Introducing Forensic and Criminal Investigation

SAGE Publications

Jane Monckton-Smith, Tony Adams, Adam Hart, Julia Webb

• Publisher: SAGE Publications Ltd
• Year: 2013
• Print ISBN: 9780857027511
• eBook ISBN: 9781446290699
• Edition: 1
• Topic: Law
• Subtopic: Criminology
• Index: Law

This book is a lucid and practical guide to understanding the core skills and issues involved in the criminal investigation process.

Drawing on multiple disciplines and perspectives, the book promotes a critical awareness and practical comprehension of the intersections between criminology, criminal investigation and forensic science, and uses active learning strategies to help students build their knowledge.

The book is organised around the three key strategic phases in a criminal investigation:

- Instigation and Initial Response

- The Investigation

- Case Management

Each strategic phase of the investigative process is carefully explained and examined. Alongside this practical approach, theoretical perspectives and academic research are laid bare for students.

Introducing Forensic and Criminal Investigation is essential reading for students in criminology, criminal justice, policing, forensic psychology and related courses.

CHAPTER 1

INTRODUCTION

On 17 May 2012 Sam Hallam’s murder conviction was quashed by the Court of Appeal. The conviction was declared unsafe. Mr Hallam had served seven years in prison for the murder of Essayas Kassahun in London in 2005, but the evidence presented in appeal from the re-investigation showed serious flaws in the original investigation, including unreliable evidence of identification, a failure to follow all leads, and a failure to disclose all evidence. Even more concerning is the case of Carlos de Luna, a Latino man convicted of murder and put to death in Texas, USA, in 1989. On 14 May 2012 a report into the investigation was published by Columbia Law School after a six-year review. The report declared that Carlos de Luna was an innocent man, the victim of a shoddy police investigation which failed to collect forensic samples and relied almost entirely on dubious eye-witness accounts (Liebman et al. 2012). The repercussions of a poor criminal investigation can be grave indeed. It may be considered that a failed investigation is the result of laziness or incompetence on the part of investigators, and this proximal causation may often be identified as the problem. However, the process of investigation is far more complex and cannot be assessed as merely a series of common-sense actions which should adhere to an accepted procedure. Far more problematic are the intangible processes which have critical impact on the way an investigation proceeds and the judgements of the investigators.

Crime is a fluid concept which changes over time and space and is especially vulnerable to cultural and societal influence. Police discretion and discrimination have long been identified as impacting on investigative and criminal justice outcomes, and there is a general call for discretion to be limited as it disproportionately and negatively affects minority ethnic groups (Tillyer and Klahm 2011).

Every stage of an investigation is beset with intricate and multifaceted activities which will impact upon the outcomes. There are human problems not only with decision making, testimony and interrogation, for example, but also with perceptions of offences, offenders and victims. Two stark examples of the importance of this are the investigation into the murder of Stephen Lawrence, which was marred by racial discrimination (Macpherson 1999), and the investigation into the murders committed by Peter Sutcliffe, the so-called Yorkshire Ripper, which was plagued with sexual discrimination and discourses of sexual violence (Ward Jouve 1988). It is important, therefore, that we consider more than mere process and examine the cultural, institutional and societal discourses which may direct the way process is observed. In this book we will consider the practical requirements of an investigation as well as the more complex, subtle processes which interweave with the practicalities.

WHAT IS A CRIMINAL INVESTIGATION?

A criminal investigation is a process organised to meet the demands of a system of justice and, often, the more serious the crime, the more complex and demanding the investigation. Criminal investigations will be conducted in every country or jurisdiction across the world in some form or another but the basic objectives are broadly similar. This book focuses on the criminal investigation as it is structured and practised in the UK, the USA, and most countries where an adversarial system of justice is in place. However, many other forms of criminal justice, such as the continental inquisitorial system, will have the same standards and procedures for evidence collection, and will adhere to the basic principles and processes described. In the UK, the Criminal Investigations and Procedures Act 1996, gives a succinct definition of criminal investigation as:

An inquiry to ascertain if an offence has been committed, to identify who is responsible, and to gather admissible evidence to be placed before a judicial authority.

There are three distinct objectives described in this definition. First, to ascertain if an offence has been committed – this will require reference to the statutes and laws in any particular jurisdiction and the defining criteria for an offence. For example, there are over 8,000 acts that are deemed to be against the criminal law in the UK (Stelfox 2009: 8). Second, to identify who committed the crime – this is the part of criminal investigation which is most often portrayed as the key task. Sometimes, however, it is the case that the offender is immediately identifiable, but his or her involvement in the crime must still be proved to the standard required. The third objective is to gather admissible evidence. It is this part of the criminal investigation that is observable in crime scene processing, for example. There must be enough evidence that has been gathered in a manner acceptable to the requirements of criminal justice to prove ‘beyond reasonable doubt’, in the UK, that the suspect committed the crime.

If asked, however, many investigators might define the process as being simply ‘a search for the truth’ and popular ideas of the purpose of investigations are similarly oriented. Indeed, one of the key assumptions in the portrayal of criminal investigation is that there is a search for the truth within the process (Newburn 2007: 3). Yet, research into police homicide investigations found that the process was less about a search for the truth than it was about the construction of a credible narrative to convince a jury to convict; a narrative that will ‘tie people, places, objects and phenomena together in a plausible chronology’ (Innes 2002: 682). This suggests that plausible stories, and durable stereotypes of offenders and motivations, may be important in deciding what the truth is. Hastie (2003) and Hastie et al. (1983) report that the ‘story model’, or assembling evidence into a coherent narrative, is the most widely adopted approach in jury decision making, especially where strong scientific evidence is not available (cited in Devine et al. 2001: 625). So, we should not forget the social, cultural and political context in which all investigationstake place, and this context also includes the priorities of the investigators. Certainly, in policing terms, the successful conclusion to an investigation will include securing a conviction, so this will be a priority, driving the way the investigation is conducted and documented. This priority is reflected in the Crown Prosecution Service (CPS) Full Code Test – a test which drives the decision whether to prosecute or not (see Chapter 12). There are two key stages: the evidential test, and the public interest test. The evidential stage specifically requires a realistic prospect of conviction.

In an adversarial system of justice, the trial is ostensibly a battle between opposing sides the prosecution and the defence. It is a criticism of this form of justice system that the truth is less important than the story or narrative that is told of the crime by each lawyer. Rather than attempt to locate the truth, each lawyer may just attempt to undermine the veracity of the opposing team’s account, or the strength of their evidence. This practice may involve attacking victims and witnesses, and playing to juror prejudices or belief systems (Aldridge and Luchjenbroers 2008).

AIMS OF A CRIMINAL INVESTIGATION

The concept of truth in itself is contested. French philosopher, Michel Foucault (1975), questions whether objective truth actually exists, arguing that subjective potions will create multiple truths dependant on discourses in circulation at any point in time. So, from this perspective, a retrospective analysis of what happened in any criminal event will be influenced by constructions of the witnesses, victims, offenders and the criminal act. Some victims are perceived as more ‘deserving’ than others and this can impact on perceptions of the offence. For example, rape has long been held to be a difficult crime to prosecute. Research has shown that it is perceptions of the victim as more or less deserving or culpable which can have an impact on whether the jury and investigators ‘believe’ that the crime occurred, irrespective of whether it fits the formal definition of the offence (Kelly et al. 2005; Monckton-Smith 2010). Problematic also are the institutional pressures to achieve a conviction. The most plausible narrative, or a failure to search beyond what appears obvious, can have serious repercussions for alleged offenders. For example, in the case of the murder of Rachel Nickell, Colin Stagg was identified as the prime suspect and the investigating team failed to search outside this assumption, leading to him being wrongly convicted (see Case Study 9.1).

If the ultimate aim of an investigation is a successful prosecution, which could, in some cases, inhibit unravelling the truth, then it is clear to see that the process itself needs careful regulation to avoid miscarriages of justice. There is often a separation in perception of those who have their convictions quashed at appeal between those who are considered innocent and those who have been ‘let off on a technicality’ (Walker and Starmer1999). It is sometimesthe case that a person freed by the Appeal Courts will remain the prime suspect in a case. For example, the murder of Wendy Sewell in 1973 saw the conviction of Stephen Downing. It was later declared that his conviction was not safe and he was freed after serving 27 years in prison. Despite this, he remains the prime suspect of the police, and some media reports suggest that he was released on a technicality rather than being innocent of the crime (Daily Mail 2006). It is not for Appeal Courts to consider the guilt or innocence of a defendant, merely to assess the strength of the evidence which convicted them. So it becomes increasingly clear that the concepts of guilt, innocence and truth are less important than the credibility of the narrative and the strength of the evidence available to secure a conviction.

Systems of justice have rules which should make it difficult to wrongly convict. However, Denov and Campbell (2005) report that there are varying estimates for wrongful conviction, suggesting that between 0.5 per cent and 20 per cent of convictions in the United States (equating to between 6,000 and 10,000 cases per year) could be wrongful, and around 6 per cent in the UK.

The police act as the investigators in the majority of crime that is prosecuted in adversarial systems, but with the increasing complexities of large-scale forensic and criminal investigation, and the need for more and more specific expertise, many investigative roles are undertaken by civilian employees and forensic specialists. Forensic science and specialist expertise are required to meet the very high evidential standards and expectations of modern trials. Whatever the type of infraction, dispute or criminal offence, the principles of investigation will remain the same and all that will change is the amount of resources and effort employed. Stelfox states that:

The law defines certain types of behaviour as criminal, it provides a framework of rules and regulations within which investigators must work and it determines the standard of evidence that is required before a prosecution can be brought against someone. (2009: 6)

There is a significant range to criminal offending and the contexts in which it can occur, and of necessity this will affect the specifics of any investigation. For example, identifying the (key) offender in a criminal network of organised crime will be a different process from identifying the offender in a burglary, and will require different types of evidence. There are two key strands which run alongside each other and which we will examine: first, the practicalities and processes of investigation; and second, the cultural, institutional and societal influences which interweave with those practical processes. Both are of equal importance in understanding how we practise criminal investigation. If safe convictions can be achieved merely by observing rules and protocol, one can argue that the investigation is an objective scientific process. However, as discussed, subjectivity cannot be removed from this process and a combination of objective assessment and subjective culturally situated assessments of the crime and actors are inevitable bedfellows, making the investigation potentially equally constituted of science and art.

CRIMINAL INVESTIGATION – SCIENCE OR ART?

Newburn (2007: 4) suggests that criminal investigation has historically been organised in three main ways: first, specific criminal investigation (detective) departments; second, specialist squads formed in response to particular problems, for example a robbery squad; and third, major inquiry teams set up to investigate specific crimes or events. These three organisational frameworks work independently of forensic science in the main, except for their relationship to specialist scenes of crime support. ‘Forensic’ (or ‘forensics’) is a term which relates to any scientific process or technology used in the context of the legal system, and the notion of a ‘forensic investigation’ is often differentiated from a criminal investigation. However, both are investigations for the purpose of prosecution. The rhetoric of ‘forensics’ has been dominated by natural science technologies, especially biomedical technologies, which tend to exclude what Wade refers to as ‘the evolution of detective science’ (2007: 8). Also, media portrayals of talented and intuitive detectives who have a ‘nose’ for detection, or who have some kind of psychological insight into the mind of the criminal, have made great entertainment, but have sidelined the structured and methodical nature of forensic and criminal investigations. Steeden (2010) argues that the word ‘science’ gets in the way of understanding forensics, which is an intuitive and dynamic as well as scientific process. He observes that in terms of criminal justice ‘all bets are off’ in an adversarial system anyway, and that in this context sound methodologies and good practice are as valuable as science. Terms like ‘sound methodologies’ and ‘science’ may imply that investigation can be a sterile and structured activity but this is not exclusively the case. Investigators need to draw upon their inductive as well as deductive reasoning, and the idea that experience in the field is important in turning the forensic evidence into a secure conviction is not without merit. The key difference between inductive and deductive reasoning is largely about certainty. Becker and Dutelle (2013: 23) state that deduction works on drawing conclusions based on premises which are known to be true or are certain, and induction on drawing conclusions from probabilities, which may be more about logic and experience, but both are an integral part of the scientific method. The argument that criminal investigation is more an art or craft than a science stems from the long-held tradition of detective skill being learned, almost exclusively, through practice and the wisdom of experienced investigators. It was this belief that is argued to have inhibited the development of formal detective training (Wade 2007). Experiential skill will, arguably, be more vulnerable to the influences of institutional and cultural discourses in circulation at any point in time. It may guide investigative hypotheses, ideas of the motives of the offender, the perception of the victim, and the case narrative. We should also remember that crime itself is a societal/legal construct and criminals act in multiple contexts with multifarious motivations and behaviours.

There is a strong argument that investigations must be constituted of science and art, especially if we remember that all crimes and trials occur in a social and political context. In fact, Ferris (1987) argues that the criminal investigation is more art than science and, as a discipline, it necessarily borrows from all other disciplines, including the humanities, due to its complexity.

THE CSI EFFECT

In many contested cases it will be lay people who make decisions of innocence or guilt. In the UK this will be lay magistrates or juries and these individuals, on the whole, are not scientists or detectives. Juries may well rely on popular notions of the strength of forensic evidence and the plausibility of the narrative, and are a dynamic and unpredictable lay element in the process of justice. There is a strong popular belief that science not only has all the answers, but is...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Authors
• 1 Introduction
• 2 A Brief History of Criminal Investigation
• 3 Criminal Investigation and Victims
• Strategic Phase One: Instigation and Initial Response
• Strategic Phase Two: The Investigation
• Strategic Phase Three: Case Management
• Bibliography
• Index