The previous discussion also goes in the direction of doubling concerted efforts on various fronts to improve communication between lawyers and academics and other experts. In addition to improving the reception and use of expert evidence in individual cases, better communication should progressively contribute to the broader policy objective of promoting genuine and deep mutual understanding and respect for the professional roles and responsibilities assumed by prosecutors, defence counsel, trial judges and experts in our criminal justice system. In this context, greater emphasis should be placed on full disclosure in the context of the investigation, clarification of issues (including obvious disagreements of experts) and careful preparation of cases, as now required by the Code of Criminal Procedure. Such measures are not only crucial to promote informed and timely confessions of guilt and to enable more targeted and effective trials. Mutual understanding and respect are also essential to maintaining the integrity of forensics, as practitioners` expectations motivate and influence their professional conduct and operational decision-making, which in turn influences the progress and outcome of criminal investigations, prosecutions and judicial proceedings. The quality of criminal justice, in my view, depends more on these relatively prosaic and largely unannounced educational and cultural factors than on big, headline-grabbing legislative moves – which, when implemented, almost invariably disappoint with their sloppy or uneven implementation. Forensics is fundamentally an applied branch of scientific activity with existential claims of practical and instrumental value. A standard definition of “forensics” is therefore “science applied to the administration of justice” [26,27]. Although forensics is rightly characterized as a true partnership between scientists, on the one hand, and criminal investigators, lawyers and courts, on the other, science is necessarily subordinated to a legally defined understanding of law in the sense of the structural logic of criminal justice. For this reason, criticism (20), which seems superficially to reveal a deep and lasting source of cultural alienation, is far from being as revealing as it appears [28]. While there are undoubtedly significant differences in the way lawyers and academics conduct their day-to-day activities and in their respective professional cultures and ideals, forensic science is indeed in the legal field5 and, according to its own conclusions, can only succeed if it can successfully adapt scientific findings to legal requirements. This basic ranking of priorities is not always fully appreciated or may be temporarily forgotten in the heat of debate.
The first level of misunderstanding concerns the somewhat complex relationship between adversarial criminal proceedings and the search for truth in case law. Lawyers, it is said, play adversarial games and courts deal only with forensic evidence and not with the factual truth of “what really happened” in relation to the disputed facts. Critics fail to acknowledge that the adversarial procedure is intended to promote the search for truth, not to thwart it. Before skeptical readers laugh, I want to emphasize that this is an assertion about the system as a whole and its institutional design, not about the motivation of professional participants in particular cases. Indeed, the self-serving partisanship expected of opposing lawyers in developing their litigation strategies is the driving force behind the search for truth in opposition. Parties have both the presumed knowledge and the strongest motivation to present their best arguments to the investigator and to challenge their opponent`s arguments and evidence through vigorous cross-examination. Adversarial is an incomparably effective way to narrow down questions and get to the heart of factual arguments [51,55]. Criminal proceedings govern not only the production and presentation of evidence, but also its examination and evaluation. It is certainly plausible to argue that evidence that has withstood concerted forensic examination provides a surer epistemic justification for judicial investigations and jury verdicts than evidence that has never been tested in the forensic melting pot. Clearly, this indictment is extraordinarily diverse. While some of these criticisms should be taken more seriously than others (at least in the British context), they are all based on practical experience of inadequacy, miscarriages of justice and miscarriages of justice. Of course, error is only human, but that doesn`t disqualify criticism (5) as stupid.
The ineradicable nature of human error is an argument for robust institutional systems of triangulation, double checking, surveillance and effective management of human risk factors. The fact that some of these criticisms contradict each other is an early indication of the magnitude and recalcitrance of the regulatory challenges that forensic science poses to the administration of criminal justice. It is highly unlikely that a single regulatory solution could solve all or even most of these different problems. Solutions to some problems can simultaneously create or exacerbate other tensions elsewhere in the system. 6 Scientific knowledge differs from other intellectual artifacts of human society in that its content is significant. The goal of science is also to achieve the highest degree of consensus. Ideally, common scientific knowledge should consist of firmly established facts and principles and accepted without doubt by an overwhelming majority of competent and well-informed scientists” [29]. Cutting-edge research tends to be somewhat experimental, and early enthusiasm may need to be curbed in light of other sobering experiments. The methodological references of some forms of forensic expertise have been questioned and exposed as “junk science”.
Other difficulties arise with respect to statistics and probability [84,85].29 Even when experts make statements of conscience, there is no guarantee that lay investigators will decipher the linguistic codes of experts and be able to give scientific evidence the probative value it truly deserves [86]. There have been cases where genuine experts have exceeded the bounds of their legitimate expertise, and there have been isolated allegations of falsified expertise (“quackery”). Sometimes qualified experts disagree on what can put lay investigators in a bind.30 Psychiatric and psychological testimony raises additional problems arising from the difficulties inherent in obtaining reliable information about mental states and conditions, and in applying relevant legal concepts (mens rea) and criminal defenses to prove mental states (not to mention the Some experts are inclined to complete their relations by unacceptable hearsay and to venture into areas of normative assessment which are in fact reserved for the Court of Justice [87]. First, keep in mind that troubleshooting antagonism can only ever be half the story. Assuming that we do not abandon criminal jurisprudence altogether,23 accusarism, despite its many contentious and practical flaws, will remain the permanent default option, unless and as long as a normatively superior and virtually viable alternative institutional arrangement can be established.