Science in the court: pitfalls, challenges

and solutions
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Éadaoin O’Brien1, Niamh Nic Daeid2 and Sue Black2
1
School of Law and Human Rights Centre, University of Essex, Wivenhoe Park, Colchester CO4 3SQ, UK
2
Centre for Anatomy and Human Identification, University of Dundee, Dow Street, Dundee DD1 5EH, UK

Opinion piece We are at a critical juncture for the forensic sciences. A number of high-profile
reports and a growing body of literature question and critically reflect on core
Cite this article: O’Brien É, Nic Daeid N, Black issues pertaining to the methodologies informing forensic science and their
S. 2015 Science in the court: pitfalls, effective use within the criminal justice system. We argue for the need for
challenges and solutions. Phil. Trans. R. Soc. B an improved association and outline key areas that require attention from
370: 20150062. practitioners operating within the fields of both forensic science and law.
http://dx.doi.org/10.1098/rstb.2015.0062

Accepted: 11 May 2015

1. Introduction
One contribution of 15 to a discussion meeting Increasingly, academics and legal practitioners are adopting a more critical atti-
tude towards the forensic sciences, the way they are introduced at trial and the
issue ‘The paradigm shift for UK forensic
role they play in convictions or acquittals once admitted. Moreover, practitioners
science’. from a range of forensic science specialties have begun a reflective appraisal,
wherein the shortfalls and indeed validity of a number of heretofore accepted
Subject Areas: techniques are being questioned. De facto deference to the weight ascribed to for-
health and disease and epidemiology ensic evidence in the courtroom or indeed to the opinions of experts is being
consigned to the past. Shortfalls inherent in the current system include operational
problems related to the efficiency of the justice system and the way it is adminis-
Keywords: tered [1], the admissibility of expert evidence [2], reliability tests [3] and structural
forensic science, expert evidence, problems including the influence of the evidence tendered by experts on the jurors
judicial confidence [4], the adversarial nature of the system in common law jurisdictions [5], the bias
of legal representatives [6] and flawed assumptions in forensic sciences [7–10].
The benefits yielded from the output of the forensic sciences [11]1 and associ-
Author for correspondence: ated utility for prosecutions or acquittal of the perpetrators of crime has meant
Éadaoin O’Brien that scientific evidence has become a mainstay in the functioning of our crim-
e-mail: eobrien@essex.ac.uk inal justice system. While increasingly the techniques of the forensic sciences
are of relatively contemporary origin, the premise behind using physical or
material evidence and their application in a legal forum has a much longer
history. It would appear that the affiliation between human testimony and
material evidence has long since been beset with an underlying tension. As
Eyal Weizman [12] highlights, ‘the history of jurisprudence tells of a constant
tension between human testimony and material evidence, and an ongoing
shift of emphasis, at different periods, between them’ ( p. 105). Moreover, the
fruits of forensic evidence remain latent for the purposes of justice until an
act of conversion takes place, or in other words an interlocutor is required to
interpret and explain the significance of any piece of potential evidence.
Derived from the Latin forensis, the word’s root refers to the ‘forum’, and the practice
and skill of making an argument before a professional, political, or legal gathering. In
classical Rome forensics was part of rhetoric, which of course concerns speech. How-
ever, forensics included not only human speech but that of objects. In forensic
rhetoric, objects could address the forum. Because objects do not speak for them-
selves, there is a need for ‘translation’ or ‘interpretation’—forensic rhetoric requires
a person (or a set of technologies) to mediate between the object and the forum: to
present the object, interpret it and place it within a larger narrative. This was the
role of the rhetoricians and today it is the role of the expert witness. [12, p. 105]
Thus, when unpacking the association between science and the law, our critical
gaze turns not only to the material or forensic evidence, but also to the medium
through which the evidence is presented to the forum—the expert witness—
and how this dialogue is received and perceived by the audience in the

& 2015 The Author(s) Published by the Royal Society. All rights reserved.
court, comprising both legal practitioners and lay members same, it cannot be assumed that the end-point for these tra- 2
of the public. Our concern with initiating a paradigm shift ditions, when they meet in the court room, will be the

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should, as a consequence, focus on the robustness and same. And indeed such divergence can give rise to significant
admissibility of the evidence that comes before the court, the operational challenges. As the Daubert 6 decision notes, ‘there
suitability of the expert, and the integrity and effectiveness of are important differences between the quest for truth in the
this act of active translation. courtroom and the quest for truth in the laboratory. Scientific
conclusions are subject to perpetual revision. Law, on the
other hand, must resolve disputes finally and quickly’
2. A critical turn: the challenges facing forensic ( p. 2798). While the relationship between science and law is
a complex one, with multifaceted factors contributing to the
evidence and its role in our courts current state of play, we outline here three issues that, in
A critical juncture in the confidence bestowed on forensic our opinion, could be addressed if we are to seek an

Phil. Trans. R. Soc. B 370: 20150062

sciences within a criminal justice context can be identified improved, and healthier, association. This is by no means
in a growing body of literature and a number of high-profile an exhaustive list.
reports that question core issues including how evidence is
collected from crime scenes, how it is collated and interro-
gated in the laboratory setting, the manner in which (a) Admissibility of expert evidence
evidence is introduced at trials, how it is ultimately inter- In England and Wales, a somewhat laissez-faire approach to the
preted and evaluated within a case context, and the role it admissibility of expert evidence has been reported, and it is rare
plays in convictions or acquittals once it has been admitted for any forensic evidence to be deemed inadmissible, unless it is
(cf. [11,13– 16]). Challenges and pitfalls that have been ident- glaringly inappropriate [16]. This approach is justified by the
ified in relation to the introduction of forensic evidence in parties concerned through the conviction that the reliability of
the courtroom range across both operational problems and any piece of expert evidence will be challenged effectively
structural shortcomings. Tension points in the relationship during the trial, either by cross-examination or by the opposing
between science and the law are exemplified in high-profile party’s expertise. The deficit in this approach is wryly noted
cases, including the convictions in Cannings,2 Dallagher,3 by Schauer [27], who remarks: ‘The scientist who seeks to deter-
Clark 4 or Harris. 5 The work of rights-based movements mine whether drinking red wine reduces the likelihood of heart
including the Innocence Project are premised, in part, on an disease does not, for example, summon representatives of the
underlying mistrust of the reliability of expert evidence intro- wine industry and the Temperance League to each make their
duced at trial and the role that forensic evidence, inter alia, cases and thereafter decide which of the two advocates is
plays in wrongly convicting the innocent, or indeed conver- more believable’ ( p. 1193).
sely contributes to a failure to convict the guilty [17,18]. Looking to other common law systems, when compared to
Ironically, ‘innocence fraud’ is now being discussed under the Frye and Daubert standards that have been imposed in the
the auspices of an Innocence Audit [19]. USA, this method of approaching the admissibility of expert
While the systematic difficulties that serve to undermine evidence seems fundamentally flawed and almost an abroga-
the relationship between forensic science and the law tion of responsibility. The Frye standard, established as a
should not be reduced to a discourse on miscarriages of jus- result of the judgment in Frye v. United States,7 demands
tice, it is perhaps this phenomenon that has become most that, in order for the results of a scientific technique and
emblematic of the breakdown in communication and perhaps the subsequent evidence to be admissible, that technique
therefore is the obvious mechanism by which a paradigm must have gained general acceptance in its particular field
shift might be effected. The cost of a troubled relationship [28]. The Daubert standard, as instituted via the Daubert
arguably becomes most apparent in the light of such failure v. Merrell Dow Pharmaceuticals 6 judgment, requires the trial
to deliver justice (e.g. [7,10,20–24]. Key texts [25,26] point judge to screen the scientific evidence and testimony to
to procedural errors that may lead to a wrongful verdict: a ensure that it is relevant and reliable [28]. Although highly
failure to provide the jury with key information due to negli- preferable to the laissez-faire approach to scientific evidence
gence [13], bodies in charge of ensuring the quality of forensic in England and Wales, these two standards have their own
services that do not have effective quality control procedures shortcomings. With Frye, that a practice is accepted in a scien-
in place to check adequately the evidence tendered before tific community is not proof of its quality or veracity. The
being included in trials [26], the use of non-unique identifiers researcher devising a novel practice might initiate what
for the exhibits or samples tested [25], the use of checking Kuhn termed a ‘scientific revolution’, which necessitates
procedures relying on non-unique identifiers [25], ineffective working outside an entrenched scientific paradigm. The
communication between the bodies responsible for gathering Law Commission agreed that this type of emergent scientific
and checking the evidence [25], and lack of proper implemen- practice should not be excluded in principle as courtroom
tation of handling procedures [25]. It has also been pointed testimony but scientific safeguards must be appropriate to
out [13] that there is a need to guard against the so-called ensure that evidence does not stray beyond the reasonable
‘escalation effects’—when one such procedural or human limits of the approach. With Daubert, screening scientific evi-
error occurs, this can lead to additional cumulative errors dence requires a level of scientific preparation and knowledge
potentially culminating in a wrongful conviction. Although background that is not usually in a judge’s repertoire. It was a
not uncomplementary to each other in an operational recognition of the problems inherent with the admissibility
sphere, forensic science and the law represent epistemologies and understanding of expert evidence in criminal proceed-
from different disciplinary traditions and different under- ings and an acknowledgement of a need for reform that
standings of truth can inform the work of both scientific prompted the Law Commission’s consultation and review
and legal practitioners. If the starting points are not the process in England and Wales.
(b) Reliability factor Certain trial appeals and pieces of literature8,9,11 [8,9,31–36] 3
The reliability factor is a further challenge which must be con- have focused on the dubious classification of a number of

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sidered. This stems from decisions in cases such as Reed 8 or branches of forensic science as ‘science’. While they can be
Atkins,9 where the court admitted evidence that would, by organized and recognized as constituting a unified body of
the Law Commission’s test, be considered unreliable because knowledge, and the expert can draw on this to formulate
of potential methodological issues despite them being made an opinion as the Law Commission suggests, this does not
clear to the jury. For example, judgments such as Reed, guarantee a reliable or indeed scientific opinion. The special-
R. v T 10 and Atkins demonstrate the specific problems associ- ties particularly under challenge are the so-called ‘soft
ated with a lack of ground truth databases for some of sciences’, including footwear mark analysis and fingerprint
the branches of forensic science used in these cases. The analysis with more severe criticisms forthcoming for gait
reliability of forensic sciences that do not permit statistically comparison and facial mapping. What differentiates these sub-
jects from more accepted forensic expertise including DNA

Phil. Trans. R. Soc. B 370: 20150062

quantified opinions to be expressed is a well-documented
topic. In cases such as this, there is general disagreement analysis, drug analysis or toxicology is the lack of a clear meth-
between scientists and legal representatives and also between odology and underpinning scientific research and rigour. For
academics and practitioners. Academics often advocate for a some of these subjects, there is a very arbitrary standard for
statistical quantification of expert opinion, claiming that it is a expert qualifications, or indeed standards may be non-existent.
factor that determines the reliability of any branch of real Fingerprint analysis has probably the most clearly formulated
science [3,14,29 –31]. For their counterparts, there is a view standards, but yet these could, and have been, open to critique
that such a standard is plainly unnecessary or even undesir- from a methodological perspective: in the past to qualify as a
able, given the challenging nature of understanding statistics fingerprint expert, the practitioner need only complete the UK
for many legal practitioners and jury members. National Fingerprint Learning Programme, although in more
Starting from unreliable expert opinion in cases such as recent years and post the Scottish Fingerprint Inquiry, compe-
Cannings, Clark or R. v T, the problem of determining reliability tency tests have been introduced by some police forces. Other
has gained prominence, either as a result of the expert expres- soft sciences, such as facial mapping, gait analysis or footwear
sing opinions outside their own field, straying beyond the mark analysis have no specific subject standards and usually,
boundaries of their own expertise or relaying it in a form of a in order to be considered reliable as an expert, one has only to
quantified scale that has no sound scientific basis. The need prove experience in the field. The statement in court ‘I know
for a standard to determine whether an expert opinion is this to be true because I have seen hundreds of these cases’
robust, worthy of consideration or merely an attempt to serve should never be accepted.
the views of the party the expert is representing arises Compounding this challenge further is the lack of compar-
especially in connection with forensic evidence types that are able data or ground truth databases available for population
traditionally highly reliant on comparative and therefore lar- representativeness, which would permit comparison of forensic
gely subjective analysis: e.g. fingerprint analysis, footwear samples within appropriate reference boundaries. This problem
mark analysis, handwriting, ballistics, fibres or hair. In certain has been especially glaring in cases8,911,12,13 where the experts
cases, the unreliability of these opinions has prompted a have used sliding scales to quantify the level of support the
demand for standards that are verifiable and grounded in science offers for a particular hypothesis. This is problematic
available data, and this has proved problematic. in the absence of more representative population data,
The introduction of a developed mathematical approach especially since the softer sciences may rely on minute obser-
stemming from the application of Bayes theorem represented vations of features or traits. These can be salient if the experts
a disruptive and profound change to evaluating the meaning can prove that the co-occurrence of two or more of these
of scientific evidence as it was applied to the set of circum- details is rare in the population (but how rare?), but they
stances relating to an alleged criminal act. The framework could also be deemed insignificant in the absence of suitable
that has emerged over many years now provides a means of comparator data. The problem is explained very well by
addressing competing hypotheses ( prosecution and defence) Edmond et al. [31]:
and emphasizes the necessity to demonstrate robust, logic,
The absence of a database or some other credible method of
transparent and balanced thinking [29]. This can involve [3]
assigning significance to purported similarities means the obser-
ver has no reasonable basis on which to draw conclusions about
(1) the use of the likelihood-ratio framework for the evaluation of
identity. This makes it necessary to invent a value (like ‘lends
evidence; (2) a strong preference for objective measurements, the
strong support’), which is simply a subjective summation (or
use of databases representative of the relevant population, and
impression) lacking methodological rigour. ( p. 3)
the use of statistical models; and (3) testing of the validity and
reliability of the forensic-comparison system under conditions
reflecting those of the case at trial. ( p. 2) On this point, there is a clear disagreement, with legal
academics and some practitioners claiming that this type
Of course, it is also certainly recognized that with the possible of evidence ought to be admitted as it still assists the
exception of DNA, the development of both representative jury, while other scientific experts challenge the position
and ground truth databases has been financially challenging as offering no solid base upon which to build an expert
to say the least. The implementation of the likelihood-ratio opinion. Issues such as this have been at the heart of many
approach for DNA evidence and more latterly other evidence failed appeals [31], with the exception of R. v T. The decision
types ( particularly trace evidence) has facilitated the develop- of judges to deem the conviction safe has also achieved
ment of new thinking in case management in relation to an support and recognition in the literature [14,27,35,37,38]
overarching case assessment and interpretation approach, for various reasons including, ‘[T]he reliability and validity
where forensic science is used in a holistic manner rather standards for scientific evidence that courts use must be stan-
than as a series of deployed siloed tests. dards that come, ultimately, from the legal goals of legal
institutions and not from the scientific goals of scientific a lay person has no means to decide which of two experts, 4
institutions’ [27, p. 1214]. expressing opposing viewpoints, is correct. These arguments

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These points are perhaps best illustrated with DNA are usually settled in courtrooms by exogenous methods,
analysis, the so-called ‘gold standard’ of forensic sciences including ranking the experience, qualifications or reputation
[11]. Here, the scientific case is compelling, with a solid scien- of the two experts, and dismissing one of the two opinions
tific acceptance of both the science and the technological on the basis of relative inexperience.8,12,13,14
solutions used to extract and analyse DNA profiles. Where Finally, yet other forensic sciences make use of interpret-
the unrest currently lies is with the use of low template ative analysis, which aims to ‘reconstruct’ the accident or
DNA and the interpretation of mixed and complex DNA pro- crime based on ‘clues’ available at the scene. This approach
files, where there are contributions from more than one is highly subjective and depends on the experience and intui-
individual or they represent degraded or partial profiles. tion of the expert relative to a given case. Such a form of
Here the scientific debate is far from resolved, with differing analysis has been used in Kwaik,15 where the expert used a

Phil. Trans. R. Soc. B 370: 20150062

views espoused in the literature. Ultimately, this has resulted computer program which, on the basis of input, could
in the recent rejection of this form of DNA evidence in both allegedly re-create a car accident.
USA [39] and Australian courts. This is perhaps the ultimate The three approaches presented above are likely to have a
example of previous commentary coming home to roost ‘as progressive decreasing influence on the jury, since the first
with other areas of expert evidence, not all DNA results are strand tends to be considered more objective and the last
equal, with some being rather more equal than others’ [40]. one tends to be regarded as being more questionable and
The consequences of this ruling are far reaching, given that subjective. But this is not to say that the last two categories
the gold standard has now (at least in two jurisdictions) have no value and do not influence the jury. They do so,
been fundamentally questioned and rejected. either by means of an insufficiently transparent, and prob-
ably inadequate, methodology,16 or by means of expert
credibility—typically based on an expert’s experience, quali-
(c) Rapport between the expert and the jury fications, reputation and performance. The fact that expert
A further challenge for science in the courts is the rapport credibility has a significant influence on the jury can be
between the jury and the expert. Forensic evidence needs to seen from a number of cases where scientific debates in the
be ‘[s]cientifically rigorous, but accessible’ [41, p. 2]. The court were adjudicated on this basis.14,15 This way of influen-
Turner rule allows the court to exclude evidence, even if it cing the jury seems nothing short of an ad hominem fallacy,
is of probative value, if it is likely that it will influence the where a claim is accepted or rejected on the basis of an irre-
jury unduly on a matter on which they ought to form their levant factor about its author. The problematic way of
own independent judgment [37]. It is a necessary way of testing the science by means of testing the expert’s back-
limiting the admissibility of expert evidence given the fact ground has also been raised by the jury in Tang,17 who
that it is presented to lay people, who might defer to it too pertinently asked the judge in connection with the expert tes-
readily. An important consideration when reviewing the role tifying: ‘Accepting [the expert’s] qualifications, should we
of forensic evidence in the courts relates to the nature of also accept her methodology?’ (para. 50). Ideally, this
the scientific evidence and the degree to which it influences should not be the case, even acknowledging how important
the jurors—and there are three levels we can consider. experience and qualifications are, they only really contribute
Introduced through expert evidence are sciences which to the interpretation of evidence within a case context. The
require an empirical analysis of the data; ‘a method that relies question is whether there is anything else of value, apart
on scientific instrumentation to provide quantitative data that from perceived credibility.
can mathematically represent results’ [42, p. 4]. Examples of Maybe expertise that seeks to conceal its lack of methodo-
this are drug analysis, toxicology or DNA analysis. These are logical rigour behind an expert with an impeccable reputation
distinct for their quantitative approach to evidence and the should be deemed no more than observational evidence.
fact that the result can often be codified, either as a ratio or as Consider also the case of newly emergent, but perhaps
a number. The perception of the lay public is that these sciences highly dubious scientific underpinning, including barefoot
are largely infallible: there is little room for human error, and morphology [44] or brain fingerprinting [34], which have
objective results can be furnished by a computer. This is a extensive intuitive appeal, but do not meet the criteria for
position which is increasingly undermined with recent chal- classification as core scientific evidence. The significant gap
lenges to the validity of DNA analysis in court [43] or, for between scientific practice and these techniques should not
example, the increasing challenges to the identification of new be hidden from the jury behind the credibility and persuasive
psychoactive substances. performance of any expert. Accounting for this, it is perhaps
The forensic sciences that rely fundamentally on compara- the case that the influence expert evidence and the credibility
tive analysis: ‘a method that involves the comparison of an of the experts themselves can have on the juries is very much
item of evidence of unknown source against an item of dependent on what sort of evidence is admitted and in
known source or origin’ [42, p. 4] cause different issues. which light it is portrayed by the judge. Preferably, practices
Forms of comparative analysis include fingerprint evidence, that fall short of methodological rigour should not be admitted
ballistics, footwear mark analysis or handwriting, and these at all, on account of their unreliability. However, a judge might
are often-used ‘sciences’ in the courtrooms sometimes furnish- hesitate in excluding such well-established practices as finger-
ing exculpatory results. Evidence types such as facial mapping print analysis from trial: ‘procedurally, there is always a
or gait comparison also involve comparative analysis but are temptation to let evidence in, fully understood or not, and
less well accepted. The problem is, nonetheless, that when a for the judge to leave it until the end of the trial to determine
dispute exists between experts, there is no objective way to what weight, if any, is to be given to it’ [45, p. 8]. Consequently,
reach agreement. In other words, based solely on the science, the judge should assume the function of guiding the jury and
attenuating the disproportionate impact this sort of evidence undertake their craft and use their skills in the correct way, 5
may have on the jurors. The judge makes clear the limitations working in partnership to inform the investigative process

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of the respective scientific practice, assessed against a scienti- rather than being downgraded to act simply as laboratory tech-
fic, not a legal, standard, at the same time managing the nicians who churn out data and report their results in a
expectations that jurors may have from any piece of scientific contextualized vacuum.
evidence during trial by defusing the so-called ‘CSI effect’. One of the overarching themes which emerges from the
In this way, the judges assume the role of a ‘gatekeeper’. To current forensic science ecosystem is that of poor communi-
be competent in this role, the judge is required therefore to cation. It is critical that the legal participants and jury
remain current with scientific advances but they are rarely understand the underpinning scientific rationale of the evi-
qualified to do so and indeed the vast array of subject matter dence placed before them and can have confidence in its
makes this a Herculean task. In the words of the Lord Chief scientific rigour. Armed with this basic knowledge, they are
Justice [41]: informed to translate and contextualize such evidence to

Phil. Trans. R. Soc. B 370: 20150062

Scientific developments, inconceivable 20, let alone 50 years ago, the case within which it is presented.
come with risks: the pace of change and complexity of techniques
present challenges for all involved, not least those of us without
scientific backgrounds. The court must be satisfied that there is
sufficiently reliable scientific basis for the evidence to be 4. Conclusion
admitted. ( pp. 2 –3) In his address on the theme of expert evidence and the future
of forensic science in criminal trials, delivered in late 2014 for
3. Solutions the annual Criminal Bar Association Kalisher lecture, the
For the challenges highlighted above, there are practical Lord Chief Justice of England and Wales [41] posed a rhetori-
solutions which can be proposed to address the current inade- cal question, asking ‘[w]hy is forensic science a relevant and
quacies. The recommendations made in the NAS report are a topical subject’ ( p. 2). Likewise, we may ask, why is forensic
good reference point and it has been observed that they ‘are science and its role in criminal trials a relevant subject for the
just as applicable to our system in the UK as they are to the focus we have undertaken in this paper? To quote The Lord
US’ [46, p. 4]. More specifically, for England and Wales, Chief Justice, it is important for four core reasons:
the Lord Chief Justice [41] proposed several key measures First . . . we have always faced problems. Second, there are cur-
for improvement relating to consolidating the ‘reliability of rent problems. Third, we have had excellent proposals for
reform from the Law Commission which have been largely
the underlying science’ ( p. 6), proposed means by which
implemented in a novel way. Fourth, embedding the reforms
the quality and integrity of expert witnesses can be ensured and addressing other problems is important for overall public
and considered means by which forensic expertise can be confidence in criminal justice. It will show the public why justice
introduced at trial in a manner where it can be understood. matters at a time when there is a risk that justice will be over-
For the latter concern, this is an important component for rea- looked as there are so many other calls on the public purse. ( p. 2)
lizing a significant step change for our current system, because Unsafe forensic evidence and unclear boundaries to guide
a strengthening of the underlying science and the expert wit- forensic expert testimony in the courts have the potential to
ness selection, through accreditation for example, would undermine a system which can lead to grave consequences,
render only limited gains without providing a way in which including miscarriages of justice. Our system of criminal jus-
expert evidence can be understood by those who are called tice works under cherished principles including the right to
upon to determine a defendant’s culpability at trial. One fair trial, and the tools of forensic science must be sharpened
approach might be to introduce ‘standardized documents’ or to work for the protection of such rights, not designed to
‘primers’ which would have the benefit of facilitating the work against it.
presentation of basic science in an accessible format. These There is no disagreement that forensic science is a main-
primers, restricted to branches of forensic science for which stay in the effective delivery of a fair and equitable justice
there existed a consensus amongst scientists, would in the system and no disputing its importance in the resolution of
opinion of the Lord Chief Justice ‘assist juries in under- legal dispute. Yet, the relationship between science and the
standing the concepts underpinning the issues in their case’ law can at best be described as a firmly rooted confronta-
( p. 13). One might extrapolate that the absence of a primer tional symbiotic tolerance. One of the first documented
for a particular discipline might be a stark indicator of the clashes occurred when Galileo promulgated to a highly
value of that evidence type for the legal teams and the triers charged and hostile court that, in his opinion, ‘careful labora-
of fact. tory experiments could reveal universal truths’. He was not
This, however, still exposes the need for forensic science to well received.
be honest with itself and reflect on the fundamental deficiencies We must learn from the past, disrupt our thinking,
within its ranks. The scientific community needs to address strengthen the community and change our culture. This
these to merit judicial confidence or else be brave enough and means working together towards a resolution of the scientific
have sufficient professional conscience to abandon the evidence deficiencies within existing forensic evidence while providing
types that do not meet the required judicial reliability before a firm basis for new innovative technologies entering into the
they are forced to do so in open court. Furthermore, the onus forensic science ecosystem. At the same time, we need to
is on the forensic science and judicial community to work in ensure that the law enforcement and investigative communities
tandem to ensure that the introduction of new technologies, once again recognize and use forensic science to its full poten-
essential to keep pace with the developing world, are managed tial as a holistic problem-solving tool (for example, through the
in such a way as to ensure judicial confidence from the outset. use of the case assessment and interpretation methodology
Finally, the challenge is also laid before the forensic science [47–50]). That such a methodology is embedded within a
and law enforcement communities to allow the scientists to framework which allows for an understanding of the
contribution that a specific evidence type could meaningfully Acknowledgement. Anuta Musat and Tasneem Sadiq provided invaluable 6
deliver in terms of sub-source, source, activity or offence- research assistance contributing to the legal research for this paper.

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level propositions for a given set of case specific circumstances
rather than restricting it to a siloed one-dimensional reac-
tive process becomes obvious. A contextualized means of Endnotes
evaluative reporting of forensic science data pertinent to a 1
Reference to forensic science or the forensic sciences relates of course
particular case but held in the context of that case where not to one single field but to a broad range of disciplines for which
alternative propositions can be attended to and challenged cor- there is a forensic application, each with its own associated practices
rectly, works to fulfil this problem-solving potential. Such an and set of technologies. Consequently, ‘there is a wide variability
across forensic science disciplines with regard to techniques, method-
approach has been suggested by the Association of Forensic ologies, reliability, types and number of potential errors, research,
Science Providers [32] among others. general acceptability, and published material’ [11, pp. 6– 7].
2
The demands currently confronting forensic science are [2004] EWCA Crim 1, [2004] 1 WLR 2607.

Phil. Trans. R. Soc. B 370: 20150062

3
recognized as a broader, global challenge, arising from struc- [2002] EWCA Crim 1903, [2005] 1 Cr App R 12.
4
[2003] EWCA Crim 1020, [2003] 2 FCR 447.
tural and operational shortcomings common across a number 5
[2005] EWCA Crim 1980, [2006] 1 Cr App R 5.
of jurisdictions (for example, in the UK, USA [11], The Neth- 6
Daubert v Merrell Dow Pharm., Inc. [1993] 509 U.S. 579, 596– 597.
erlands [51] and Australia), as well as from contemporary 7
Frye v. United States. 293 F. 1013 (D.C Cir.1923).
8
manifestations of criminality, including terrorist acts [52]. R. v Reed Reed & Garmson [2010] 1 Cr App R 23, [2010] Crim LR 716,
This calls for us to respond to transitional challenges, in [2010] 1 Cr App Rep 23, [2009] EWCA Crim 2698.
9
addition to supporting a more far reaching paradigm shift R. v Atkins Atkins [2009] EWCA Crim 1876, [2010] 1 Cr App Rep 8,
[2010] Crim LR 141.
for forensic science. 10
R. v T [2010] EWCA Crim 2439.
There is no doubt that forensic science is in crisis, and it 11
R. v Otway [2011] EWCA Crim 3.
12
currently faces its most uncertain future. However, our R. v Dlugosz, Pickering, MDS [2013] 1 Cr App R 32, [2013] EWCA
future is in our own hands and what we, as a criminal justice Crim 2, [2013] 1 Cr App Rep 32.
13
community, choose to do next will be our legacy. R. v Thomas [2011] EWCA Crim 1295.
14
R. v Smith [2011] EWCA Crim 1296, [2011] 2 Cr App Rep 16, [2011]
2 Cr App R 16.
Competing interests. We declare we have no competing interests. 15
R. v Kwaik [2013] EWCA Crim 2397.
16
Funding. Posts of Anuta Musat and Tasneem Sadiq were supported As in the case of comparative analyses where an ungrounded quan-
under the University of Essex Frontrunner Plus scheme and the tifiable level of support is presented.
17
Undergraduate Research Opportunity Programme. R v Tang [2006] 65 NSWLR 681.

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