Lowering the Drawbridges: Legal & Forensic Science Education for the 21st Century



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Lowering the Drawbridges:

Legal & Forensic Science Education

for the 21st Century.
Carole McCartney,

John Cassella,

& Paul Chin.

With foreword by Prof. Paul Roberts. 2011

Contents

Page

Introduction

Background to the workshop 4

Background to the issues 5

Foreword: ‘Teaching Law to Forensic Science Students and Forensic Science 12

to Law Students – Conceptual Groundwork’ by Professor Paul Roberts



The Survey

Results from law lecturers. 18

Results from forensic science lecturers 20

The Workshop:*

Session One - What legal education do forensic science students need? 21



Session TwoWhat scientific education do law students need? 26

Session Three - How to satisfy these needs?; How to effect change? 35

Preliminary Conclusions

References & Relevant Reading 39

Appendix – The Surveys 44

*A day workshop held at The Rose Bowl, Leeds Metropolitan University, May 27th 2009, organised by the Physical Sciences Centre and UKCLE in conjunction with the University of Leeds and Staffordshire University. The workshop operated under the Chatham House Rule in order to facilitate a frank and open discussion: When a meeting, or part thereof, is held under the Chatham House Rule, participants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed.



Introduction
Background to the Workshop
On May 27th 2009 a workshop was held at Leeds Metropolitan University, attended by over 40 academics and practitioners from scientific and legal backgrounds. This workshop aimed to address issues related to teaching forensic science and law by bringing together these legal and forensic science academics to explore avenues for improving understanding, collaboration and communication between the two disciplines. The workshop was the commencement of a project to facilitate the building of vital connections in the academy to ensure that legal education remains ‘fit for purpose’ in the 21st century. This requires that law educators and science educators ‘lower their drawbridges’ and seek mutually beneficial solutions to common educational problems. This will not only reap benefits for students, but also contribute towards developing the legal/ forensic science professions of the future, and ultimately, will assist the criminal justice system in realising its ideals and objectives.
With preliminary research on current cross-disciplinary teaching in universities undertaken, this one-day workshop addressed themes such as:


  • What legal education do forensic science students need?

  • What scientific education to law students need?

  • How to satisfy these needs and who needs to be involved?

  • Are there problem areas, barriers or omissions that need addressing?

  • Are there potential solutions that can be readily and/or easily implemented?

  • Is there a consensus on ‘best practice’ in this area?

  • Are there issues that require further work and involvement of the wider community?

The format was a series of structured and necessarily short discussions on the issues, led by the organisers. This was intended to encourage maximum participation by all attendees in identifying the options for resolving issues, relevant sources of data and precedents. It was also expected to clearly identify those issues where a consensus has been reached or may be possible between the different perspectives and interests represented at the workshop and, where this is not possible, at least clarify the extent and significance of any disagreement.



Background to the Issues

The institutions of ‘law’ and ‘science’ are often depicted as falling opposing sides of a ‘disciplinary divide’ (Roberts 2012), evoking C.P.Snow’s ‘cultural divide’ between science and the humanities (Snow 1959). Regardless of this wider ‘science and law’ debate (which brevity dictates must be continued elsewhere), there remain apposite and acute concerns regarding the status of science utilised by the law, in particular forensic science and its interplay with criminal law. Research into the causes of wrongful convictions clearly demonstrates that if legal professionals are unable to competently assess and handle scientific evidence, the pursuit of justice can be seriously hampered, potentially leading to factual errors, as well as the misrepresentation and/or misinterpretation of evidence. In England and Wales, many infamous miscarriages of justice:


“had at their heart scientific evidence that was either not disclosed, flawed, or misrepresented in court. The Irish bombing trials used methods of testing for explosives that were invalid, while cases such as that of Kevin Callan1 exemplify grave miscarriages caused by flawed scientific evidence. The successful appeal of Sally Clark2 focused attention again on the non-disclosure by the prosecution of important medical evidence as well as the use of erroneous statistical calculations.” (McCartney 2006:5).

In the US, Garrett & Neufeld (2009) studied 137 trial transcripts where forensic analysts gave testimony in a case where innocent defendants were on trial.3 In 60% (82) of these cases, “forensic analysts called by the prosecution provided invalid testimony at trial – that is, testimony with conclusions misstating empirical data or wholly unsupported by empirical data.” (Garrett & Neufeld 2009:2). They found that defence counsel rarely cross-examined analysts, instructed experts of their own, or challenged invalid forensic testimony.

Expert evidence can be then (mis)communicated to fact finders and decision-makers alike, many of who will struggle with scientific evidence, compounding problems and potentially hindering their appreciation of the reliability, relevance and weight of scientific evidence. The ‘epistemic incompetence’ of the jury (Mnookin 2008) is then extending to counsel, leaving them incapable of gauging the reliability of the scientific evidence adduced: “… there is still widespread scientific illiteracy at the bar.” (Latham 2008:33). Judges have also been similarly strongly criticised: “Science is such a pervasive force in modern society that judges are essentially failing their obligations if they persist in their scientific ignorance.” (Saks & Faigman 2008: 166). Such scientific illiteracy on the part of the legal profession, when coupled with the flaws in forensic science,4 form a toxic combination.5

Furthermore, there is a risk that science can become shrouded in mystery and given a veil of infallibility. Authors have been unable to accurately demarcate the newly labeled ‘CSI effect’ (Gabel 2010), whereby lay people in courtrooms enter with entrenched cultural expectations regarding scientific evidence, garnered from viewing of multifarious popular television crime series (Cole & Dioso-Villa 2007). These are not such novel issues (widespread suspension of critical faculties in the face of ‘science’ existed even before the white coat became symbolic attire for its emissaries), albeit their diagnosis and treatment is rare. However, while:


“problems with forensic science, and mistakes made by experts, are rehearsed in the media on an increasingly regular basis. Normally absent from such criticisms is any examination of why it was that no lawyer was able to spot a potential issue or had drawn attention to errors before damage was done” (McCartney 2008:992).

While it is accepted that ‘bad’ (or ‘junk’ in American parlance) science is being accepted by juries: “there is a latent problem that often falls in the shadow of bad science: bad lawyering.” (Gabel 2010: 236). Perhaps lawyers can no longer escape critical scrutiny of their role, as Gabel (2010:236) highlights:


“While the NAS Report primarily thrashed forensic science and crime labs, it did contain the somewhat hushed admonition that “lawyers and judges often have insufficient training and background in scientific methodology and they often fail to fully comprehend the approaches employed by different forensic science disciplines and the reliability of the forensic science evidence that is offered at trial” (NAS Report 2009:27).”
In order to prevent the criminal justice process being derailed by these potential difficulties with utilising scientific evidence: epistemic incompetence; credulity; and bad lawyering, it is also argued that legal professionals ought to shoulder greater responsibility when adducing expert evidence (Saks 2001; Gershman 2003; Raeder 2007; Moriarty 2007; see Caudill 2003 and 2011 for an alternate view). Saks (2001) calls for lawyers to be subject to disciplinary action if they knowingly rely upon, and adduce invalid expert evidence while Gianelli and McMunigal (20007) argue that there should be an ethical responsibility to not adduce flawed expert evidence.

In many legal jurisdictions, there is already a burden placed upon the judge to act as a ‘gatekeeper’, with criteria set out upon which they must base admissibility decisions. If it were agreed that counsel should assume an enhanced responsibility to do some preliminary ‘reliability’ test of expert evidence they wish to adduce, even before a judge acts as ‘gatekeeper’, it would first require lawyers to understand some basic scientific principles and the ‘scientific method’ as a bare minimum (arguably, as should any educated adult). Yet the so-called ‘scientific illiteracy’ among the general public reaches into the legal community with lawyers ‘naturally intimidated and overwhelmed by scientific evidence’ (Findley 2008:931), or as Latham explains: “Lawyers, though they may be popular science enthusiasts, typically have little exposure to scientific training, and do not know how to read scientific literature critically” (Latham 2008:33).6 This is not surprising when looking at the scientific education (or lack thereof) of law students, most of whom have not studied any scientific discipline post-16 (McCartney 2008).

Most law undergraduates have ‘dropped’ science very early on in their educational career, their focus then often solely on arts and humanities subjects. The traditional law degree then dilates this educational lacuna by failing to introduce law students to basic scientific concepts, or provide grounding in the work of scientists: “Although law school could be described as a glorified liberal arts education, it generally does not include courses in research methods and statistics. Even where such courses are available, they are taken by a small percentage of students” (Saks & Faigman 2008:161). Yet upon qualification, they are expected to understand and manipulate evidence from scientists and experts. This omission in law degrees has increasingly been lamented (see McCartney 2008), “Law students underestimate the amount of science and math required for legal practice even in areas unrelated to forensic evidence issues” (Gabel 2010:258), and yet the disciplines of law and science remain divided not just paradigmatically but often geographically: scientists and lawyers rarely meet on a university campus or find themselves researching co-operatively; they will also not be catered for in the same libraries or literature sources, (or by the same research funding bodies).

Concerns have long been raised in the USA, UK and Australia about deficits in legal education. It is the case that the majority of England and Wales university law students ‘drop’ science early in their in education; 18 per cent of Leeds University first year law students (intake of 2008) have one (rarely more) science A-levels (see McCartney 2008).7 In the US, in the academic year 2007-2008, 4.3% of law school applicants had a natural science degree; 2.7% had engineering, 0.8% computer science and 0.9% had health professional degrees.8 As Gabel (2010:257) explains: “The overwhelming majority of ‘feeder’ degrees for law school are arts and humanities and business administration. Additionally, due to advanced placement courses, some students have not even taken a math or science class since high school.”

Yet if law students are not studying any science beyond mid-high school level, and then can avoid any further science at pre- or post-qualification stages of their education, when are lawyers learning how to handle ‘evidence’ and interpret information – the mainstay of their occupation? If becoming a criminal law practitioner, lawyers may often be required to assess scientific evidence, yet have no educated basis upon which to do this. Such a criticism could also include a basic understanding of statistics, which is also barely introduced, if at all, on a traditional law degree: “math and science are a black hole in legal education” (Gabel 2010:257). Even if considering the law degree a liberal arts degree, and not vocational, there are wider benefits of a ‘broadly conceived’ law degree in tackling scientific illiteracy among the general population.

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