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Justice and Law, what are the issues within it?
Science and Innovation in Justice
Traditionally, innovations such as presumptive testing for blood or generating a DNA profile have often been applied to justice-related issues without considering the specific context of a crime reconstruction, or the requirements of a particular justice system. Transformational, interdisciplinary science that addresses foundational innovation is needed.
However, for science research and innovation to be relevant and implementable, it needs to be tailored to the distinctive requirements of a system. One current trend has been the promotion of interdisciplinary science approaches designed to address the entirety of a justice system’s specific challenges. This approach addresses methods, tools and theory, and incorporates considerations of both material evidence (physical and digital) and human actors (in terms of experience, expertise and decision making).
According to a study published in the United Kingdom, 70% of the total government funding made available for forensic science research in that country (by monetary value) is dedicated to technology innovation intended to produce tools primarily deployed by the police and security services. To date, the focus of research and innovation has been to support the delivery of science services to investigators with the short-term deployment of detection capabilities, such as the rapid detection of DNA and fingerprints, or portable ‘lab-on-a-chip’ devices to analyze traces.
It is increasingly recognized that there has been a dearth of research addressing the evidence base for the practice of science across justice systems more broadly. A report published by the US National Research Council in 2009 highlighted this as a serious challenge, which was a view reiterated by the UK House of Lords Science and Technology Select Committee in 2019. There is still a lot of work to be done on the theoretical foundations of the newly-emerging, interdisciplinary sciences that will underpin innovation.
Both technological innovation and foundational research will be needed, in order to create output implementable within the distinctive environment of a justice system. Funding for this type of research is often scarce. For example, in the UK it received less than 0.03% of the national budget for research between 2009 and 2018. The scarcity of funding needs to be addressed, if science is to meet the changing needs of justice systems.
This means that methods and research output need to incorporate an awareness of the critical questions that arise during crime reconstructions, and also be deployable within the resource and time limitations of a typical justice system.
Access to Law and Justice
The United Nations has estimated that approximately one billion people - a significant portion of the current global population of 7.7 billion - are legally “invisible” in the sense that they cannot prove who they are officially and retain related legal protections. Many people lack access to legal services and protections, in both poor and wealthy countries.
A lack of access to functioning legal infrastructure, for example, can have significant related impacts on access to healthcare and education - and can restrict individual economic development. This dynamic was recognized in the UN’s Sustainable Development Goals, established in 2015 to provide a roadmap for a more sustainable global economy by 2030 (goal 16, for example, includes a target of ensuring access to justice for all).
Tangible international commitments to build the infrastructure necessary to enable security more broadly and meet these legal needs are therefore critical. Ensuring access to justice, legal advice, legal institutions, and forensic science is a global need. Lack of access to legal information and institutional assistance puts the dignity, safety, and security of large numbers of people at risk. This challenge takes different forms in different places, but is critical in both poor and wealthy countries.
In the US, for example, as many as 90% of the people who find themselves in court in some states go without adequate legal representation, due in part to the high costs of legal fees. Meanwhile the United Kingdom, which has historically provided comprehensive criminal legal aid based on the founding principle that all citizens should have equitable access to public services, has seen large cutbacks.
Government spending in the UK on legal aid is reported to have been cut by more than £1 billion since 2012, the number of people receiving advice or assistance in social welfare matters has dropped by 90%, and the number of defendants appearing in court without legal advice or representation has increased significantly.
Trust in the justice system is foundational for security and stability in any country. Ensuring access to legal advice and infrastructure that operates in a transparent and robust way remains a critical challenge for both ensuring that trust, and for achieving peaceful and inclusive societies. This requires not only the careful consideration of resources, but also reform of the current oversight of justice systems.
Technology and Justice
Forensic Science
Innovation is creating new opportunities for detection and analysis, but also creating complex challenges. Technology is transforming the ways that science is applied to crime reconstruction and the pursuit of justice.
Technology solutions such as increasingly sensitive tools for detecting trace amounts of materials, the application of artificial intelligence to analyze phone data, and enhanced capabilities to identify people through DNA typing and facial recognition are lending new insights into emerging trends (such as the development of psychoactive substances) and into the networks that enable crime - both social and physical.
Artificial intelligence and machine learning are enabling new ways to preserve crime scenes and develop predictive capabilities; augmented and virtual reality approaches are transforming the training of practitioners, crime scene preservation, and the communication of crime reconstruction to attorneys, judges, and juries. However, the power of these technology tools raises questions about how we should use the increasing amount of data that can be captured, retained, and searched. For example, attributing the source of a piece of evidence through DNA analysis can help establish identity, but it can be important in crime reconstructions to be able to assess when and how that DNA was transferred to the exhibit or item in question, in order to know what it means in context.
The use of larger, more detailed datasets also raises increasingly complex ethical issues related to how technology is used for surveillance and identification. By 2017, the United Kingdom’s Police National Database contained more than 19 million facial images, of which some 16.6 million were searchable using facial-recognition software (this compares to slightly more than 5 million people in the country’s National DNA Database and 8 million in its fingerprint database). In the US, in 2019 the Commercial Facial Recognition Privacy Act was introduced to require companies to inform people before acquiring their facial recognition data, and San Francisco became the first American city to ban the use of facial recognition by public agencies.
Technology is also creating new opportunities to commit crimes (such as cybercrime) and making new types of crime possible (through the use of increasingly life-like avatars, and new means to make it more difficult to distinguish between real and manufactured evidence). In the future, technologies need to not only increase our capability to detect, retain, and search, they also need to help us build systems that can anticipate and form a resilience to novel forms of crime.
Robust crime reconstruction requires the accurate, transparent and reproducible interpretation of evidence. Forensic science is considered to be facing a crisis on a global scale. Reconstructing a crime can involve discovering who was involved, what is the material evidence present, when and how the event occurred, and where it took place.
Forensic science is a holistic process, which brings together a crime scene (preserved clues and specimens), an analysis of recovered materials, and the interpretation (and presentation) of this to a range of different audiences including the police, investigators, advocates, the courts, and the public.
Forensic science addresses the ‘who’ and ‘what’ questions using physical and digital materials, interprets the findings from the analysis of these materials in order to answer ‘how,’ ‘when’ and ‘where,’ generates intelligence for investigators (often within the police) and evidence for prosecutors, legal advocates, judges, and in some jurisdictions members of the public serving on juries - and incorporates an understanding of the role of someone who must reach conclusions about what the available science means within the specific context of a particular case. However, since 2009 government reports published in the US, Canada, Australia, the United Kingdom and elsewhere have expressed concerns about forensic science, identifying a lack of peer-reviewed research to underpin each step of the forensic science process.
This lack of peer-reviewed research impacts the collection, analysis, interpretation and presentation of science evidence, and the robustness of interpretations and conclusions drawn from the science, according to the reports. In the UK, for example, the House of Lords Science and Technology Select Committee published a report in 2019 that identified failings in the delivery of forensic science in criminal justice systems in England and Wales, and called for urgent and systemic reform.
A study in the UK found that in cases upheld by the Court of Appeal between 2010 and 2016, criminal evidence was misinterpreted in 22%. In addition, significant concerns have been raised about the regulation of forensic science services, and equal access to forensic science for both the prosecution and defence.
Many of the reports have highlighted concerns about the validity of forensic science methods - such as hair analysis and bite mark analysis. One FBI study published in the US suggested that in 96% of cases where hair evidence had been used to incriminate a suspect, the evidence had been overstated or misinterpreted. Meanwhile concerns have been raised about the interpretations and conclusions drawn from science that are being applied in justice systems.
Governance, Ethics and Justice
Justice and Human Decision-Making
The science applied to and used within justice systems engages with law, government, and policy, and is impacted by economics, politics, and international relations. Fragmentation and privacy issues are increasingly pressing challenges.
This creates challenges for the coherent oversight of both the value assigned to science, and its use in policing, courts, and public security. For example, the use of science during a criminal investigation incurs costs, yet the benefit of that investment may only be recognized once the importance of a specific piece of evidence is realized in court.
A general lack of coherent oversight across justice systems has led to a tendency to address individual symptoms, such as the miscarriage of justice, rather than root causes, such as a lack of accountability within systems or a lack of a strategic vision for the use of science.
As technological capabilities develop, the amount of data that can be acquired and quickly searched for the purposes of monitoring and identifying individuals increases. This raises questions about how best to balance the rights of individuals with the good of society, as well as related questions about governance, democracy, security, sustainable development, the treatment of people as citizens as opposed to suspects, and the role of the state.
Consider the use of biological information and digital information, for example. DNA databases (both criminal and open-source, commercial types) have incredible potential for law enforcement, not least in the service of “familial searching” for DNA profiles similar enough to a profile of interest that they may belong to a relative. However, they also raise autonomy, consent, and privacy issues - particularly in regard to the retention of data gathered during criminal investigations. Open source DNA databases in particular (such as genealogy websites) can raise issues when used for law enforcement - as was the case in the delayed capture in 2018 of the “Golden State Killer” in the US by using the open source database GEDMatch.
The use of facial recognition technology for security raises not only privacy and consent issues, but also the issues of over-representation of certain racial and ethnic groups in databases, and identification error rates that have been cited as high as high as 35% for non-white women. Significant challenges are apparent in terms of disclosure procedures and the legalities of capturing personal data. These need to be considered in terms of their impact not only in the present, but also in the future.
While the impact of cognitive and psychological factors on how decisions and inferences are made is well documented in many domains, it has yet to be fully evaluated and understood in relation to the application of science in justice systems. A better understanding of human expertise and experience in the practice of science is critical.
Research has shown that in some circumstances extraneous context can impact the conclusions of forensic science examiners, to the extent that when the same evidence is presented but a different context is provided (or all context is removed), the conclusion of an examiner based on their analysis of that same piece of evidence can change. This is an important consideration for any decision made under conditions of uncertainty, which is often the case for scientists, investigators, judges, legal advocates and policy-makers.
Some studies have addressed the impact of environmental factors on judges during sentencing decisions, and research has assessed the impact of factors such as context, motivation, expectations, and experience on decision-making in scientific evaluations of fingerprint and DNA analysis - as well as in fields including forensic anthropology and crime scene investigation. Reconstructing crime requires an understanding of physical and digital forms of evidence, and of how experts collect, preserve, analyze, interpret and present that evidence.
As the Fourth Industrial Revolution proceeds, the roles of people in reconstructing crimes and delivering justice are going to change. As technological capabilities enhance our understanding of how decisions are made, there is the potential to increase the transparency of the process. For example, studies have used eye-tracking technology to better understand expert decision-making, and the role of experience both in crime scene management and in reaching conclusions based on evidence presented in crime reconstructions.
Decision making is critical for the interpretation of evidence, and so better understanding how these decisions are made and how they can be affected by environmental factors should be a priority for any justice system. This is particularly the case for systems where juries of lay people consider the evidence presented by opposing advocates before they deliver a verdict. In these scenarios, the decision making of individual experts is being presented to the court, and jury members are both making decisions as individuals and then reaching a final verdict as a collective, thereby introducing group dynamics as a factor that needs to be considered. The interaction of human decision-making with new technologies promises to become an increasingly a critical element of evaluating evidence.
Security and Intelligence in Justice
The rule of law and public trust in the justice system are essential for other development goals, such as improving health, bolstering food security, and expanding access to education. Developing an ability to better anticipate and disrupt crime requires greater prioritization and international cooperation. An ability to establish security is one of the foundations of a functioning and sustainable society.
Threats to security are increasingly global in nature, and the capability to anticipate and disrupt the critical networks behind these threats needs to transcend national borders. This can be achieved in four main ways: hardening potential targets by reducing exploitable weaknesses (as demonstrated by the work being led by the Dawes Centre for Future Crime at University College London - which is addressing the security implications of emerging technologies such as the Internet of Things); developing approaches that reduce the rewards of committing crime, such as mechanisms to remotely shut down mobile devices; increasing the risk of committing crime by boosting the reliability and sensitivity of detection capabilities (such as monitoring wastewater systems to detect illicit drugs or chemicals used in explosive devices); and reducing the opportunities to commit crime through increased surveillance, either by using technology or via more natural means such as design that fosters visibility and positive interaction.
The capacity to bring increasing technological capabilities to bear on large datasets, along with an understanding of the human decision-making necessary to assess risk and identify threats with improved transparency, is growing. The work of the European Commission for the Efficiency of Justice (a group of judicial experts) amongst others has highlighted the scope of transformation drivers such as the use of artificial intelligence and machine learning within justice systems - and highlighted the importance of developing a dialogue about the use of science for security and intelligence. In terms of intelligence gathering and sharing, similar themes are emerging.
Given the global nature of security challenges, this will require considerable international dialogue, vision, and cooperation. New approaches need to be considered alongside questions about how science can best be integrated into existing infrastructure, while taking human behavior into consideration. This could not only create more technologically-secure systems and societies, but also incorporate an improved understanding of how people use these systems, and interact in ways that create resilience and foster economic growth, development, and innovation.
JUSTICE AND LAW
We face considerable challenges when it comes to ensuring that the most robust science is used in the delivery of justice, and that access to legal protections is made available to the greatest number of people possible. Despite these significant legal challenges to the effective implementation of the SDGs, the global legal community holds a unique position in the delivery of the new agenda through enforcement of the rule of law.
Technological innovation is enabling greater insights and capabilities, and creating opportunities to more rapidly obtain accurate intelligence and evidence. However, the science applied within justice systems operates at a complex intersection of the law, governments, and communities - creating a dynamic and interconnected environment with diverse and sometimes competing interests. Better understanding this environment will be key for positively shaping justice systems.