Abstract
The introduction of biological evidence in judicial settings raises particular modes of entanglement between professional cultures and perceptions of the probative value of evidence. When DNA evidence reaches court, it also challenges the perceived margins of critical assessment of the work and understandings of previous links in the chain of custody, like the criminal police, forensic experts and the public prosecution services. Given the apparent neutrality of judicial institutions, how do Portuguese judges perceive and value biological evidence? And how do judges see their articulation with other operators of the criminal justice system? An analysis of 14 interviews carried out with Portuguese judges reveals the challenges in the evaluation of biological evidence, which is characterised as a ‘safe haven’, grounded as it is on an indisputable scientific authority. The suggestion of the presence of a cultural rift emerges, which, taken with the work of other epistemic cultures, leads to biological evidence being seen as ‘ready-made evidence’ on its arrival in court, thus limiting the role of judges in its appraisal.
Introduction
From the end of the 20th century up to the present day, we have witnessed the development and expansion in the uses of science and technology in many areas of social life and also in the criminal justice system. The use of DNA technologies is one of them.
Although the introduction of DNA technologies for forensic purposes has carried an aura of infallibility and truth-making (Jasanoff, 2006), 1 differences between the so-called adversarial and inquisitorial types of justice systems and the respective roles of the judicial actors can be highlighted.
In adversarial justice systems, the disputing parties present the evidence to a lay jury, and the role of the judge can be regarded as somewhat passive in the assessment of evidence to determine matters of fact (Roberts, 2013; Shapiro, 2000). The contentious nature of proceedings favours attempts to deconstruct the credibility of evidence, with the chance that errors in the chain of custody or interpretation will surface during a trial (Lynch, 1998; Lynch and Jasanoff, 1998). In Portugal, criminal proceedings operate under the inquisitorial principle, where the judge plays an active role as a ‘fact finder’. The evidence is presented during trial and the judge ponders each piece in order to establish facts as proven or not proven, often assigning causal relations between evidence and facts in the production of verdicts. Since there are two official laboratories allowed to produce forensic evidence in Portugal, they exercise the role of gatekeeping concerning the quality of the evidence, leaving little room for courtroom controversy. While ‘each piece of forensic evidence is a combination of different epistemologies of which it has been a part during its social life’ (Kruse, 2016: 153), it falls to the judge, as the ‘expert of experts’ (Gill, 2016), to consider all the evidence which is collected at the crime scene and conveyed to the courtroom. The court thus emerges as a ‘centre of calculation’ (Latour, 1987), 2 where all the evidence and the work of the varied epistemic cultures converge (Knorr-Cetina, 1999). 3 Criminal evidence, and particularly biological evidence, is produced through the intervention of several social and professional cultures, like police forces, crime scene officers, laboratory technicians, forensic experts, public prosecutors (PP) and judges, each with their distinct way of acquiring, interpreting and conveying information. The trial sessions are designed to (re)produce all information gathered about a case in order to make proof before the judge who will attempt to fit together the pieces of the puzzle which have been brought to court (Kruse, 2016).
If in adversarial systems, DNA evidence would likely be subjected to interpretation protocols (Lawless and Williams, 2010), the documentary aspects of inquisitorial investigation often reflect the articulation of professional knowledge with social and personal idiosyncrasies and subjective assessments 4 which are carried forward from first attendants at crime scenes, criminal investigators and prosecutors (Costa and Santos, 2019; Kruse, 2012).
While there is notable scientific output surrounding the role of DNA technologies in criminal justice systems, predominantly in the UK and the USA (Cole and Lynch, 2010; Costa, 2017; Derksen, 2003; Jasanoff, 1995; Lawless, 2016; Lynch et al., 2008; Machado and Costa, 2013; McCartney, 2006; Santos, 2014; Williams and Johnson, 2008), there remain gaps in scientific knowledge regarding how these technologies are perceived by judges and their role in the effectiveness of justice. This is particularly relevant for an inquisitorial type of criminal justice system as is the case of Portugal.
Therefore, it is important to understand how the judge perceives the work produced by other epistemic cultures, different ways of knowing and acquiring knowledge from the standpoint of each culture's professional repertoire of experience and understanding.
The police are the first component in the chain of custody of evidence. Their performance is reflected in their particular arena but also in the different social and technical arenas (Wyatt, 2014) that make up the chain of custody of the evidence. They communicate between different epistemic cultures, generating and circulating knowledge (Costa, 2017; Costa and Santos, 2019; Knorr-Cetina, 1999).
The PP could be described as a gateway between the Criminal Police Bodies (CPBs) 5 and the courts. Their particular way of acquiring and producing knowledge implies not only legal expertise, but also a professional sensitivity to suggest and develop useful investigative activities. Based on the account built by the police, PP, who have the monopoly on criminal investigation in Portugal (Law n°. 49/2008, 2008, article 16), compile the legal narrative that will shape an indictment. The PP bears the burden of proof, being assisted by CPB in the conduction of criminal investigations. However, according to Costa and Santos (2019) an ‘office culture’ can be seen in their work, characterised by a passive attitude towards the construction of forensic evidence. The first narratives constructed by the CPBs and by the PP, grounded on the infallibility of DNA, can lead to an uncritical acceptance of the evidence (Costa and Santos, 2019; Santos, 2021).
Experts hold a pivotal position between the court and the work of the police and the Public Prosecutor's Office. 6 Responsibility for transforming material traces into legal meaning lies with experts in the laboratory and their role in court is to explain the evidence production process (Kruse, 2013). Their task is to produce reports based on the questions from the police and the PP about the traces collected at crime scenes and/or suspects, infusing scientific credibility into the investigation's interpretations. Biological evidence that enters the laboratory must therefore be made understandable to an audience of non-specialists (Amorim, 2012; Roberts, 2013) – the judges – so that they can appraise it. However, an expert will tend to avoid explaining how or why a given biological trace was found at a crime scene, or what that may imply in terms of criminal offence. They adopt attitudes such as repeating discursive formulas from forensic reports, making general statements about laboratory procedures or plainly describing the methodological process (Kruse, 2016). In this sense, technicians and forensic experts can assume responsibility for the traces from the moment they enter the door of the laboratory and also for the reports they produce, but not for the work done previously by other actors, or interpretation in the courtroom, which reveals a form of ‘boundary work’ (Gieryn, 1983; Lawless, 2012) around the distribution of responsibilities and attributions of each epistemic culture (Kruse, 2016). Mainly, experts avoid breaches in this ‘shield of neutrality’ by circumventing answers that can be understood by the courts as interpreting the evidence in the context of a given case (Costa and Santos, 2019). This positioning can be regarded as in Amorim’s view (2012: 267): a ‘comfortable opacity’ or a ‘bubble culture’ (Costa and Santos, 2019: 2).
In this sense, communication between the different epistemic cultures assumes great relevance. Roberts (2013: 49) considers that ‘successful forensic science presupposes effective communication between criminal justice professionals at each stage of criminal proceedings’. When this does not come about, it can create distance between different epistemic cultures and impair communication, causing what he calls a ‘cultural rift’ (Roberts, 2013: 53). 7 This can be seen as the ability to alienate scientific understanding, forensic science and expert evidence, or not. Communication allows knowledge of the other's world and, simultaneously, it allows this information to be placed in a context that the other manages to grasp.
Therefore, in an inquisitorial framework where institutions operate under mutually presumed neutrality in search for the ‘truth’ of the facts, how do judges perceive biological evidence and its contribution for the criminal inquiry?
The main purpose of this paper is to look at DNA technology through the eyes of Portuguese judges in order to understand the social representations surrounding biological evidence held by those who have judicial decision-making power. It is important to assess its value (Appadurai, 1986) 8 as an aid to justice and how using it in court contributes to the delivery of justice in Portugal.
Methodology
The analysed empirical material draws from the research project ‘DNA technology in the Portuguese criminal justice system: an analysis of judicial cases and the judges’ perspectives’. Fourteen semi-structured interviews were carried out with Portuguese judges in 2017 (three with judges of the Supreme Court of Justice and eleven with trial court judges). The interviews contained three main themes: DNA evidence and police work, DNA databases and the Prüm system (Costa, 2019). Since the focus of this paper is the first group, the questions that judges were invited to answer were: (1) What is the importance of documental, testimonial and DNA evidence in the judicial decisions?; (2) How do judges evaluate the work developed by police forces at the crime scene and the collection of biological traces?; (3) How do they evaluate the work developed by prosecutors regarding the articulation with police forces who attend the crime scene?; (4) What type of relationship and communication is established between laboratories and the courtroom?; and (5) What is the main contribution DNA evidence brings to justice?
One limitation of the study concerns the low number of interviews made. Requests were sent by email to courts throughout the country, followed by snowball sampling, but there was a very low response rate. One explanation may be due to a reluctance and resistance to talking about aspects of justice, and/or matters with which they are less familiar. However, this was the first study to involve Portuguese judges’ views regarding the use of DNA technology.
Before the interview, the participants signed a written informed consent and also agreed to audio recording of the interviews. Only one of the participants did not permit the recording. The recordings were transcribed verbatim, in a total of more than nine hours of conversation with judges from different parts of the country (urban and rural areas, mainly from the north and centre of the country). Excerpts from the interviews were coded in order to safeguard participants’ anonymity, by using the letter ‘J’, followed by a number. Although three interviews were made with Supreme Court judges, they are not identified as such in order to protect their privacy since they are part of a very restricted group. Besides, the smaller number of interviews made with this specific group of judges does not allow a comparison between the narratives of judges and Supreme Court judges. A qualitative methodology was used and content analysis of the interviews was based on the principles of grounded theory (Charmaz, 2006; Clarke, 2005) in order to analyse the way in which judges evaluate DNA evidence in the ensemble of collected evidence and its perceived impacts on judicial decision-making. Drawing from a constructivist approach, this methodology intends to apprehend social reality through the meanings that participants attribute to their actions, objects and interactions with others (Blumer, 1962). By not departing from an established theoretical framework, grounded theory enables the development of new concepts and theories, through the stimulation of the researcher's creativity (Strauss and Corbin, 1990).
Results and discussion
Biological evidence as a ‘safe haven’
For the judges interviewed, all evidence has to be weighed, since proven factual basis is the coordinated result of all the evidence. However, while it is assumed that all evidence is important, some items may be more important than others, depending on the degree of science behind them: ‘All evidence is important. There is some which lends…greater confidence in that it has scientific principles to back it up’ (J03). I would say it would have an evidential value of 99%. I do not see how it is possible to question DNA, the collection of biological samples. I have never, never seen a decision that excluded the power of biological evidence. I have never come across a single one. Therefore, I believe that its appraisal, its importance, is almost 100%. (J012)
Biological evidence is also seen as highly reliable and more sound, and can offer a degree of confidence that other evidence cannot: ‘I would say that there is a perception that the evidence, when scientifically validated…raises fewer doubts…has added value…lends added confidence…’ (J08). For another judge ‘DNA, as it leads to a scientific judgement, allows us to create a safe haven foundation’ (J02). They also highlight the important aid brought to judicial decisions, making the evidence fairer and easier. ‘I think it allows decisions to be more fair, more fair in the sense of easier proof, you see?…If there is a scientific basis for a decision…there is less risk of not being true’ (J08)
Furthermore, in the judges’ view, there is more biological evidence than other evidence at the crime scene: ‘There are usually more DNA traces present’ (J09). They also believe that if there were DNA collection in all cases, it would make their job easier. For another judge, a DNA contribution in all cases would make it easier to reach a judicial sentence: ‘It is very important evidence, isn’t it? It can contribute in this way if the perpetrator and the proof of the crime can be achieved more easily’ (J07).
Judges also point out that the use of DNA enables surer and faster identification: ‘More certain and more easily. There are investigations in which we had to go round the houses to arrive at the perpetrator of the crime, but with DNA we go straight to the identity of that person’ (J07). Some judges may believe that the fact that traces of a suspect were found at the crime scene means that that individual committed the crime: ‘If that person's identity is extracted from that trace, it is inevitably that person’ (J010). Or, as another judge said: ‘With the lifespan that traces have…and there being no justification for the individual to be there, this demonstrates that…[he/she] who committed the act’ (J09).
They also believe that DNA evidence has added weight when compared to other evidence like eyewitness testimony, fingerprints, ballistics, etc. When conjugated with different types of evidence, testimonial evidence tends to be regarded as more subjective and difficult to assess accurately. DNA evidence can be used by judges to corroborate witness statements and other type of evidence. DNA evidence ‘is less likely to be influenced than testimonial [evidence]…Witnesses are more fallible’ (J09). Besides, they also point out that witnesses are less and less likely to collaborate in helping deliver justice: ‘…witnesses are less and less collaborative…People talk a lot on television and…on the bus, but when they’re in a courtroom they talk less and less’ (J09). DNA evidence also seems to be a means of checking the veracity of testimonial evidence: ‘DNA plays a fundamental role as the evidence that allows credibility to be given to a witness’ (J05).
This leads some judges to believe that, although they have to ponder all the evidence, expert evidence has an added valued: ‘Among the types of evidence, when making my appraisal, I turn first to assessment of documented expert evidence, and only then do I combine it with testimonial evidence…’ (J012).
Despite all evidence having to be weighted by the judges, its value will vary according to their perceived epistemic weight, objectivity and complexity. The comparison between testimonial and biological evidence suggests a differential credibility. Biological evidence is seen to deliver facts, as it is seen to be immune to human intervention, whereas testimonial evidence seems to produce uncertainty, through witnesses’ lies or memory lapses (Kruse, 2016). As such, DNA evidence grew a reputation as the type of evidence that does not lie (Lynch et al., 2008), while witnesses are more fallible. DNA evidence thus provides guarantees that other evidence does not, with DNA being seen as the main evidence, and the other evidence in a supporting role (Kruse, 2016). Thus, DNA evidence can be used to corroborate testimonial and other evidence, with DNA being seen as a way of giving credibility to other evidence.
The greater confidence placed in biological evidence seems to be an element of certainty, since for the judges it delivers what it promises. Therefore, biological evidence is seen as a ‘safe haven’ as it is scientifically validated. It is the passage of biological evidence through the laboratory (Latour, 1987) that infuses biological evidence with an aura of objectivity and credibility that other types of evidence may not have. 9
Thus, placing this trust in the power of DNA, they are giving ‘(…) a scientific coating to what basically is human judgement about the belief in something’ (Lawless and Williams, 2010). Reading into the accounts given by the judges, DNA appears as a guardian of judicial decisions (Barzilai-Nahon, 2008), by which judges can support their decision on the available expert reports.
The complexity of interpretation
While a majority of the interviewed judges assume that the biological evidence is irrefutable, three of the interviewees, albeit recognising the potential of DNA evidence, are more cautious about its value: ‘This evidence is less fallible, but it does not work miracles’ (J08). One of the interviewees considers that ‘It depends greatly on the context and corroboration of this type of evidence with other evidence…’ (J010). And they continue: ‘…DNA evidence is much more effective… It makes the evidence system more effective and more rigorous, but not necessarily infallible…’ (J010). In addition, it must be combined with other evidence and contextualised: ‘This evidence must be placed in context…If it has no context…, despite having all this expert value, it cannot lead to a conviction’ (J01).
Although it is less fallible than other types of evidence (documental, testimonial, fingerprinting, and so on), it should not be weighed in isolation: ‘DNA evidence is not proof on its own…It merely proves they [perpetrators] were there for a time; it does not prove they [perpetrators] committed the crime’ (J02).
This complexity involves not only associating the trace with the perpetrator, but also paying attention to evidence collection and maintaining the procedures of the chain of custody that allow it to be fully interpreted: Perhaps other precautions need to be taken and actors in the judicial system should be aware of the potential dangers of DNA evidence, either in terms of collection and custody, or later in terms of the appraisal of the evidence…sometimes, DNA can tell us a lot, but it can also tell us nothing. But that is a question for after awareness is raised. (J010)
The reference made in the last part of the excerpt to ‘after awareness is raised’ or even ‘DNA can tell us a lot, but it can also tell us nothing’ refers to a critical analysis of this issue, in the sense that not all actors in the judicial system are able to make this distinction and interpret the relevance of a certain biological trace at a crime scene. In the words of this judge (J010), the importance provided by biological traces for justice is highlighted, but also an awareness of the need to take into account the way the traces were collected, stored and transported, as well as the potentially dangerous subjectivities (Daston, 1992; Daston and Galison, 1992; Kruse, 2012, 2016) inherent in the interpretation of biological evidence.
DNA evidence can be based on different methodologies and source materials, each carrying particular dilemmas of interpretation (Lawless, 2012). It has to be considered against all the other evidence and also depends on the circumstances of the crime and the activity that can be inferred from the trace (Lawless and Williams, 2010). The fact that there are DNA traces at the scene of the crime does not in itself prove that a particular individual committed the crime (Amorim, 2012; Costa, 2017; Gill, 2016). The relationship between biological traces at a crime scene and imputing the perpetrator of the crime thus requires a more complex reasoning. The narrative approach to the interpretation of evidence is made more relevant in an inquisitorial context where forensic experts tend to reinforce their boundary of neutrality by avoiding contextual information that could lead to bias (Dror et al., 2006) or by presenting results in terms which could influence judicial interpretation (Costa and Santos, 2019; Santos, 2014).
Although forensic experts’ work is crucial, the trace does not speak for itself (Daemmrich, 1998), as this depends on the quality of the work carried out before arriving at the laboratory. Biological evidence requires a more complex reasoning than other types of evidence. The weight of DNA evidence is intrinsically associated with the story of which it is part (Lynch et al., 2008). It is up to the police and the Public Prosecutor (PP) to investigate, but it falls to the judge to try to answer the question of whether there was a crime or not, and who committed it. For such, the articulation of all the epistemic cultures is crucial.
Judges’ perceptions of the work of different epistemic cultures
It was also important to understand how judges evaluate the work developed by police forces, prosecutors, the articulations made between them, and how the communication established between them flows and is operationalised.
The police: tacit confidence
Overall, it can be seen that the judges hold the work carried out by the police in positive regard, with comments noting the growing development and specialisation in police work. For some, ‘The police are making an effort to provide specialised investigators who go to the crime scene…’ (J01). Others emphasise the technical abilities of the police: ‘Now they have teams that can work on the level of securing…the [crime] scene…’ (J05). Another judge also states that ‘Efficiency and professionalism have been sought and achieved and they [police] are no longer mere apprentices or amateurs…’ (J03). Or, as another judge worded it: ‘…you will no longer see an inspector smoking there or a policeman who is smoking and drops ash and contaminates the entire crime scene’ (J01).
However, their discourse also reveals a perception that not only there are different practices between different individuals – ‘it will depend on the person who is performing their duties at that exact moment’ (J07) – but also differences can also be noted in the way in which the different CPBs operate. According to the judges, the Judiciary Police (PJ) are better prepared and equipped to take a different approach in the way they present evidence: ‘Criminal Police personnel [PJ] have technical means at their disposal that are not available to the Public Security Police, not least because the catalogue of crimes they investigate is different’ (J03). Another difference is also recognised in the level of qualifications and training of the different Portuguese CPBs. The Criminal Police [PJ] have a different kind of training, you see? And this can be seen in the way their statements are drafted and the presentation of evidence, but they also have…means that the GNR almost certainly do not have. (J012)
They also express the perceived stratification between serious and volume crime, as well as the uneven attribution of resources to investigate them: ‘…I think the PSP and the GNR…obviously lack the means … and they have to intervene on a scale which may be much greater than the Criminal Police [PJ]…’ (J011).
One of the judges compares the training given to the police and the training given to judges and he/she believes there is an imbalance: ‘… as regards the police [PJ], they have much better training than we [judges] have. I think this training should be the same…’ (J05). This interviewee also highlighted the limitations in the training for judges in this area, namely laboratory training to better understand the evidence that they have to assess in court: ‘People like me, who are deciding this, should necessarily have training. And not just one half-morning session…’ (J05).
In recognition of the progress in the work carried out over the years by the CPBs, at the same time the judges interviewed assume a certain distance of the court regarding police work: ‘When it comes to the trial, the case is already prepared by the police, by the Public Prosecutor's Office, and sometimes we can see that something else could possibly have been done…’ (J08). However, recognising the impossibility to assess the evidence in earlier stages, at the same time, judges assume their confidence in police work. ‘Regarding sample collection, I think the court trusts…those who handle the collected material and all those things. It seems to me that the evidence collection and custody procedure is rarely called into question’ (J010).
The emphasis on the progress in police work seems that it has not always been the case. By noting this evolution in their work, they are simultaneously showing the construction and negotiation of the professional identity of the police (Snow and Anderson, 1987). Interviewed judges notice the changes in the traditional role of the police in criminal investigations, which had previously been based on the interrogations of witnesses and suspects, to an increasing forensic awareness in crime scenes (Beauregard and Bouchard, 2010). This contrasts with the role of the police in the technological age, based on the collection of biological traces, equipped as they are with other means and expertise.
By perceiving inequalities in resources and practices between different CPBs and between those police officers whose work is better and those whose work is worse, judges seem to highlight that differences in police practices, although nowadays grounded on forensic science and technological devices, are much more sociological than technological because of an exposure to the influence of contextual social factors (Kruse, 2016). Moreover, due to a lack of sufficient knowledge and training to question biological evidence, they may be forced into accepting tacitly not only the police work but also the evidence as it arrives in court. Even acknowledging that ‘something else could possibly have been done’, they are not able to redo the evidence. Consequently, they are limited to accepting and validating pre-made evidence, based on a ‘tacit confidence’ in the work of the police, but also in the work done by the PP, as we will discuss below.
Public Prosecutor’s Office: ‘ready-made evidence’
While on the one hand the interviewees make a positive assessment of police work in general, despite some limitations identified above, they take a more critical stance with regard to the PP, particularly relating to the liaison between the PP and the CPBs, and how effectively the criminal investigation is directed.
10
‘There have been advances with the police; with the Public Prosecutor's Office, there is now a greater problem of liaison with police authorities’ (J03). The idea of distance between the PP and CPBs and of discretionary practices emerges from the judges’ discourse, highlighting that some prosecutors liaise better with the police than others. There are…public prosecutors who do not confer with police officers…I find…a public prosecutor who does not speak to police officers to be very strange, don’t you think? Others liaise very well…they talk about and direct police activity. (J07)
The judges’ accounts also point towards the PP abdicating responsibility when conducting the investigation.
…the Public Prosecutor's Office has abdicated the effective direction of the investigation in a more general way than is suitable or correct. …often…[he/she] had no direct intervention in terms of guiding or asking for due diligence throughout the investigation, or doing anything in the investigation delegated to the police. And so, the final report arrives, and based on that the Public Prosecutor's Office brings charges or closes the case, or does whatever they want by way of ending the investigation. (J011)
And some of them reveal a more passive attitude then others.
there are different types of Public Prosecutors: those who leave the office, not necessarily physically, but they become more involved with and part of the investigation, and the public prosecutors who, shall we say, delegate more, with the police doing the work. (J08)
This idea of a passive work is reinforced by another judge: ‘[the Police] send them the case and then they [the Public Prosecutor] want it back finished’ (J05). Because otherwise the evidence is already made. In other words, with evidence which is made, it is easier to say: ‘The evidence is here, A2.3. Now we are going to put it together, this one, then this one, and it's done…’ Our work lies precisely in assessing the acquisition of evidence. (J05)
Naturally, judges only adjudicate on cases that reach the trial stage. Cases that are dismissed by the PP for not having sufficiently robust evidence do not reach court. In other words, even if the liaison between the police and the PP may not always be optimal, when the case reaches the hands of the PP, it may lead to the case being closed because the evidence found was insufficient and not robust enough to take it to trial.
Obviously…cases in which police work is weak may not even come to trial, because the public prosecutor stops them, right? When it comes to the trial, we already have a plethora of evidence, which the police have normally had an important role in collecting; as a rule, this is well done, because there is enough evidence to bring someone to trial. (J09)
Thus, while the PP is responsible for ‘filtering’ the investigation, the judge's task is to make a decision on the evidence presented in court. The critical stance towards the PP's work rests on their passive attitude. In judges’ accounts, not only are police officers not consulted with, but they are given autonomy to carry out investigative tasks, with the PP limited to managing from a distance. This attitude may be based on what Costa and Santos (2019) called an ‘office culture’, 11 meaning that investigative procedures fall mostly within the purview of the police, and PPs do not fulfil their role as the driver of criminal inquiry.
The differences found in terms of the technical resources available to the different CPBs, as well as the ‘office culture’ (Costa and Santos, 2019) and the degree of passivity of the PP in conducting the investigation, are pointed to as potential obstacles to judges’ decision-making. With most investigative tasks and decisions delegated to CPBs, who return a ‘finished’ inquiry to the PP, the consequence of the perception of the judges interviewed regarding the liaison between the police and the PP is that the evidence that arrives to court is already prepared by the CPBs and the PP, ultimately, giving little margin to judges to question the evidence that arrives to their hands. In this sense, if there are mistakes, malpractice or erroneous interpretation of traces by the CPBs, it may all end up being legitimised by the PP, as they have little or no direct knowledge of the cases (Costa and Santos, 2019). 12 Moreover, as judges do not have training and did not follow the case in its prior phases, they have no responsibility for what was done earlier (by the CPBs and/or PP). Thus, when they are deliberating on a case, they do not think about the work done by the police.
Rather than appraising the evidence, judges end up having to conform to what and how it is presented to them. DNA can thus be perceived as ‘ready-made evidence’, because its value cannot be challenged unless the judge has grounds for the disagreement. 13 Even if, as some accounts point out, it is realised that ‘something more could have been done’, when the evidence reaches court, it is almost impossible to redo the evidence, as ‘forensic evidence accumulates a pretrial biography’ (Kruse, 2016: 33). In this sense, it is up to judges to make a decision based on what they are given.
The notion of ‘ready-made evidence’ denotes the different epistemic cultures at play in the construction of DNA evidence, which shaped by professional repertoires and institutional interests. What is presented to judges as ‘ready-made evidence’ can be the result of an instrumental use of DNA by the police and by the PP (Santos, 2014), conferring scientific authority to a previously constructed narrative, according to their sociocultural understandings of a crime (Costa and Santos, 2019).
Experts: (un)packing the ‘black box’
Faced with the work developed by the CPBs and by the PP, the experts’ work can help the judge in the appraisal of the evidence.
The presentation of an expert report can give greater credibility and security. ‘The value of expert evidence is very important…because it builds value for the evidence which is very difficult for other parties to contradict later’ (J05). The scientific report allows the responsibility of the judicial decision to be transferred to the report produced by experts: ‘Our work is increasingly difficult…to have a scientific basis gives another level of consistency and even saves us work, you see?’ (J09).
If some judges reveal some enthusiasm for being able to support their (legal) decision in the expert report, others feel disappointed when experts do not open the ‘black box’ (Latour, 1987) to provide comprehensive answers in the expert report to support the judge's decision. The fact that biological evidence is received from within a ‘black box’ can pose difficulties in the appraisal of the evidence designated to them. We often have expert evidence that really isn’t exactly a great help. It says: ‘I suppose, we could say this, but it might also be the opposite. Anyway, we can only go this far and from now on it's down to assumptions or probabilities.’ The greater the degree of scientific certainty, and demonstrated scientifically, the greater the certainty for those who judge. (J08)
Furthermore, while documentary or testimonial evidence is subject to the judge's consideration, DNA evidence seems to impose itself on the judge. ‘Expert evidence, in principle, is evidence that is imposed on the judge, unless the judge has sufficient scientific knowledge to break down that evidence’ (J010). 14
While the judges’ accounts indicate a degree of reverence for DNA evidence, seen as evidence that produces less doubt, that reverence may also be associated with the fact that the judges do not have enough knowledge to be able to contest it. ‘Expert evidence is removed from the judge's free conviction, so it is appreciated, it has weight, you see? Expert opinion is not ours to hold, so we have to get to the conclusion, colloquially speaking …’ (J07).
Acknowledging their own limitations in relation to the expertise presented in court, judges often end up having to accept the conclusions of the expert report. The court must accept it as it stands, unless any of the grounds on which that expertise is based are considered to be incorrect…or there is an expert opinion of equal weight that could call that result into question. But, if this does not transpire, the court necessarily has to fully accept the conclusions derived from this expertise. (J05)
According to Amorim (2012: 267), DNA cannot be treated as a ‘black box’. Indeed, non-specialists must be enabled to understand the results by means of presentation and discussion. However, forensic experts assume responsibility for the traces from the moment they enter the laboratory and also for the reports they produce, leaving the interpretation for the judge (Gieryn, 1983; Lawless, 2012). This ‘comfortable opacity’ (Amorim, 2012) or ‘bubble culture’ (Costa and Santos, 2019: 2), once again, leads judges to have to accept the ‘ready-made evidence’ that arrives to court. Not having sufficient knowledge to contradict laboratorial procedures or the scientific report produced by the experts, judges have to conform to the scientific report, seeming to judge without judging.
Communication – ‘cultural rift’
In view of the difficulties of understanding reports and the lack of training in understanding biological evidence which judges experience, it is important to understand what strategies they use to deal with it and how they improve (or not) communication between court and laboratory.
From the interviews, different practices can be seen. Some interviewees base their communication on bureaucratic formalism. One judge says that ‘There is no such thing as a close relationship; it is institutional’ (J08). Others point to the relationship based on records and written communication: ‘The relationship is mainly on paper…everything is done in writing. Later we sometimes have clarifications from experts in the hearing. So, all possible collaboration is given’ (J06).
While some judges see formality as the guide for communicating with the laboratory and tend to accept expert written conclusions, others take a more informal stance, highlighting the advantages associated with informal contact: ‘My experience is that everything goes much faster and is much better when we pick up the phone and talk to people…’ (J07). Among the informal means of contact, special mention is made of phone calls, allowing any possible doubts and frictions in the appraisal and interpretation of expert reports to be removed. Formal contacts tend to constitute a barrier to communication, while informal contacts tend to remove this barrier, leading to greater trust and mutual understanding between the different actors (Roberts, 2013). Informality thus emerges as a means for translating the most hermetic language produced in the laboratory into language, which is understandable for the judge. ‘Translational work’ 15 thus enables coordinated communication on concrete aspects of forensic evidence. Therefore, as judges may lack the knowledge to interpret expert reports, translational work allows informal contact to function as a way of making the written report coincide with the reading of what is written in it (Galison, 1997).
Hence, either informal contact between judges and experts, or, as mentioned above, the presence of the expert in court, enables the judge to better clarify the reports produced and bridge the gap between epistemic cultures.
Conclusion
The interviews with judges reveal a judicial, cultural and epistemic scenario where DNA evidence is seen to produce a high degree of credibility and epistemic authority. This may constrain the defence in its chances to contest the production of evidence and leave the judge with a narrow margin for interpretation of the facts. On the one hand, given the perceived epistemic authority of DNA evidence, judges can view DNA evidence as a sort of convenient ‘safe haven’ that appears free from the subjectivities associated with other types of evidence. On the other hand, judges can be presented with ‘ready-made evidence’ which they may not have sufficient scientific knowledge to question its production or challenge its interpretation.
As such, each epistemic culture creates and warrants its own knowledge, shaping institutional neutrality into ‘cultural rifts’ (Roberts, 2013) that tend to affect articulation and communication within the criminal justice system and, crucially, an unassailable aura of infallibility that DNA evidence seems to bring to the justice system.
The judges’ expectations regarding the work of other epistemic cultures may reveal their powerlessness to take a step back in the case, and the notion of irreversibility looms in the chain of custody of evidence (Robertson and Roux, 2010), and that the evidence that arrives in court is ‘ready-made’.
This study sheds light on a ‘cultural rift’ (Roberts, 2013) between the world of science and the world of law and indicates that greater liaison and better communication is required between different epistemic cultures (Costa and Santos, 2019). The data presented here are an example of imperfect translational work (Kruse, 2016). As a previous study has already shown (Costa and Santos, 2019), the PP needs to be more proactive and liaise better with both police and judges. In order for the system to become more effective and biological evidence to contribute to justice, there is an urgent need to train judges to make good use of technology in their service. To this end, experts will have to give up part of the ‘bubble culture’ (Costa and Santos, 2019) in which they operate. This will allow for greater caution regarding the absolute value of scientific evidence and a just measure of the use of biological evidence. Finally, greater investment in liaison and communication between the different actors may allow greater knowledge of the value of biological evidence to justice, making it more effective. While this does not come to pass, ‘The temptation to usurp the judicial power and replace it by authoritarian ‘science’ still lurks’ (Amorim, 2012: 267).
Footnotes
Acknowledgements
I would like to thank all the judges who agreed to take part in this study and their enormous generosity in sharing their personal views and professional practices.
I would like to thank Filipe Santos for his comments and suggestions on earlier drafts.
Funding
This research was co-financed by the Foundation for Science and Technology and with European funds (COMPETE and POCH – European Social Fund) under the scope of the Pluriannual Funding of I&D Unit (UIDP/50012/2020), the post-doctoral scholarship SFRH/BPD/108667/2015, and the individual contract DL57/2016/CP1341/CT0004.
Declaration of conflicting interests
The author does not have any competing interests in the research detailed in the manuscript.
