Chapter 1

The Complexity of Forensic Science in Criminal Investigations: Is there a Gold Standard?

Athaliah Biju, Kate Hambly, Avani Joshi

"The Greatest Enemy of Knowledge is Not Ignorance, it is the Illusion of Knowledge” (Stephen Hawking, 2001)

The evolution of forensic science means that the gold standard in forensic science is always changing. The problem that ensues is that the general public, jury, lawyers and judges are unaware of such evolution and they often misunderstand error rates, or the frequency of errors, in forensic sciences (Innocence Canada, 2021). Media is considered the primary source of information for depicting criminal investigations, and often misinforms the public about the fundamentals of forensic science, thus distorting the perceptions of the general public. This lack of knowledge and awareness leads to misconceptions that cause miscarriages of justice, unfair trials and an over-reliance on forensic evidence in criminal proceedings. The first crime lab in the United States of America was made in 1923, when forensic evidence was first used to aid in criminal investigations (Saferstein, 2018). Through technological advances in science there has been an increase in dependency on forensic evidence (Garrett et al., 2021). The demand for standards and regulations have also increased due to an improved understanding by the forensic community in error rates and potential biases (Garrett et al., 2021). Research indicates that the majority of current court cases introduce forensic science as evidence (Garrett et al., 2021). Due to the fact that the majority of current court cases are publicly available and often dramatized in entertainment media, the public perception of forensic science can be misunderstood further causing the ‘CSI effect’. The ‘CSI effect’ occurs when forensic evidence is embellished in television 7

Are We There Yet? The Golden Standards of Forensic Science shows and various forms of media that causes an unrealistic expectation, such that forensic evidence is needed for every criminal case (Saferstein, 2018). This further indicates the need to understand the impact of the ‘CSI effect’ and media on public perceptions, the consequences for misunderstanding forensic evidence by the jury and the lack of knowledge by legal professionals in forensic science.

The Making a Murderer / Serial Effect

The ‘CSI effect’ is a topic that has been extensively explored in the field of forensic science. There are legitimate concerns over the impact of fictionalized media on the perception of forensic evidence and techniques. It has been found that television shows in the crime genre have resulted in distorted perceptions of criminal investigations, thereby affecting the juries’ behaviour (Hayes & Levett, 2013). The ‘CSI effect’ is based on the cultivation theory, which proposes that “the more one sees certain ideas, images or values, the more they become incorporated on one’s reality” (Vicary & Zaikman, 2017, p. 52). The first installment of the CSI franchise, CSI: Crime Scene Investigation, completed its 15-season run on September 27, 2015, with 12.2 million viewers tuning in for the series finale (Collins, 2015). Just four months later, the true-crime world catapulted to mainstream popularity in the form of Netflix’s Making a Murderer. The case of Steven Avery, depicted in Making a Murderer, saw a renewed interest in true-crime and highlighted the misuse of forensic evidence. Rather than an “old-style crime coverage”, viewers are presented with an in-depth exploration of the Steven Avery case with the intention of exposing the flaws of the criminal justice system such as the tunnel-vision exhibited by law enforcement (Banks-Anderson, 2016; Golob, 2018). Old-style crime coverage would include shows like Forensic Files, Dateline and 20/20, which focus on a new case every week. Jeremy Gans, a law professor at the University of Melbourne, “believes that the monopoly that courts have on information is being lost due to the transformative effect of new media” (Banks-Anderson, 2016). True crime’s resurgence cannot be fully attributed to Making a Murderer. In 2014, the 1999 murder of Hae Min Lee was covered by the podcast Serial, captivating millions of people and has since been cited as the most popular podcast of all time (Gross, 2014; Sherrill, 2020). The show follows the arrest, conviction and sentencing of Lee’s ex-boyfriend, Adnan Syed. The show’s host and creator,

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The Complexity of Forensic Science: Is There a Gold Standard?

Sarah Koenig, conducted her own investigation and raised doubts regarding the handling of Syed’s case. Koenig stated that her intention with Serial was to “report, not exonerate” (Gross, 2014). Mainstream coverage of this case, however, has been sympathetic towards Syed. There is no doubt that Serial sparked a widespread debate “about whether or not the state had met the burden of proof for a conviction” (Krieger, 2019). While certain points were raised in the podcast that warranted a retrial, it was not enough to prove his innocence and his conviction was restored (Fenton & Prudente, 2019). The HBO documentary series The Case Against Adnan Syed promised new DNA test results that could help Syed’s case but ultimately it was not enough to exonerate him (Considine, 2019; Romano, 2019).

The Impact of True Crime Media on the Criminal Justice System

True crime podcasts have been described as a mix of journalism and entertainment (Boling, 2019). Streaming services and the binge-era are also huge reasons for the explosion in popularity of the genre. Netflix’s formula of releasing all the episodes at once as opposed to a weekly release has been integral to its success. This is attributed to the human nature of craving instant gratification (Statarosa & Izydorczyk, 2020). Original series such as Tiger King, The Staircase, Don’t F*ck with Cats: Hunting an Internet Killer, Night Stalker, The Trials of Gabriel Fernandez, The Disappearance of Madeleine McCann and Murder to Mercy: The Cyntoia Brown Story are all examples of shows that generated social media buzz. The popularity of these shows can be attributed to the binging culture as well as the desire to fix a broken criminal justice system (Chan, 2020). Since podcasts and documentaries usually tend to have an agenda, viewers often do not have their own objective opinions about the case (Golob, 2018). In the case of Making a Murderer, even the title insinuates that the documentary is about an individual who is framed by law enforcement for a murder. The same can be seen with Serial and The Case Against Adnan Syed. Raising public awareness can often work in favour of the incarcerated. For example, after the release of Making a Murderer, Brendan Dassey’s conviction was overturned based on points raised in the documentary (Dassey v. Dittmann, 2016). Boling (2019) also points out that new media has made other positive impacts, such as an uptick in donations for organizations like the Innocence Project, outpouring support for defendants at courthouses, and the willingness from podcast listeners and docuseries viewers to

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Are We There Yet? The Golden Standards of Forensic Science contribute to investigations of the cases covered. This increase in awareness, however, can also affect the right to a fair trial, especially in cold cases and wrongful convictions. Their popularity can make it difficult to find objective jurors who have no prior knowledge about the case. As Bruzzi (2016, p. 280) points out, “the [true crime] genre raises significant issues about the representation of the law in the digital era, perceptions of justice, narrative and evidence, the increased ‘jurification’ of audiences and the instability of truth”.

The Rise of Internet Sleuthing

The new format of true crime documentaries often entices people to research cases themselves. Internet sleuthing can be explained as “crowdsourcing for justice where justice-seeking civilians collectively pool their expertise in response to real and perceived societal wrongs” (Yardley, 2016, p. 3). One of the most popular social media platforms for discussion is Reddit, which houses various “subreddits”. Subreddits are forums dedicated to facilitating discussions on a certain topic of interest. As aforementioned, there is no longer an information barrier for people who are interested in seeking out primary sources pertaining to a case they are invested in. Serial, for example, went so far as to uploading documents such as police reports, interrogation transcripts, court transcripts and photographs on their website (Serial, 2014). The armchair detectives featured in Don’t F*ck with Cats followed suit, successfully using the tools at their disposal such as Facebook groups and YouTube, to determine the identity of the “cat killer”. As public interest in high-profile criminal cases continues to grow, the trauma experienced by the families of the victims is often ignored. Those close to the victim are forced to relive the trauma of losing their loved ones through constant exposure. Hae Min Lee’s brother, Young Lee, made a post (brother_of_hae, 2014) on the subreddit for Serial to address the renewed interest in his sister’s murder, writing:

TO ME ITS [sic] REAL LIFE. To you listeners, its [sic] another murder mystery, crime drama, another episode of CSI. You weren't there to see your mom crying every night, having a heartattck [sic] when she got the new [sic] that the body was found, and going to court almost everyday for a year seeing your mom weeping,crying [sic] and

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The Complexity of Forensic Science: Is There a Gold Standard?

fainting. You don't know what we went through. Especially to those who are demanding our family response and having a meetup... you guys are disgusting. SHame [sic] on you. I pray that you don't have to go through what we went through and have your story blasted to 5mil [sic] listeners.

Young Lee’s post demonstrates the profound impact that rehashing Hae’s murder has had on their family. Both Serial and Making a Murderer were made to expose the flaws of the justice system. Documentaries like Crime Scene: The Vanishing at the Hotel Cecil, on the other hand, seemingly had the goal to raise awareness on the issue of sensationalism and outrageous narratives. Crime Scene follows the mysterious death of 21-year-old Elisa Lam. A video showing her last moments in the elevator of the hotel went viral online in February of 2013 (Hartmann, 2021). Internet sleuths all around the world immediately scrutinized and analyzed every single frame of this video. It formed the basis of arguably one of the most viral missing persons’ cases. The documentary explores the consequences of internet sleuthing and the cost of spreading conspiracy theories. For example, the sleuths suspected Pablo Vergara aka “Morbid” to be Lam’s murderer after unearthing a video he made during his stay at the Hotel Cecil the year prior to Lam’s death along with his “dark” music videos and lyrics (Hartmann, 2021). Vergara reported that he received death threats, despite having an alibi (Hartmann, 2021). This shows how far the internet sleuths were willing to go to solve a case.

The ‘CSI Effect’ on Juries

The ‘CSI effect’ has recently become an issue within the court system. The Vice President of the National District Attorney Association mentioned that “jurors now expect us to have DNA tests for just about every case, the most advanced technology, and they expect it to look like how it is on television” (Hayes & Levett, 2012, p. 218). In today’s society, the jury expects the forensic science aspect of criminal cases to be the determining factor for the verdict of a case. The ‘CSI effect’ can be described in many ways, and it can appear in many forms such as television shows and news broadcasting platforms. Essentially, the ‘CSI effect’ shapes the jurors into believing that it is appropriate to convict

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Are We There Yet? The Golden Standards of Forensic Science someone because procedures and techniques they observed from fictional television shows were not applied in the case (Clements, 2015). This is especially observed in cases involving DNA evidence because forensic-related television shows portray DNA evidence as infallible. The weight of forensic evidence in criminal cases is now being emphasized by unrealistic projections in the media (Baskin & Sommers, 2010).

The ‘CSI Effect’ on Juries: A Case Analysis

A study mentioned by Alldredge (2015) presents how much the ‘CSI effect’ correlates with forensic television shows and the decisions for convictions in criminal cases. The study selects previous jury members as the participants and focuses on each of the participant’s television viewing habits of forensic-related and non-forensic-related television shows. Each participant was given a written scenario of a criminal case with varying levels of forensic evidence and was asked to decide whether to convict the accused as guilty or not guilty. The results concluded that participants who watched less television had a higher likelihood of convicting the accused with low amounts of forensic evidence (Alldredge, 2015). The results further conclude that those who watched forensic science-related shows were not confident in deciding to convict if there was little or no forensic evidence (Alldredge, 2015). Ultimately, this study showed that jury members are more likely to base their decision on the amount of forensic evidence presented.

The Disadvantages of the ‘CSI Effect’ in Juries

The ‘CSI effect’ has a detrimental impact on the way a jury may decide their verdict in a criminal case. This influence can include multiple forms of media like television shows such as the Law-and-Order series and high-profile cases such as the O.J Simpson case (Lieberman et al., 2008). Digital news platforms broadcast the recent advancements in forensic technology, which can make an impact on the way jury members understand and consider cases based on the new technological developments. As much as the jury members denies the reliability of forensic evidence due to the ‘CSI effect’, the criminal court in the United States and Canada, has set an

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The Complexity of Forensic Science: Is There a Gold Standard? admissibility test for forensic evidence that they uphold for every case. For example, the Daubert and Mohan precedents set out a list of requirements that need to be fulfilled for the admissibility of evidence into the court (Lieberman et al., 2008). In criminal cases, the forensic evidence is not necessarily the issue that the jury factors into their decision. Rather, it is the way that the jury members perceive the evidence that affects the overall verdict in a case. As such, the juries’ perception of forensic evidence is tainted by the ‘CSI effect’ despite the courts strict admissibility criteria in place related to forensic evidence. The ‘CSI effect’ has influenced how forensic evidence can be perceived in the courtroom due to the way the jury understands the relevance of the evidence, in their own opinion. Due to the popularity of forensic-related television shows and how frequently they are broadcasted, the general public has a distorted understanding of how forensic science works in criminal cases (Baskin & Sommer, 2010). It is known that shows like CSI: Crime Scene Investigation and Law-and- Order are on every night, in the majority of households in North America (Baskin & Sommer, 2010). With the addition of social media and public news platforms, high-profile cases and local cases in Ontario, such as Renee Sweeney have also helped shape the way jurors think about forensic evidence. So, the ‘CSI effect’ is present in criminal cases, and it affects the jury’s perception of forensic evidence as it is valued highly, and is therefore highly incriminating, in any criminal case.

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Are We There Yet? The Golden Standards of Forensic Science

THE CASE OF RENEE SWEENEY

Figure 1.1: Renee Sweeney (Photo by Pickard, 2020).

Renee Sweeney was a 23-year-old university student in Sudbury, who was stabbed to death while at work on July 27, 1998. Her attacker stabbed her multiple times. The investigators on her case commented that “Renee fought her murderer and managed to scratch her attacker - they found DNA under her fingernails...and a jacket he discarded after the murder which contained DNA and white cotton gloves” (Pickard, 2020).

The police arrested John Fetterly based on the DNA they obtained from the crime scene. However, it was a mistake. About 20 years later, the police still did not identify Renee’s killer even with the preserved DNA evidence. In 2017, after retesting the DNA using a new technological device called Snapshot DNA Phenotyping Service to “predict appearance and ancestry from information learned from DNA samples, a new image of the suspect was released, new tips, eliminating 200 persons of interest as a result” (Pickard, 2020). A couple of months later, Robert Steven Wright was in police custody. The judge was concerned about the jury being biased as the case was in the media every year that they did not find her murderer. Similarly, the defence was concerned that the jury would have tunnel vision and convict Wright due to the duration of this case and DNA evidence (White, 2020).

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The Complexity of Forensic Science: Is There a Gold Standard?

The Jury Perception in the Renee Sweeney Case

The jury in the Renee Sweeney case was influenced by the ‘CSI effect’, as the jurors held high expectations for the forensic evidence and expert witnesses. This case was highly publicized due to its length and the fact that the police never found the suspect due to the lack of forensic technological advancements at the time of this case, despite having DNA evidence. This affected the way the case continued because between media coverage and theories released over the past 20 years, it was difficult to obtain an impartial jury (Pickard, 2020). The media influence surrounding this case became increasingly problematic that the defence counsel had to make a statement regarding the circumstances of the murder as the media influence could have tainted the potential jurors (White, 2020). The way a case can be publicized by the media can affect the jury significantly due to the way the media frames the facts of the case in their own opinion. Jurors are more likely to question the facts of the case, the forensic evidence and the circumstances of the case when there have been many media opinions and fictional forensic-related television shows broadcasted (Clements, 2015). The jury perception in this case, was also distorted by the ‘CSI effect’ on DNA evidence. The justice who was appointed to this case factored in the amount of media coverage but also the rise of the ‘CSI effect’ regarding DNA evidence since the year the murder took place. The jury selected for this case believed that DNA evidence was the gold standard which resulted in a guilty verdict (White, 2020). Due to the DNA evidence in this case and the amount of time it took for the suspect to be caught, the jury believed that this was enough to decide despite other facts in the case (Pickard, 2020). The ‘CSI effect’ has created the perception that DNA evidence is the gold standard of evidence that can be used in any case. To this point, the justice appointed for the Sweeney case mentioned that “it's wrong to assume the DNA evidence proves all, especially in a case in which the DNA used to compare to that of Mr. Wright was seized 20 years before Mr. Wright was charged” (White, 2020). Ultimately, the jury maintains the perception of forensic evidence to always be the deciding factor in criminal cases. This has become a problem in the court system due to the increase in media platforms and high expectations of forensic science evidence.

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Are We There Yet? The Golden Standards of Forensic Science

Evolution of Forensic Science in Criminal Proceedings

Forensic science is understood as the impartial component of criminal proceedings that are otherwise charged with emotions and the failings of human recollection (Kafadar, 2019). Despite this view, the proposed gold standard for forensic evidence has constantly evolved, indicating that the interpretation of forensic evidence can be subjective to the analyst (Adam, 2016). This further substantiates that forensic evidence should act as a support for criminal cases as opposed to being considered the objective and deciding factor of guilt or innocence. The evolution of forensic sciences has created multiple standards and regulations to guide scientists, legal professionals, juries and expert witnesses to ensure a fair justice system. The existing issue in the legal field today is understanding when prosecutors and defense attorneys overtly rely on forensic evidence as opposed to using it as a tool to support their case. The lack of education on the evolution of forensic science in the legal community along with the extensive use of media platforms explains why this issue persists today. Currently, expert witnesses are instructed to stay away from terms such as “match” and “consistent with” (National Research Council, 2009). Despite this, when DNA evidence was first introduced, expert witnesses proudly used such terms in court (Adam, 2016). Similarly, prior to DNA evidence, fingerprint evidence was seen as the gold standard in criminal investigations, a practice which has now been questioned due to its subjectivity (Adam, 2016). It is imperative to understand that the limitations of science are regularly evolving as scientists continue to push the boundaries of their work (Robertson, 2012), thus, demonstrating a need for continuous public education and awareness of such evolution. This is essential because when legal professionals, the jury, and the public lack knowledge and awareness of such limitations heinous miscarriages of justice and unfair trials are imminent.

Evolution of Forensic Science in Criminal Proceedings: A Case Analysis

The highly publicized case of Ted Bundy relied primarily on bitemark analysis which was credited as a reliable science during the 1980s. Since then, bitemark analysis has been considered an unreliable and highly subjective science (President’s Council of Advisors on Science and Technology, 2016; National Research Council, 2009). Similarly, DNA evidence has been successfully used for

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The Complexity of Forensic Science: Is There a Gold Standard? years to convict and exonerate individuals. As previously mentioned, the public, juries and legal professionals consider DNA as the gold standard in forensic science (Stabile, 2019). DNA has earned its reputation as the gold standard over the years since it accounts for 358 of 2,236 exonerations in the United States (Stabile, 2019), thus, explaining why 90% of the general population believes DNA is the most convincing evidence of guilt or innocence in criminal proceedings (Stabile, 2019). As a result of this unwavering belief, innocent people are wrongfully convicted. Similar to the previously discussed Renee Sweeney case, Lukis Anderson had DNA evidence used against him for the murder of Raveesh Kumar in 2012 (Chinn, 2013). Anderson was a homeless man who lived in California. His DNA, which was in the police’s DNA database due to a previous felony, ultimately was consistent with DNA found under Kumar’s fingernails (Chinn, 2013). Anderson had a drinking problem and told his lawyer that he did not know if he committed the murder (Chinn, 2013). The prosecution thought it was an open and shut case in light of the DNA evidence and his history with alcohol (Chinn, 2013). Nevertheless, his lawyer gathered medical records and found that he was admitted in the hospital at the time of the murder thus providing a strong alibi (Chinn, 2013). The DNA evidence was transferred because Kumar and Anderson were in the same paramedic vehicle just hours apart (Chinn, 2013). It is important to note that without the alibi, Anderson could have been wrongfully convicted due to the highly valued DNA evidence (Chinn, 2013). Both the Renee Sweeney and Lukis Anderson cases highlight the potential for errors in DNA evidence despite its ‘gold standard’ status and emphasizes that legal professionals should use forensic evidence as a support instead of as the determining factor in a case.

Legal Perception of Forensic Evidence

Historically, forensic scientists argued that their respective fields are 100% reliable and adamantly denied that there were any errors in their field (Murrie et al., 2019). Since then, the President’s Council of Advisors on Science and Technology (PCAST) report (2016) and the National Academy of Sciences (NAS) report (2009) have noted that such statements of 100% certainty cannot be scientifically proven. The NAS report further scrutinized 14 forensic disciplines including biological evidence (National Research Council, 2009). For example, research indicates that forensic science testing errors partially causes false guilty verdicts in 63% of DNA

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Are We There Yet? The Golden Standards of Forensic Science exoneration cases (Murrie et al., 2019). In light of such statistics, the well-known Daubert admissibility test, the Mohan test, and the Science Manual for Canadian Judges by the National Judicial Institute are just some examples of guidelines that were created to prevent miscarriages of justice. To further educate forensic scientists and the public, a myriad of reports have highlighted the errors in forensic sciences including the PCAST report and the NAS report (Bell et al., 2017). As the understanding of the reliability of forensic evidence increased, forensic scientists became progressively aware of potential errors in their field (Murrie et al., 2019). Forensic scientists estimate that false positive errors in forensic biology occur at a rate of 1 in 10,000 and false negative errors occur at a rate of 1 in 100 (Murrie et al., 2019). Conversely, judges estimate that DNA evidence has an error rate of 1 in 1,000,000 (Garett et al., 2021). Evidently, judges underestimate the potential error in DNA evidence due to its gold standard status. As previously emphasized, such misunderstandings of the reliability and validity of forensic science create misconceptions in the courtroom and among members of the public. The Science Manual for Canadian Judges states that judges should always instruct the jury on the fallibility and validity of the presented forensic evidence in court (Chalifour et al., 2013). Such guidelines are important to ensure a fair trial, however, the aforementioned research emphasizes the disconnect between judges and forensic scientists on the perceived error rates of forensic evidence. This questions whether judges are able to aptly instruct the jury on the fallibility and validity of the presented forensic science. The appeal of R. v. Truscott (1976) accentuates the misinformation of error rates in criminal proceedings. The appeal judges in the R. v. Truscott (1976) case stated that there was an absence of definitive evidence akin to DNA. The judge’s use of the word “definitive” when describing DNA evidence underscores the problem that legal professionals do not understand the potential errors of forensic evidence and continue to underestimate these errors (Garrett et al., 2021; Robertson, 2012). While judges fail to understand the error rates in forensic science, jurors also neglect in understanding the weight of forensic evidence (Kaplan et al., 2020). Kaplan and colleagues (2020) found that 30% of respondents assumed forensic evidence is of such importance that the absence of it is sufficient for a prosecutor to drop the case. The study further found that 40% of respondents claimed that the presence of forensic evidence is enough to convict an individual despite evidence

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The Complexity of Forensic Science: Is There a Gold Standard? that may suggest that the defendant is innocent (Kaplan et al., 2020). Jurors acknowledge the error rates of forensic evidence yet continue to weigh it as increasingly important as opposed to taking an objective approach to the evidence.

The Illusion of Knowledge

Legal professionals spend thousands of dollars on their schooling to become a certified lawyer. The average law school in Canada costs $12,388 per year for the common three-year JD program (Statistics Canada, 2021). Therefore, the North American legal system requires lawyers and judges to engage in rigorous training and education to become certified to practice law (Garrett et al., 2021). Harvard Law School is considered one of the most prestigious law schools in North America with 538 different courses offered to their students (Harvard Law School, 2021). Despite such a variety of courses, there are no classes that discuss the evolution of different fields in forensic science or the potential biases in forensic science (Harvard Law School, 2021). Legal professionals are extensively taught about the fundamentals of jurisprudence, however, the legal education system fails to teach them about the fundamentals of forensic science (Garrett et al., 2021). This leads to a disconnect between forensic scientists and legal professionals resulting in miscarriages of justices and an over-reliance on forensic evidence in criminal proceedings (Julian & Kelty, 2015; R. v. Truscott, 1976; State v. Avery, 1997; State v. Bundy, 1984).

Recommendations

With the science and terminology used in forensic science, it can become confusing and unclear for jury members, legal professionals, and the public to fully understand a scientific case. It is important to rely on the actors in the courtroom to help the jury and public understand the forensic evidence. There have been some recommendations that have been studied and proved to help the jury understand forensic evidence better and to make more informed, accurate verdicts. Studies have indicated that promoting awareness and education on the potential biases and error rates helps legal professionals make sound arguments for their case without an overreliance on forensic evidence.

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A proposed solution to reduce the misunderstanding of the value of forensic evidence is studied by Hewson and Goodman-Delahunty (2008), the study found that juries who were able to visually see the evidence sample could understand why it was admitted in a criminal case better than if the expert witness or lawyer were to verbally speak about the evidence or read the evidence. It was concluded that with visual content to explain forensic evidence “increased comprehension regarding forensic evidence when compared to traditional jury instructions” (Alldredge, 2015, p.121). Another solution that could help with identifying the jurors who display the ‘CSI effect’ was researched to help the courtroom actors with jury selection. A technique created by Smith and Bull (2012), was to use a scale that determined the amount of forensic science bias or if certain potential jury members were pro-defence or pro-prosecution. This research was proved by using a mock jury that the scale helped the courtroom actors during jury selection and established how to approach the case when presenting forensic evidence. Another proposed solution would be for other courtroom actors to use language and explain terminology as if the jury members did not know scientific terms or concepts. In the research conducted by Dysart (2012), courtroom actors were being asked to simplify the language and explain the terminology they plan on using as the jury is selected from different knowledge backgrounds. Lawyers are asked to avoid the saying “beyond a reasonable doubt.” Rather, it is suggested to use “beyond any doubt” (Dysart, 2012). Expert witnesses are asked to avoid using the word “match” due to the possibility of false positives and negatives (Dysart, 2012). This recommendation can help juries understand complex terminology to reduce the chance of confusion that may lead to a misinformed verdict. A study by Garrett and colleagues (2021) emphasizes that the current training in place for legal professionals including seminars and events hosted by the National Justice Institute and other organizations are inadequate. The lack of knowledge in forensic science makes room for injustices to occur because both the prosecution and defence are required to fight their case to the best of their ability (Julian & Kelty, 2015). Judges with more extensive training in forensic science have been shown to embrace a gatekeeper role and to critically evaluate forensic evidence in courts (Garrett et al., 2021), therefore evidencing that prosecutors, defence attorneys and judges would benefit from more knowledge in forensic science. To bridge this gap, Garrett and Colleagues (2021) proposed the

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The Complexity of Forensic Science: Is There a Gold Standard? incorporation of the basics of forensic science into law schools thus allowing law students to obtain knowledge on potential biases and errors. As aforementioned, it is apparent that the prestigious Harvard Law School fails to incorporate such courses into their curriculum. This knowledge will aid legal professionals to make sound arguments for their cases and adequately instructing the jury and public on the fallibility and reliability of forensic science.

So, Is There a Gold Standard?

There is a need for awareness and education on the fundamentals of forensic science and there are potential biases and errors that may arise when testing. In answering the question as to whether there is a ‘gold standard’ in forensic science, it has been determined that there is no field of forensic science that can provide 100% certainty and objectivity in criminal proceedings (Murrie et al., 2019). As a result, the evidence proves that the field of forensic science has advanced to account for the increasing comprehension of the potential errors in various forensic fields (National Research Council, 2009; President’s Council of Advisors on Science and Technology, 2016). Despite such evolution, there continues to be misconceptions that are held by the public, the jury, and legal professionals, all of which contribute to miscarriages of justice, unfair trials and over-reliance on forensic evidence in the courtroom. To bridge this gap there is a need for more education and awareness in the legal education system to ensure juror comprehension as well as further education in mainstream media to elicit reasonable public expectations for forensic science. As a solution to this lack of education, the authors of this chapter propose a digital solution that is described in the lightbox on the next page.

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Are We There Yet? The Golden Standards of Forensic Science

OUR PROPOSED SOLUTION

As undergraduate students taking FSC430 at the University of Toronto Mississauga, we propose a solution to prevent misconceptions of forensic science by the public, the jury, and legal professionals. This digital solution has not been created nor has its efficiency or effectiveness been studied. As noted in this chapter, there is a lack of education on the error rates and potential biases in forensic science. The ‘CSI effect’ contributes to such biases because it creates an illusion of knowledge. While researchers have proposed that law schools should implement forensic science courses in the legal education, we propose a digital solution. The proposed digital solution will provide more immediate and comprehensive access to information about any field of forensic science. Educating law students on the fundamentals of forensic science is important, however, the constant evolution of forensic science and the law creates a need for information that can be easily updated. Our proposed digital solution includes an online platform that will allow legal professionals, jury members and members of the public to gain knowledge on any field of forensics. The information included will be the potential error rates, cases where there have been wrongful convictions due to errors in testing and cases where it was successfully implemented, as well as the basics of the science and the history of the science. The information will be continuously updated to ensure that the latest scientific advances in the field are accounted for. The authors of this chapter envision this digital solution to be an app or website that is available to the public in which information regarding each field of forensic science is included, and the information is easily accessible.

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The Complexity of Forensic Science: Is There a Gold Standard?

References

Adam, C. (2016). Forensic evidence in court: Bruzzi, S. (2016). Making a genre: The case of Evaluation and scientific opinion. Wiley. the contemporary true crime documentary. https://doi.org/10.1002/9781119054443 Law and Humanities, 10(2),249-280 https://doi.org/10.1080/17521483.2016.1233 Alldredge, J. (2015). The “CSI Effect” and its 741 potential impact on juror’s Decisions. Research Journal of Justice, 3(1), 114- Chalifour, N., Findlay. S. & McLeod-Kilmurray 126.https://scholarworks.sjsu.edu/themis/vol3 (2013). Science manual for Canadian judges. /iss1/6 National Judicial Institute. https://www.nji- inm.ca/index.cfm/publications/science- Banks-Anderson, L. (2016, March 16). The manual-for-canadian-judges/?langSwitch=en ‘Making a Murderer’ effect. Pursuit. Retrieved February 14, 2021, from Chan, M. (2020, April 24). 'Real People Keep https://pursuit.unimelb.edu.au/articles/editing Getting Re-traumatized.' The human cost of -the-making-a-murderer-effect our true crime obsession. Time. Retrieved March 7, 2021, from Baskin, D. R., & Sommers, I. B. (2010). Crime- https://time.com/5825475/true-crime-victim- show-viewing habits and public attitude families/ toward forensic evidence: The “CSI Effect” revisited. The Justice System Journal, 31(1), Chinn, J. (2013). How an innocent man’s DNA 97-113. https://www.jstor.org/stable/27977480 was found at a crime scene. California Innocence Project. Bell, S., Sah, S., Albright, T. D., James Gates, S., https://californiainnocenceproject.org/2013/0 Bonner Denton, M., & Casadevall, A. (2018). 6/how-an-innocent-mans-dna- was-found-at- A call for more science in forensic science. In a-crime-scene/ Proceedings of the National Academy of Sciences of the United States of America, Clements, P. (2015, November 24). The “CSI” 115(18), 4541-4544. effect: The impact of ‘television educated’ https://doi.org/10.1073/pnas.1712161115 Jurors. DrexelNow. https://drexel.edu/now/archive/2015/Novemb Boling, K. S. (2019). True crime podcasting: er/CSI_Effect/ Journalism, justice or entertainment? Radio Journal: International Studies in Broadcast Collins, S. (2015, September 28). ’CSI’s & Audio Media, 17(2), 161–178. “Immortality” finale draws highest ratings in https://doi.org/10.1386/rjao_00003_1 nearly 4 years. Los Angeles Times. https://www.latimes.com/entertainment/tv/sh brother_of_hae. (2014). I am Hae’s brother – Do owtracker/la-et-st-csi-finale- immortality- not AMA [Online forum post]. Reddit. ratings-nielsen-20150928-story.html Retrieved March 4, 2021, from https://www.reddit.com/r/serialpodcast/com Considine, A. (2019, March 31). ‘The Case ments/2mmldf/i_am_haes_ Against Adnan Syed’: finale reveals new brother_do_not_ama/ DNA test results. The New York Times.

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Are We There Yet? The Golden Standards of Forensic Science

https://www.nytimes.com/2019/03/31/arts/tel 2021, from evision/case-against-adnan-syed-dna-hbo- https://scholarlycommons.law.cwsl.edu/cwlr/ finale.html vol54/iss1/5

Committee on Identifying the Needs of the Hartmann, G. (2021, February 12). Morbid: The Forensic Sciences Community, National metal musician falsely blamed for Elisa Research Council. (2009). In Strengthening Lam’s death. Loudwire. Retrieved March 17, Forensic Science in the United States: A Path 2021, from https://loudwire.com/morbid- Forward. https://doi.org/10.17226/12589 metal-musician-falsely-blamed-elisa-lam- death/ Dassey v. Dittman. 201 F.Supp.3d 963 (2016). https://casetext.com/case/dassey-v-dittmann- Harvard Law School. (2021). Harvard Law 7 School Course Catalog 2020-2021. https://hls.harvard.edu/academics/curriculum/ Dysart, K. L. (2012, May 12). Managing the CSI catalog/index.html effect in jurors. American Bar Association. https://apps.americanbar.org/litigation/commi Hayes, R. M. and Levett, L. M. (2013). ttees/trialevidence/articles/winterspring2012- Community member perception of the CSI 0512-csi-effect-jurors.html effect. American Journal of Criminal Justice, 36, 216-235. https://doi.org/10.1007/s12103- Fenton, J., and T. Prudente. (2019, March 8). 012-9166-2 Adnan Syed case: Maryland high court reinstates “Serial” subject’s conviction. The Hewson, L. & Goodman-Delahunty, J. (2008). Baltimore Sun. Using multimedia to support jury https://www.baltimoresun.com/news/crime/b understanding of DNA profiling evidence. s-md-ci-syed-appeal-20190222- story.html Australian Journal of Forensic Sciences, 40(1), 55-64. Garrett, B. L., Gardner, B. O., Murphy, E., & https://doi.org/10.1080/00450610802050782 Grimes, P. (2021). Judges and forensic science education: A national survey. Innocence Canada. (2021, February 14). Causes Forensic Science International, 321, 110714. of wrongful convictions. Innocence Canada. https://doi.org/10.1016/j.forsciint.2021.11071 Retrieved March 12, 2021 from 4 https://www.innocencecanada.com/causes- of-wrongful- convictions/ Gross, T. (Host) (2014, December 23). Serial host Sarah Koenig says she set out to report, Julian, R., & Kelty, S. F. (2015). Forensic not exonerate. [Audio podcast episode] In science as “Risky Business”: Identifying key Fresh Air. National Public Radio. risk factors in the forensic process from https://www.npr.org/transcripts/372577482 crime scene to court. Journal of Criminological Research, Policy and Golob, B. (2018) Un-making a murderer: New Practice, 1(4), 195-206. media’s impact on (potential) wrongful https://doi.org/10.1108/JCRPP-09-2015-0044 conviction cases, California Western Law Review, 54(1), 137-150. Retrieved March 28,

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The Complexity of Forensic Science: Is There a Gold Standard?

Kafadar, K. (2019). The need for objective President’s Council of Advisors on Science and measures in forensic evidence. Significance, Technology. (2016). Forensic Science in 16(2), 16-20. https://doi.org/10.1111/j.1740- Criminal Courts: Ensuring Scientific Validity 9713.2019.01249.x of Feature Comparison Methods. https://obamawhitehouse.archives.gov/sites/d Kaplan, J., Ling, S., & Cuellar, M. (2020). Public efault/files/microsites/ostp/PCAST/pcast_for beliefs about the accuracy and importance of ensic_science_report_final.pdf forensic evidence in the United States. Science and Justice, 60(3), 263-272. R. v. Truscott [1967] S.C.R 309. https://doi.org/10.1016/j.scijus.2020.01.001 https://www.canlii.org/en/ca/scc/doc/1967/19 67canlii66/1967canlii66.html Krieger, M. (2019). Unmasking a murderer: Technological affordances and the Robertson, J. (2012). Forensic science, an enabler emergence of virtual audience investigative or dis-enabler for criminal investigation? communities. Democratic Communique, Australian Journal of Forensic Sciences, 28(2), 96-121. Retrieved March 7, 2021, 43(1), 83-91. from https://doi.org/10.1080/00450618.2011.5957 https://journals.flvc.org/demcom/article/view 36 /118986 Romano, A. (2019, March 11). HBO’s the case Lieberman, J. D., Carrel, C. A., Miethe, T. D., & against Adnan Syed has no interest in the Krauss, D. A. (2008). Gold versus platinum: case against Adnan Syed. Vox. Do jurors recognize the superiority and Retrieved March 27, 2021, limitations of DNA evidence compared to from https://www.vox.com/culture/2019/3/11 other types of forensic evidence? American /18259534/serial-hbo-the-case-against- Psychological Association 14(1), 27-62. adnan-syed-review https://doi.org/10.1037/1076-8971.14.1.27 Saferstein, R. (2018). Criminalistics: an Murrie, D. C., Gardner, B. O., Kelley, S., & introduction to forensic science. 12th edition. Dror, I. E. (2019). Perceptions and estimates Pearson Education, NY, NY. of error rates in forensic science: A survey of forensic analysts. Forensic Science Serial. (2014). Maps, documents, etc. Retrieved International, 302, 109887. March 7, 2021, from https://doi.org/10.1016/j.forsciint.2019.10988 https://serialpodcast.org/season-one/maps 7 Sherrill, L. A. (2020). The “Serial Effect” and the Pickard, A. (2020, January 27). A recap of the true crime podcast ecosystem. Journalism 20-year investigation into Renee Sweeney’s Practice,1–22. murder and the ongoing court case. https://doi.org/10.1080/17512786.2020.1852 Sudbury.com. 884 https://www.sudbury.com/court/renee- sweeney-murder-anniversary-a-recap- of-the- 20-year-investigation-and-ongoing-court- Smith, L.L. & Bull, R. (2012). Identifying and case-2049786 measuring juror pretrial bias for forensic evidence: Development and validation of the

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Are We There Yet? The Golden Standards of Forensic Science

forensic evidence evaluation bias scale. Statistics Canada. (2021, March 05). Canadian Psychology, Crime, & Law, 18(9), 797-815. Undergraduate Tuition Fees by Field of https://doi.org/10.1080/1068316X.2011.5618 Study. 00 https://www150.statcan.gc.ca/t1/tbl1/en/tv.ac tion?pid=3710000301 Soto, C. J., & John, O. P. (2017). The next big five inventory (BFI-2): Developing and Vicary, A., & Zaikman, Y. (2017). The CSI assessing a hierarchical model with 15 facets effect: An investigation into the relationship to enhance bandwidth, fidelity, and predictive between watching crime shows and forensic power. Journal of Personality and Social knowledge. North American Journal of Psychology, 113(1), 117-143. Psychology, 19(1), 51-6 http://dx.doi.org/10.1037/pspp0000096 https://www.proquest.com/scholarly- journals/csi-effect-investigation-into- Stabile, A. (2019). The elasticity of DNA relationship/docview/1874323504/se- evidence: When prosecutorial storytelling 2?accountid=201395 goes too far. Southern California Review of Law and Social Justice. Retrieved on March Yardley, E., Lynes, A. G. T., Wilson, D., & 6, 2021, from Kelly, E. (2016). What’s the deal with https://heinonline.org/HOL/LandingPage?han “websleuthing”? News media representations dle=hein.journals/scws28&div=7&id=&page of amateur detectives in networked spaces. = Crime, Media, Culture: An International Journal, 14(1), 81–109. Starosta, J. A., & Izydorczyk, B. (2020). https://doi:10.1177/1741659016674045 Understanding the phenomenon of binge- watching-A systematic review. International White, E. (2020, November 17). Steven Wright Journal of Environmental Research and to stand trial for murder of Renee Sweeney Public Health, 17(12), 4469. starting May 25. CBC. https://doi.org/10.3390/ijerph17124469 https://www.cbc.ca/news/canada/sudbury/ste ven-wright-murder-trial-dates-1.5804642

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