Acculturating forensic science: what is 'scientific culture', and how can forensic science adopt it?

• Author: Cole, Simon A.
• Position: Conference notes

Introduction I. The NAS Report's Treatment of Scientific Culture II. Science and Scientific Method A. Science B. Scientific Method III. Science as Work IV. Forensic Work V. Normative Goals for Forensic Tasks VI. The Current State of Affairs A. Historical Explanation for the Current State of Affairs VII. Building a Forensic Scientific Culture A. Hierarchy B. The Deskilling of Forensic Science INTRODUCTION

The topic for this special issue is: "How should judges, legislators, and the legal community in general respond to the National Research Council of the National Academy of Sciences' 2009 report, Strengthening Forensic Science in the United States?" I think there are some fairly easy answers to this question that should not brook a great deal of controversy or disagreement.

First, validation studies (1) should be performed for forensic assays (2) for which they have not yet been performed. (3) Although the NAS Report is fairly clear about the absence of validation studies, some controversy remains over whether validation studies have been performed for some assays. Therefore, Dr. Bohan suggests that "validation investigations" should be performed to assess the state of validation of each assay. (4) These might be followed by validation studies.

Second, the proposed National Institute of Forensic Science (NIFS) should be created. (5) Certainly, there are potential downsides and criticisms, but creating NIFS is probably better than the status quo. If created, the Institute should be in the form proposed by the NAS Report. (6) Crucial aspects of this form include that it should be an independent agency, especially independent of law enforcement, and a proper scientific organization staffed by scientists. If it is "captured" (7) by law enforcement, it becomes less obvious that it would be a force for improvement rather than stagnation.

Third, the reporting of forensic analyses results should be reformed and standardized such that they are scientifically supportable. (8) Judges should restrict the admissibility of forensic assays that lack the aforementioned validation. (9)

Finally, judges, legislators, and the legal community should contemplate the broader meaning of the NAS Report's conclusion that the courts' handling of forensic evidence over the past couple of decades has been "utterly ineffective." (10) Setting forensic evidence aside, what weaknesses in our current system of justice does this "utter ineffectiveness" identify? Reforms to the justice system should be enacted so that in the future, courts' handling of scientific issues is less likely to become a glaring embarrassment to the legitimacy of the courts.

These are all things that I think many scholars will agree should be done. Whether they are likely to be done and what is the best strategy to assure that they are done will command somewhat less consensus and may well be the subject of other contributions to this special issue. Indeed, in some cases, compelling arguments may be made that half-hearted, ill-conceived attempts to implement some of these reforms may end up making the situation worse rather than better.

All that being said, however, simply asserting that the recommendations of the NAS Report should be followed seems to avoid a much larger issue. An NAS Report is, after all, a highly inefficient, expensive, and slow way of accomplishing tasks. It is also "one-off," in the sense that we cannot realistically expect there to be periodic NAS Reports indicating what needs to be done in forensic science, especially given the well known difficulties there were in bringing this particular NAS Report into being. (11) The larger issue is why the aforementioned actions never occurred in the first place. In other words, why was it necessary for the National Academy of Sciences (NAS) to intervene in 2009 to demand that validation studies be conducted a century after the introduction of latent print evidence into court, (12) nearly eighty years after the introduction of firearms and tool mark evidence, (13) nearly fifty years after the introduction of bite mark evidence, (14) and more than a century after the introduction of handwriting evidence? (15) Why did the NAS Report have to state that forensic science should be treated as science and not as an arm of law enforcement, (16) or call for the reporting of forensic results to be both standardized and scientifically supportable? (17) Why was it necessary for the NAS to suggest that forensic science be better regulated, or that accreditation of laboratories and certification of analysts be mandatory? (18)

If we pose the questions this way, then the answer to the question, "what is to be done?" takes on a different tone. In addition to the short term actions listed above, a long-term structural solution is required to ensure that past mistakes are not repeated regardless of NAS intervention. Again, NAS intervention is an extremely costly, inefficient, time-consuming, and unrealistic mechanism for governing an area of scientific activity. What is wanted is for forensic science to become self-governing in such a way that future NAS Reports become unnecessary and that future outside observers will not find lacunae quite as great as the ones discovered by this NAS Committee (validation, accreditation, certification, standardization of testimony, and so on). The hope then would be that fifty years from now, rather than convening another NAS committee which finds new deficiencies in forensic science (or, worse, finds that the existing "serious deficiencies in the nation's forensic science system" (19) have still not been addressed), those actions that a future NAS committee would expect to have occurred will have occurred naturally.

The NAS Report does not focus very much on the "why" questions, but, to the extent that it does, its discussion is centered around what it calls the "culture of science." (20) The Report describes the "culture of science" as an important missing ingredient in at least parts of forensic science. (21) It states that "some ... activities" that fall under the broad rubric of "'forensic science' ... are not informed by scientific knowledge, or are not developed within the culture of science." (22) Further, it touts "scientific culture" as a potential antidote to what one of the Committee co-chairs called elsewhere "The Problems That Plague the Forensic Science Community." (23) "The forensic science disciplines will profit enormously by full adoption of this scientific culture." (24) Moreover, the Report asserts that "a culture that is strongly rooted in science" is a "minimum" criterion for the new federal agency it proposes, the National Institute of Forensic Science (NIFS). (25) It would seem, then, that in addition to following the recommendations of the NAS Committee, forensic science should adopt scientific culture, and this Article will focus on that question.

In focusing on this issue, I believe that I have taken on a more difficult task than, arguing, as I have elsewhere, (26) that validation studies of forensic techniques should be conducted or even that evidence should not be admissible without such validation studies. (27) There are vigorous debates about what "validation" means, (28) and since the NIFS has not yet been created, there are disagreements about what "it" is. (29) Even so, validation, the NIFS, and standardized testimonial reporting are concrete things compared to the nebulous notion of "scientific culture." What is this "scientific culture" that the NAS Committee says is both missing and needed in at least some parts of forensic science? The Report never explicitly defines scientific culture. Turning to the scholarly literature is of little help. "Scientific culture" is a rather vague and contested term that is used to mean a variety of different things. (30) If no one agrees upon what we mean by "scientific culture," then the NAS Report's call to "adopt" it becomes an empty rhetorical gesture, easily answered by any interest group that simply chooses its preferred definition of "scientific culture" and declares that forensic science has or has not adopted it. I will argue, however, that all is not lost merely because of the vagueness of "scientific culture" and the NAS Report's discussion of it. To the contrary, it is important, and perhaps indispensable, that we can articulate precise meanings for the term, and that forensic science adopt something called "scientific culture" if any of the commonly desired responses to the NAS Report articulated above are to occur.

I should note that, while I will be critical of the NAS Report's treatment of the notion of "scientific culture," this should not be construed as criticism of the Report as a whole or of the NAS Committee. In my view, the Report's lucid discussion of such issues as validation and "individualization" far outweigh the ambiguities I will identify around the notion of "scientific culture." Indeed, it is partly because I agree so wholeheartedly with so much of what is elsewhere in the Report that I have chosen to engage in this extended attempt at developing further the Report's discussion of "scientific culture."

In Part I, I describe how the NAS Report characterizes "scientific culture." I suggest that the described attributes of scientific culture are vague and unspecific, and that more thought is necessary to elucidate how they might map onto forensic science. In Part II, I suggest that the NAS Report's characterization of "scientific culture" is based on popular accounts of science and "the scientific method." I suggest that these accounts are incomplete, generally considered obsolete, and not particularly helpful in pointing a way toward reform of forensic science. In Part III, I posit a conception of science as work rather than method. In Part IV, I offer a tentative mapping of how forensic science might be understood as work by dividing forensic labor in a set of general tasks...