for the differentiation between two individuals, especially if those individuals possessed the same blood type, type “A” for instance.

 Durability: Forensic science is durable because new technologies advance existing methods and applications.

 Reproducibility: Forensic science is reproducible as the confirmation of results often takes the form of independent review, either by another analyst in the laboratory or by an expert assisting an opposing counsel.

Inman and Rudin (2001) argue that forensic science, similar to engineering and medicine, is an applied science and enjoys all the characteristics of an applied science except that it lacks an experimental nature. This is because the results obtained from a forensic sample are those of an ‘examination or analysis, not an experiment’. The analyst is ‘gathering facts about a piece of evidence that will later be combined with other facts and assumptions to form a theory of what happened in the case’ (Inman & Rudin; 2001:8).

Despite the arguments whether some forensic science techniques are or are not valid and reliable sciences, almost all scholars do agree on the necessity for more research, funding and publication within the various areas of forensic science (Moenssens, 1999, Risenger & Saks 2003; Houck 2004 & 2006; Giannelli 2003 & 2006).

On the issue of identity uncertainty, Terrence Kiley argues that the identity of science in forensics when dealing with a criminal case is not the same as that when dealing with a civil matter. Kiley defends his argument as follows: 1) civil law and criminal law are two distinct areas in legal practice; 2) In civil cases, forensic science is usually involved in product liability and associated personal injury disputes where science is focused on ‘issues of causation’; 3) In criminal cases, forensics scrutinizes and analyses the ‘physical dynamics’ that created a crime scene by covering a wide range of sciences, applied sciences, and other forms of inquiries in order to ‘generate material facts’, such as DNA identifications and fingerprints matching, that would help identify the offender. Kiley asserts that these types of issues – science of causation

versus science of experimenting and fact generating- have been the ongoing focus of United States Supreme Court decisions, in an attempt to finalize a comprehensive definition of the ‘science’ upon which forensics operates (Kiley, 2006:4).

115 Since its inception, forensic science, according to Inman and Rudin, is probably ‘the least understood and the most misunderstood of all scientific disciplines’ (2001: 22). However, all the addressed debates in this subsection raise questions about the ontological nature of forensic science, an inquiry which this research will undertake at later stages of data analysis.