Introduction
Ethics in the forensic sciences is complex and challenging, as a result of functioning at the interface of science and law – two major disciplines with differing methods, values and goals. The law needs to obtain definitive answers in order to resolve disputes promptly and attain justice. In contrast, science reaches tentative conclusions subject to change with further evidence. Forensic science applies science to legal issues, but many differences exist between legal ethics and either scientific or professional ethics. There are specific ethical requirements for each scientific discipline with additional ethical requirements whenever scientific skills are applied to legal matters. Frequently, the two ethical requirements supplement each other. Many scientific disciplines facilitate forensic ethics by addressing the ethical aspects of the application of that discipline to legal issues, but not all disciplines do so. Whenever these requirements conflict, ethical dilemmas are created. Although there are many potential ethical problems in forensic science, most problems can be resolved by following Codes of Ethics or standards of good forensic practice.
Forensic Science Ethics and Personal Ethics
Forensic science ethics is the ethics of applying science to the law. Many ethical facets in forensic science are controversial. Some forensic scientists attempt to resolve ethical disputes by making an apparently arbitrary distinction between ‘ethics’ and ‘morals’. However, these terms have been used interchangeably in philosophy for many years. The arbitrary distinction between ‘ethics’ and ‘morals’ enables those forensic scientists to avoid many ethical dilemmas by labeling certain ethical problems as only personal moral issues. Such ethical matters and dilemmas are thereby excluded from scientific and professional ethics discourse and consideration. The more appropriate distinction would be between personal ethics or morals, current professional and scientific ethics and the practitioner’s view of what should be professional and scientific ethical behavior. Most issues can be considered from either a personal or a scientific and professional ethics perspective, even though complex ethical problems may not lead to a consensus.
In the personal sphere, ‘ethics’ or ‘morals’ refers to the concerns forensic scientists have that are based on personal ethical (moral) or religious considerations not derived from their professional and scientific roles. In the professional and scientific spheres, ‘ethics’ is the term traditionally used. ‘Ethics’ in this context refers to fundamental foundational rules or guidelines regulating conduct in scientific and professional disciplines or forensic science organizations. In contrast, rules of conduct or matters of etiquette are less fundamental matters that should be distinguished from ethics.
Organizational Forensic Science Ethics
For various reasons, not all professional and scientific organizations have ethical requirements or methods of enforcing them. When an organization does enforce its ethics, due process procedures are required both ethically and legally, in which accused members have an opportunity to hear the charges against them and present a defense. The advantage of ethics enforcement by a forensic science organization is that knowledgeable peers oversee one another. Otherwise such oversight may be taken over by outsiders, who may be insufficiently familiar with the discipline or profession to be able to be fair and effective.
Ethical requirements ideally should be enforceable. They should address minimally acceptable professional and scientific behavior. Behavior below these standards should result in a finding of an ethical violation with appropriate punitive sanctions. Sanctions can range from warnings and reprimands, to suspension and expulsion from an organization. A limitation on the ability of organizations to enforce ethical standards is that they cannot enforce ethical standards and requirements on nonmembers or on individuals who withdraw from membership. However, some organizations publish the fact that a member resigned from the organization while under an ethics investigation, in disciplines in which licensing boards have authority, licenses could be suspended or revoked.
Although it is essential to meet basic minimal ethical requirements, the attainment of only a minimal threshold of ethical practice does not necessarily indicate good forensic practice. Failure to find an ethical violation is far from meaning that the professional or scientist necessarily is displaying impeccable ethics. Like the ‘not guilty’ adjudication in legal proceedings, it may mean only that there is an insufficient basis to prove that a practitioner has violated forensic science ethics.
Basic Minimal Ethics and Aspirational Ethics
Some organizations distinguish between ethical requirements representing basic minimal requirements, and aspirational standards or standards of good forensic science practice. Although many organizations confuse these two types of ethical standards, a clear distinction is important so that forensic scientists can determine which provisions represent basic minimal standards that must never be violated, and which represent a higher ideal threshold of desirable and exemplary conduct. The aspirational provisions represent desirable standards towards which forensic practitioners should strive. ‘Good’ forensic scientists will do so. In contrast to minimal standards, failure to achieve aspirational standards should not lead to sanctions. Sometimes, there could be an acceptable reason for not meeting the standards of good forensic practice.
An aspirational standard may sometimes be unenforceable because an assessment of the intent of the forensic scientist may be necessary in order to evaluate the behavior. Since intent is subjective, its determination may be difficult, if not impossible, to ascertain. Nonetheless, a good forensic scientist will try to meet the aspirational standard. Alternatively, a standard may be potentially enforceable, but may not be a minimal standard meriting sanction. Instead it might represent more a matter of desirable or good forensic practice.
Poor forensic practice does not necessarily mean unethical practice. Some inadequate forensic evaluations might represent lack of knowledge or failure to keep up to date in a forensic science discipline. The appropriate action in such instances might involve education rather than a punitive sanction. Other inadequate evaluations may result from time pressure and/or overwork that may contribute to overlooking some important aspects of a case. Although an evaluation may be inadequate, the negligence might not be of sufficient gravity to violate a basic minimal ethics requirement.
Codes of Ethics in Forensic Science Practice
Organizations like the American Academy of Forensic Sciences have developed a Code of Ethics and Conduct that the organization enforces. The Ethics Code states that members ‘shall refrain from providing any material misrepresentation of education, training, experience or area of expertise’. It also requires members to ‘refrain from providing any misrepresentation of data upon which an expert opinion or conclusion is based’. Additional provisions are part of the Code of Conduct. They are designed to prevent members from falsely claiming to represent an organization and from engaging in conduct adverse to the best interests and purposes of the organization. Such transgressions of a Code of Conduct may violate the rules of the organization but may not represent violations of fundamental forensic scientific ethics. The Code of Ethics and Conduct also has provisions describing due process procedures.
When enforcing a Code of Ethics, the following questions, as enumerated by Rosner, should be answered:
1. What provision is the member accused of violating?
2. What are the criteria for that provision?
3. What are the relevant data?
4. What is the reasoning by which it is determined that the member has or has not violated the specific provision?
It is important to write ethics provisions clearly in order to prevent ambiguity that could result in an ethics hearing degenerating into a popularity contest. For example, in the absence of clear guidelines, there is a danger that a verdict could primarily become dependent on whether a hearing panel likes an accused individual, whether the accused person’s views on a controversial issue are popular, or whether the accused is part of the ‘in’ group. As a result, the actual seriousness of the ethics offense would become much less relevant, with less effort expended towards determining exactly what happened and for what reason, thus obscuring the stated goal of the hearing.
If there are sections of the Code that potentially are unclear to a reader, clarifying interpretations should be disseminated to the organization’s membership. It is essential for members to have information in advance about the specific types of conduct that are prohibited (minimal standards), with a clear distinction from those that are encouraged (aspirational standards). If there is any potential ambiguity, a way must be found to provide the necessary clarification. One possible means is to print an explanation of the issue in the organization’s newsletter.
Standards for Good Forensic Practice
Aspirational standards are standards of good practice or even excellence. Good forensic practitioners should strive to attain these standards despite the fact that only minimal basic ethical standards are subject to enforcement. The American Academy of Forensic Sciences’ Committee on Good Forensic Practice has developed the following Standards for Good Forensic Practice.
1. Forensic scientists generally should follow the standards of their respective disciplines. They should apply with care any assessment methods, technical skills, scientific and other areas of specialized knowledge, to legal issues and questions. They should always strive to do high quality work.
2. Forensic scientists should strive to keep current and maintain competence in their scientific disciplines. Although competence at minimum should be a goal, forensic scientists should strive for excellence.
3. Forensic scientists should demonstrate honesty and should strive for objectivity, by examining scientific questions from all reasonable perspectives and by actively seeking all relevant obtainable data that could distinguish between plausible alternative possibilities.
4. Forensic scientists should strive to be free from any conflicts of interest. They should possess an independence that would protect their objectivity. Any potential conflicts of interest should be disclosed. Work on relevant cases should be avoided or discontinued if objectivity may be compromised.
5. Forensic scientists should undertake cases and give opinions only in their areas of expertise, attained through education, training and experience.
6. Forensic scientists should attempt to identify, deter and help eliminate unethical behavior by other forensic scientists through methods such as discussion with a colleague, education, and if unsuccessful, by filing an ethics complaint.
7. It is essential to recognize that honest differences of opinion exist and do not imply unethical behavior by either expert. The legal adversary system includes opposing attorneys seeking out experts with favorable opinions. Forensic scientists should not be blamed unfairly for unpopular verdicts, honest differences of opinion, or the vagaries of the legal system.
8. Passions against an opposing disagreeing expert, or personal animosity, should not constitute the basis for an ethics complaint. Ethics complaints must be made in good faith. If based on passion alone, such ethics complaints themselves are inappropriate. 9. Forensic scientists should present their opinions to the trier of fact in concise understandable language, but care must be taken since such efforts can result in oversimplification and loss of some precision. In their efforts to communicate effectively, forensic scientists should strive to be as accurate as possible and avoid distortion. Every reasonable effort should be made to ensure that others (including attorneys) do not distort the forensic scientist’s opinions.
10. Forensic scientists should strive to instill the highest ethical and scientific standards in their students and colleagues through such means as teaching, supervision, setting a good example, publications, and presentations at meetings.
11. Forensic scientists should strive for excellence and the highest degree of integrity. Forensic opinions should not be based on undisciplined bias, personal advantage, or a desire to please an employer or an attorney.
12. When forensic scientists are asked to express opinions on a legal issue, they should make every effort to become familiar with the applicable legal criteria in the pertinent jurisdiction. They should take care to reach only those legal conclusions that result from proper application of the data to that legal issue.
13. Unlike attorneys, forensic scientists are not adversaries. They take an oath in court to tell the whole truth. They should make every effort to uphold that oath.
14. When a forensic scientist accepts any privileged information from an attorney, care should be taken to ensure that all such information is kept confidential and does not reach the opposing side. After accepting such information, forensic scientists should not provide their services to the opposing side unless legally ordered to do so. Forensic scientists should alert attorneys not to make payment or provide privileged information, if they wish to retain the option to be employed by the opposing side.
Ethical Problems in the Forensic Sciences
Some forensic scientists confuse their role with that of an attorney. The attorney’s role is to present the best one-sided case for his/her client, the only exception being not to argue for anything the attorney knows to be untrue. Unlike an expert witness, attorneys take no oath in court. In contrast, forensic scientists take an oath ‘to tell the truth, the whole truth, and nothing but the truth’. If forensic scientists assume the attorney’s total advocacy role and present the best one-sided case for the retaining attorney regardless of the ‘truth’ and the oath taken, the forensic experts may be perceived as ‘hired guns’. They thereby vilify not only their own reputation, but also taint that of the entire field. Many forensic scientists consider the ‘hired gun’ problem the most serious ethical problem in forensic science.
A ‘hired gun’ can establish a track record of testifying for both the plaintiff (prosecution) and defense, depending on the side that hires the expert. An effective ‘hired gun’ can appear impartial and objective by giving one-sided misleading persuasive explanations for whichever side hires him/her for a particular case. ‘Hired guns’ not only always make the best case for the side hiring them, but alternatively they also could do so for a side for which they have a personal bias, regardless of which side they actually believe is right. In contrast, it is possible to have a bias and preferentially work for one side, yet refuse to take on a case unless the forensic scientist honestly believes an opinion is true with the greatest objectivity possible. The distinction between a hired gun and an expert with an idiosyncratic opinion is not always clear-cut without knowing what is in the mind of the expert. Even if experts firmly believe an opinion because of personal bias so that they honestly may be telling what they believe to be true, others frequently might incorrectly view the opinion as a dishonest distortion of the truth. Sometimes, the problem is an insufficient effort by the expert to be objective, or an honest difference of opinion between forensic scientists.
Honest differences of opinion do exist as they do in every science and profession including law, and it is unfair to blame forensic scientists and forensic science for the battle of the ‘experts’. Additionally, once a forensic scientist reaches an honest objective opinion, the pressures of our adversary system encourage experts to advocate for their opinion. It is difficult to remain totally objective when defending an opinion. Subtle pressures can also bias an expert, such as the wish to please an attorney or an employer. An honest expert should make every effort to form opinions based on the evidence even if contrary to the wishes of the hiring person or institution. There are also questions about what it means to tell the truth, the whole truth and nothing but the truth. Does it mean the expert should try to offer the whole truth and not a misleading part of the truth to the degree that the attorneys and the court will permit? Or is it enough to present only that part of the truth that will help the case and rely on good cross-examination (which may not happen especially if the case is settled before trial) to bring out the rest of the truth? Or should some portions of the truth that may lead to conclusions contrary to the expert’s opinion be presented solely as a tactical maneuver to make a preemptive strike so that those aspects can be debunked before the other side has a chance to present them?
Should a forensic scientist try to participate in the legal system only in ways that further justice or should the forensic scientist solely answer the questions asked and trust the adversarial system to usually achieve justice? The adversarial approach exists in those countries like the United States that base their system on English common law. Should forensic scientists lend their expertise to sides trying to achieve an ‘unjust’ outcome? Is it presumptuous for forensic scientists to try to further only what they see as justice or what is consistent with their professional scientific or personal values? Answers to these questions presently lack a consensus and a resolution does not seem likely in the foreseeable future.
Foundations of Ethics
Are ethical guidelines arbitrary rules, or are they based on something more basic and fundamental? Ethical codes address ‘important’ issues, and seem to represent more than codes of conduct or codes of etiquette. Sometimes codes confuse etiquette (such as not criticizing another scientist or professional or not hurting an organization) with fundamental ethical issues. There are questions whether any ethical truth is objectively right or wrong, or whether all ethics is subjective and one code is as good as another. Some, who view ethics as subjective, see it as solely dependent on the mores of a specific culture or scientific discipline. They believe that what is considered ethical is only what feels morally right to individuals in that culture or group.
Some consider that the only foundation for ethics and morals is religion. However, religion itself lacks objectivity not only within the confines of a single religion, but also because there would be no consensus as to which of many different religions should be the standard bearer. Some religions in the past have advocated human sacrifice. Did that make it ‘right’ for them? There is a long tradition of secular ethics independent of religion in western democratic countries. Although religion can be a basis for ethics, many religiously observant people can be unethical and do ‘wrong’ things despite engaging in religious practice. Atheists can be very ethical and committed to philosophical study to determine what is ‘right’. Although religion can undoubtedly motivate many people to do what is ‘right’, by no means is religion a necessary foundation for ethics and morals.
Two primary schools of thought exist regarding the basis for ethics. One is consequentialist and proposes that the ethical thing is whatever leads to the best consequences, such as the most good or happiness for the most people. A subset of this position is utilitarianism, insofar as what is most useful is ethical. Another school is deontological and bases ethics on an intrinsic duty. Actions are intrinsically right or wrong regardless of consequences. An example of the latter is the philosopher Immanuel Kant’s categorical imperative – to do what you believe any ethical person in your position should do, such that the maxim you are following should be a universal principle for all to follow.
There can be problems with following any of these positions too rigidly. You might consider justice an intrinsic deontological duty, much as Kant did. Does that mean though that every crime no matter how small should be investigated until the perpetrator is punished? It takes consequentialist considerations to balance this duty with the desirability of spending government money on other things that might be more important for society’s welfare. Investigating every crime thoroughly until the criminal is caught would use up all our society’s resources. No funds would be left for other desirable purposes. Additionally, if deontological considerations were primary, two deontological duties might conflict without any principle to resolve the conflict.
Similarly, following only consequentialist considerations results in problems. For example, it might decrease crime in society if it were perceived that every criminal was always swiftly caught and punished and no criminal ever got away with a crime. To achieve this end it might help to choose individuals from an unpopular group such as prior offenders, try them in secret, find them guilty, and execute them quickly and publicly. Such a procedure might in fact have some deterrent value and decrease crime especially if it were used for white-collar crimes like embezzling money or income tax fraud. However, deontological considerations of justice convince us that there is something wrong with this procedure. There are even contrary consequentialist considerations. Government would become very powerful, and any of us could be arbitrarily tried, convicted, and executed even if we were innocent. All of us would be at potential risk. Thus, a purely consequentialist foundation for ethics would also provide no way to decide between these competing consequences to determine the right action.
The best approach requires a consideration of both types of ethical foundations, but there is no higher order rule to help us in balancing these considerations. The theoretical approach to resolving ethical dilemmas essentially uses universal ethical principles as ‘axioms’ from which particular ethical judgments are deduced as ‘theorems’. A solution to a problem in a particular case is deduced from the ethical principle. However, there usually is no higher order ethical rule or principle to help us decide among competing ethical principles.
In contrast, the practical approach, known philosophically as ‘casuistry’, does not involve universal theoretical principles and rules but requires us to consider the issues from the perspective of a particular case. General ethical principles and rules essentially are ‘maxims’ that can be fully understood only in terms of paradigmatic cases that define their meaning and force. However, there can be and often are differences of opinion about which facets of a case should be overriding, with no ethical guidance to help us in weighing and balancing competing ethical maxims.
In both instances, deontological and consequential considerations can assist us in determining what is ‘right’. However, when ethical rules and principles conflict, there generally is no rule, principle, or maxim to help us resolve the conflict. Therefore, it is essential that forensic scientists are able and prepared to think through and resolve ethical dilemmas themselves. In difficult situations, more than one solution usually should be considered acceptable, and ethics committees should not place sanctions on forensic scientists for following either course. In order to help reach the ‘best’ solution in such cases, consultation should often be obtained from experienced forensic scientists knowledgeable about ethics issues.
Ethical Dilemmas
Ethical dilemmas often defy consensus solutions. When ethical responsibilities conflict, some forensic scientists always give the legal needs priority. The majority, however, usually give the legal needs priority, but make exceptions if the law desires an action that violates serious aspects of the values and ethics of their own scientific discipline or profession. In such situations, their professional or scientific values, ethics, and responsibilities may outweigh the desires of the legal system, and preclude their involvement in that aspect of a legal case. Personal ethics and morals can also preclude such involvement. Although the legal system can establish legal ethics, only scientific, professional, and forensic science disciplines and organizations can establish forensic science ethics. The law cannot determine what is ethical in forensic science; it only can determine what is legal.
Ethical dilemmas occur when there are conflicting ethical duties. An example of such a conflict occurs in forensic psychiatry, in circumstances in which a practitioner might sometimes believe that the most accurate and truthful assessment would be attained by misleading the person being evaluated. Such deception is often legal, but it violates forensic psychiatric ethics as promulgated by the American Academy of Psychiatry and the Law. Most forensic psychiatrists follow the guideline of the forensic psychiatric profession regardless of the frequent legality of such deception. In another instance, many consider the presentation of aggravating circumstances in a death penalty phase of a trial a violation of medical ethics, even if such aggravating circumstances are true and such testimony in the United States violates no current ethical requirement. The same is true if individuals incompetent to be executed are treated to make them competent. These problems occur when medical or psychological skills are used to evaluate an individual for forensic purposes.
The specter of ethical conflict, however, is by no means limited to forensic psychiatry and psychology or other branches of forensic medicine, but it occurs in all forensic sciences. The use of DNA evidence in the courtroom, although seemingly based on sophisticated modern scientific techniques, with unusually high levels of reliability and certainty, is another example of a highly controversial area. Problems in other aspects such as data collection can be questioned. In many ways it seems counterintuitive that there can be such divergence in professional opinions when accurate data such as DNA evidence are introduced. Nonetheless, controversy does exist about the interpretation of DNA data among highly respected forensic scientists, such as in the widely publicized criminal trial of O.J. Simpson. Does that necessarily mean that one side is unethical or is it possible for honest forensic scientists to hold strong opposing views? One possible explanation is that the highly accurate nature of DNA evidence has made many problems more significant. Potential ethical and data collection problems that had been readily ignored when identification methods were less accurate suddenly have begun to loom in importance. Many such controversies exist in all forensic science disciplines.
Conclusion
Although the ethical course of action is clear in the majority of situations, it is essential for the ‘good’ forensic scientist to be knowledgeable about ethics in order to be able to resolve ethical dilemmas when difficult situations arise. It is essential to know the minimal requirements in a Code of Ethics in order to stay out of trouble and avoid sanctions. However, such Codes do not and cannot address all contingencies since differing requirements as well as aspirational standards may conflict. Generally, there is no higher order rule telling us how to resolve such a conflict. In such instances, sometimes with knowledgeable help, forensic scientists must work out their own ethical solutions. Such dilemmas are likely to occur when different disciplines with differing ethics and values intersect, like science and law, in forensic science practice.
Various organizations address different issues in their codes. Two minimal standards for forensic scientists are the need to be clear and truthful, and not to distort credentials and data. However, the good forensic scientist should strive for more than only staying out of trouble and meeting minimum standards. ‘Good’ forensic scientists should strive for excellence both in their ethics and in their forensic science work.
Ethical complexity in the forensic sciences is not a reason to avoid forensic practice. Forensic scientists should accept the challenge, but should be prepared to confront and assess potential ethical conflicts. Myriad problems beset all disciplines, especially those that interface with two very different disciplines like science and law. Forensic science is an interesting, stimulating, and productive vital occupation, but it is necessary to become informed about as many facets as possible in order to become a good ethical practitioner. In most cases, despite the potential ethical dilemmas that have been enumerated, the forensic science Codes of Ethics provide the required minimal ethics solutions. Those wishing to be good forensic science practitioners who strive for excellence, generally can find guidance in standards of good forensic practice. It is only in relatively rare cases that ethical standards conflict or there are conflicts between provisions in the standards of good forensic practice. In such instances, forensic scientists should be prepared, perhaps with consultation, to perform their own ethical analyses.
