Diritto Criminologia e criminalistica

On a possible system of principles in forensic investigation

(di Maciej Szostak e Sorin Alamoreanu )

Human knowledge has reached exceptional technical levels, many more of the researchers in the forensic lab examination have a professional background in physics, chemistry, bio-chemistry,   thus “, Forensic Science is often seen only as a technical field, even if is rather a multivalent field of reality’s investigation and explanation. I think this consists in the incapacity of certain lawyers to understand the part and importance of Criminalistics as a way to reveal and express the truth”[1].

Trough it’s tasks and goals, such as: ideal reconstruction of accidents, reconstruction of airplane wreck, identifying suspect substances, of certain tools and other mark-generator object, document and skeleton reconstructions, etc. “ Forensci Science has a well defined individuality of it’s own”[2]. As an obvious consequence modern Forensic Science has generated a set of general principles and rules of investigation. They support and complete each other in order to respond to the procedural requirements for the evidences, since in several cases forensic experts must give answers that are as comprehensive as possible based mainly on certain material evidences “ severely limited in size and quality and of a rather uncertain origin”.[3]

Some of the ideas below have been already mentioned, but we still would like to draw attention on what we find as a main line of ideas:

  1. Traces appear as a result of interaction and transfer.

Locard’s fundamental principle of modern Forensic Science- the principle of transfer- also generates the consequential corollary “absence of evidence does not mean any evidence at all” The intricate interactions of the material universe may intervene in time and alter or destroy existing evidences.[4]

II. The principle of the five consecutive steps (stages) of material evidences.[5]

The normal course of evidence collecting and the evolution of the investigation are generated through these steps, and include:

  1. Evidence identification It is the stage of the field personal, meaning that it is possible to have any expert at all at crime scene from the team that will undertake the subsequent stages. It is though utterly important for the expert examiner to have a clear image of each stage, thus being able to be more accurate in his findings.
  2. Evidence recovery and collecting is a stage during which one can encounter sometimes errors that will affect the process development, even to the destruction of the evidence.
  3. Trace analysis. This is the laboratory step of examination and it supposes strict following of methodology and handling protocols, according to the size, type and nature of the evidence in case. During this compelling stage seldom the need to create and develop new working methods may appear, as well as the one to upgrade and/or perfect the already existing ones.
  4. Traces interpretation. Based on the previous stage results, the expert will be in a position to draw conclusions regarding the nature and contents of the trace, the generating object, such as causes and circumstances of the incident, sobriety , intake of substances, firearms identification, etc. It is generally a crime scene task as a necessary moment of Phenomenological traces interpretation[6].
  5. Conclusions and use of evidence in court. It is a decisive step in future evolution of the investigation and of the trial, establishing the authors in forgery, violence, murder, etc. Certain legal systems find it necessary to isolate the expert from the rest of the investigation, on the account that he will not be biased in his opinion by “a deeper knowledge” of the case. Other opinions incline to a brief to ample introduction of the expert on the circumstances of the case..[7]

           III. The principle of symbiosis between objective and subjective in Forensic Science.

The general goal of Forensic Science is to establish with the most objectiveness the circumstances, motivations and consequences of a certain event, incident, accident during which several beings, objects , phenomena have interacted.   The Forensic expert is   seldom asked to reconstruct at logical-deductive level certain unique events by use of the “ideal instruments “ of statistics, formal logic, chemistry, mechanics, physics, etc. as well as his professional personal experience. In a paradoxical way, even if his answers will be formulated scientifically – meaning objectiveness-they may be at a certain amount affected by subjectivity. But what does this mean? The technical and cognitive limitations of the given scientific moment, the individual and/or material limitations for the suspected evidence and the examiner in charge.

These circumstances of negative meaning given to the term “ subjective” are only of a relative consequence. They express rather the momentary stages of knowledge and available equipment, they subsequent miss-interpretation due to error and contamination during evidence recovery and handling. It has been said with sufficient reason that “ an objective Forensic Science exist only through a relatively subjective judgment”.[8]

IV. The principle of complete and un-altered recovering of the evidence emerges from the previous set of ideas. With a complete and “clean “ image of the reciprocal positioning of the crime scene traces, it would be later a strong reference point in clarifying the more complex sides of the case trough trace interpretation. “ The results of identification, meaning expert conclusions as close as possible to certainty, are linked to the quality, quantity and authenticity of the evidences.”[9]

V. The principle of a necessary scientific character of the conclusions is generate and required by the scientific nature of the Forensic examination. As a matter of consequence the needed methodological approach, the thorough evaluation of hypotheses, the consecutive rules of experiments and the logical-deductive appreciations and conclusion in order to elaborate the entire Forensic examination report must be put in use.

Two different traces may be of a powder-like aspect- but one may be a drug-like, the other can be a benign white powder (talcum, flour, etc.) but they will both undergo the same analytical examination process until differentiated and identified as such.

  1. The Principle of the dialectical unity of identity and individuality.

“ The final goal of Forensic Science is to establish individuality or to get as close as possible to it…. Forensic Science is the science of individualization.”[10]

In error ,the sign of equality is placed between resemblant and identical, even though the two notions are distinct, at least from the Forensic scientists point of view. The confusion is sadly, still present in the understanding and explanations of certain lawyers. The equation of identity is expressed as a result of error trough the verb “ to be “ even if it really has a more complex semantic content. Beyond the common signification of identity understood as “ exactly resemblant to “ the notion has a conceptual different use:

  1. identity understood as resemblance;
  2. b) identity as un-repeatable individuality.

Forensic Science must distinguish between resembling and identical, since in the material Universe two object will not coincide to the minutest details, even if their source is an industrial one –considered by most as a relatively perfect repetition of objects…Objects, phenomena, beings are identical only with their own selves, but still in a continuous change. With this, the goal of Forensic Identification turns into the one of Identitatis probantia, meaning that to Forensicaly identify an object primarily means to be able to separate it from all the other ones of the same group, source, etc, that have been subjected to the examination process. Based on this dialectical nexus of individuality versus identity, Forensic Science may function as “ the processus of revealing the identity of objects, persons or phenomena, that are in a direct causal link to the illegal event, with the aid of scientific methods, in order to reveal the judicial truth.”[11]

VII. The dualistic character of the evidence. In the material world, traces and evidences have a dual presentation ( or character). They are at the same time material evidence, and also ideal ( ideatical ) evidences. The latter can be seen, at least in our opinion, as consisting of the complex of eye witness memories, as well as personal skill, and planning of the perpetrator, his habist, somatic memories and/or reflexes that will create “ the Crime scene characteristic features”, the PUNCTUM SALIENS in the criminal’s profile.

Starting with the material details and contents of the evidences collected at crime scene, and continuing on their ideal content ( i. e. the ability of a forgery, the planning of a breaking in , the tools used in a certain violent act, the type of victim, etc.) “the canvas of evidence analysis” will enlarge with new details offered to the investigator by transforming the (material data ) objective into ideal data (subjective ground marks). A clear example is in our view the lie-detector test where the psychical state of a person materalize into concrete images of it.

This dual character of evidence is able to spread a new light onto the principles of investigation.

The authors of this paper do not want to create at any cost new notions, but rather initiate a re-discussion of the principles and methods of investigation in view of the needed re-evaluation of the importance of methodology in modern Forensic Science.

[1] Zdsislaw Kegel –Speech at the Ceremony for awarding the Honorary Membership Diploma of The Romanian Society of Criminology andf Criminalistics May 7 th 2004 Cluj Napoca.

[2] Robertson B., Vigneaux G.A. Interpreting evidences Chicester Wiley 1995 pag. 32

[3] Gaudette B.D. Basic Principles of Forensic Science , Encyclopedia of Forensic Sciences Academic Pres 2000 pag.297

[4] Idem.

[5] Apud Gaudette cit.supra.

[6] On this Alamoreanu S, Zamfirescu N.S. Introducere in interpretarea fenomenologica a urmelor Ed. Alma Mater Cluj Napoca 2004).

[7] We would mention here a widespread practice of the courts and judicial organs in Romania to include in their dispositions for a forensic examination a brief presentation of the case.

[8] Gaudette. B.D. op.cit. pag. 299.

[9] Păsescu Gh. Competenta expertului criminalist cu privire la probele de comparat Comunicări ştiinţifice la al 7 lea Simpozion Naţional de Criminalistică Ed. Alma Mater Cluj Napoca 2003 pag. 21

[10] Kirk L. Paul, The Ontogeny of Crinimalistics, Journal of Criminal Law, Criminology and Police Science, nr. 54-1963, pag. 235.

[11] Stancu E., Investigarea ştiinţifică a infracţiunilor, Bucureşti 1986, pag. 35.

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