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The Social Life of Forensic Evidence
By Corinna Kruse UNIVERSITY OF CALIFORNIA PRESS
Copyright © 2016 The Regents of the University of California
All rights reserved.
ISBN: 978-0-520-96333-7
CHAPTER 1
In Court
LEGAL STORIES
Forensic evidence comes into the view of the public for the first time during a trial — that is, during the district court hearing. There, forensic laboratory results must be transformed into legally meaningful evidence, and this transformation is achieved through legal storytelling, a way of simultaneously presenting evidence, making it legally meaningful, and evaluating it. It is through legal stories that (forensic) evidence contributes to answering the salient question — whether the prosecution has proved beyond a reasonable doubt that the defendant is guilty of the crime(s) he or she is indicted for — typically but not exclusively in the form of supportive evidence that is used to strengthen or weaken accounts.
The defense can react to the prosecutor's case in different ways. They can challenge the prosecution's legal story, or parts of it; they can tell a different legal story of their own; or they can do a combination. The evidence the defense brings to court can also affect the prosecution's story, as it becomes part of the whole of the evidence and thus must be taken into account for a legal story to be plausible. However, the indictment, and thus the prosecution's initial legal story, sets the agenda for the trial and consequently for how the evidence is framed.
INTO THE COURTROOM
In Sweden, the district courts are the primary site for adjudication in the criminal justice system. Few verdicts are appealed, and even fewer are brought before the Supreme Court. In 2014, for example, the district courts decided about eighty-four thousand criminal cases, the courts of appeal decided nine thousand (36 percent of which were amended), and the Supreme Court decided just twenty-three (Swedish National Courts Administration 2015). These numbers give an indication of the central role the district courts play in the criminal justice system.
The most noticeable difference from Anglo-Saxon criminal justice systems is that Swedish courts do not rely on juries. Instead, the prosecution and defense make their cases to a committee of judges and what are known as lay assessors (nämndemän). In the district courts, this committee consists of one judge and three lay assessors; in the courts of appeal, it consists of three judges and two lay assessors.
Lay assessors are legal laypersons who have been nominated by local political parties and appointed by the municipal council. They serve for ten to twenty days a year, and their votes are equal to those of the judges in determining judgment and sentence. Their role is to bring an everyday perspective to the professional judges' legal expertise and focus, a similar function to that of juries in other criminal justice systems.
In the courtroom, the committee — which is also known as the court — is usually seated behind a long table together with a court secretary. The two parties are seated at tables to either side, the prosecution and the plaintiff(s) with their counsel on one side and the defendant(s) and their lawyer on the other. The witness box forms the fourth side of a rectangle with the other tables, facing the court and often with its back to the audience.
In accordance with the presumption of innocence, the burden of proof is on the prosecution to prove their case beyond a reasonable doubt. Accordingly, the trial's point of departure is the prosecutor's written indictment, which states which crime(s) the defendant is being charged with and on what grounds. This document is submitted to the court and the defense well before the trial itself. At the same time, the prosecutor also submits the pretrial investigation report, which lays out all of its evidence and which becomes a public document at this point.
However, although the court knows the prosecution's position and evidence beforehand, the proceedings are, by law, conducted verbally, and the court must take into account only what has been said during the hearing. Thus, a hearing begins with the prosecutor's opening statement in which she or he outlines the indictment, stating what the defendant is being indicted for, giving an overview of the evidence, and specifying which sanction the prosecution demands. One prosecutor I spoke with explained this opening presentation "as a trellis or a lattice." She continued: "I have to sort of give the time, the place, this is the evidence there is, explain [that] these witnesses will be heard, very concisely what they will be heard on [...] so that the court has a lattice of information that they then can weave the evidence into when we go through the evidence and hear the witnesses, so that it becomes a complete picture for them."
As the prosecution is under the obligation to retain their impartiality in court, she emphasized caution: "I try not to go all out and claim that it should be obvious that it is in a certain way, but [...] I present the facts, well anyway, what facts there are, try to sum them up and make them clear. [...] A little bit, though, you have to bring up in advance right away [...] otherwise it might be difficult to understand for the court. [...] I can ask the court to pay particular attention to [specific] details, because this is an important point."
How a trial is structured has, of course, an impact on its content. As the prosecution bears the burden of proof, their outline and their case is what the hearing revolves around — the question to be answered being whether they have proved their claim about the defendant's guilt. Accordingly, the prosecutor's "lattice" and the "details" he or she points out as central to the case affect the course and the focus of the trial when the evidence is put before the court. The defense will have to take this focus into consideration when they outline their view of the case and the evidence they wish to refer to.
After the opening statements, the full evidence is presented to the court. Unlike in the United States, in the Swedish criminal justice system there is freedom of evidence, that is, the parties are free to present anything they regard as relevant as evidence. The court receives all the evidence presented and, in its private considerations after the hearing, decides which parts are relevant. Therefore the demarcations between admissible and inadmissible evidence that can become important in and around US trials (see, for example, Caudill 2002; Jasanoff 2001, 2006; Lynch 1998) are not relevant in a Swedish context.
After the opening statements, the plaintiff is interrogated, first by the prosecutor and then by the defense lawyer. Next, the defendant is interrogated, first by his or her own lawyer and then by the prosecutor. After that, the parties present their evidence in detail. Witness evidence is presented and examined by an interrogation of the witness(es), first by the party who summoned the witness and then by the other party.
Forensic evidence is presented verbally, with the written evidence, such as expert statements, being summed up or read aloud by the party referring to it. Sometimes forensic evidence is presented by an expert witness. Evidence from the Swedish National Laboratory of Forensic Science (SKL) is usually summarized by the prosecutor; the SKL's forensic scientists are rarely summoned to court to appear as expert witnesses.
Finally, the prosecutor, the plaintiff's legal counsel, and the defense lawyer make their closing statements, summing up what they consider the principal points of the case.
During all this, the judge and lay assessors are expected to listen to the evidence put before them and not slip into an investigative role. The judge may, however, on occasion ask a witness for clarification, point out to a participant in the trial that it is not their turn to speak, or rebuke a noisy audience.
The court is required to be impartial. For the prosecutor, impartiality means presenting all the evidence, both for and against the defendant. For the court, it means considering the defense's version of events at least as seriously as the prosecution's. The only party allowed to be partial in court — or in the criminal justice system as a whole — is the defense lawyer, who is allowed, and indeed obligated, to be on his or her client's side. Unlike the prosecutor, the defense lawyer is allowed to keep evidence from the prosecution and the court if it is to the client's disadvantage.
LEGAL STORYTELLING
In presenting their cases, both the prosecution and the defense tell competing narratives about the defendant(s) and his or her relationships to other people — both to the victims and to others. In those narratives, they connect (or disconnect) people and their actions to (or from) the crime(s). Forensic and other evidence is an integral part of these narratives; the evidence is made understandable and relevant at the same time as it contributes to the narratives' coherence and logic.
Telling such stories is a common part of legal systems. Jerome Bruner, for example, describes "storytelling" as at the heart of legal practice (2002, 37). Similarly, Lance Bennett and Martha Feldman assert that "the criminal trial is organized around storytelling" (1981, 3). Their and other courtroom studies discuss how participants in trials employ everyday practices and strategies of telling (and deciphering) stories in order to connect individual pieces of evidence to a case and thus make them meaningful (see, for example, Huntley and Costanzo 2003; Pennington and Hastie 1986, 1992; Sarat 1993). In Bennett's words, a "story is an elegant symbolic framework in which a large amount of information can be organized, compared, tested, and interpreted to yield a clear judgment about disputed versions of an action" (1979, 311).
According to Bennett (1978, 1979), everyday discursive skills of telling and receiving stories provide a means of presenting and processing potentially confusing and contradictory evidence into judgments. Conversely, the stories told in court must incorporate all the evidence in order to be credible and thus valuable (Bennett 1979, 312). Consider the following two cases.
In one case, a man and his adult son were tried for fraud and unlawful disposal. The case concerned whether the defendants had applied for loans and credit cards in other people's names. Application papers had been ordered and then stolen out of the residents' mailboxes, filled out in their names, and returned. The documents and credit cards subsequently sent by the companies were also taken from the mailboxes (the unlawful disposal part) and, in some of the cases, used. Among other evidence, the defendants' fingerprints (as well as unidentified ones) were recovered from the application forms, and the handwriting on the forms had been matched to samples from the defendants. Additionally, a witness had seen the father rummaging in a stranger's mailbox.
The prosecutor maintained that this was a fraud scheme, contrived and carried out by the defendants. Their fingerprints on several of the application forms showed, according to the prosecutor, their involvement, as did the witness's account. Moreover, the witness said that the father, on making eye contact with her, had let go of the mail, closed the mailbox, and left. This, the prosecution maintained, was the behavior of someone who knew that he was doing something he was not supposed to.
The defense did not question that there had been a series of loan and credit card frauds, nor did they contest that the fingerprints on the applications were those of the defendants. What they did question, however, was their clients' involvement. The defense argued that the frauds had actually been carried out by one of the mother's relatives. They claimed that this person (proof for whose existence the police had been unable to find) came and went in the clients' home at liberty, and the family, although being suspicious of his doings, were intimidated by him and felt an obligation to kin. The defense asserted that he was the one who had generated the fraudulent applications, and, as he had kept the papers in the family's apartment, the father's and son's fingerprints must have gotten onto them when they were lying about. In fact, the defense maintained, the unidentified fingerprints found on the application forms were the relative's. The defense also contended that the witness had observed the father doing something he was hired to do by a third party, and that the father, unaware that this was illegal, was simply glad to have found employment.
The second trial was about a car crash. Two cars had collided in a traffic circle, and the prosecution believed that this crash was not an accident, but that one of the drivers, a man in his late middle age, had deliberately hit the other car, seriously injuring the younger man driving it. The police suspected the crash might not have been a regular accident when the responding officers recognized both men as being on opposing sides of a conflict that had involved restraining orders.
The evidence the prosecution presented was composed of both witness testimonies and forensic evidence. The testimonies — given by the plaintiff, members of his family, and a friend — gave evidence of the younger man's troubled relationship with the older man's daughter. The difficulties had extended into a conflict between the young man and his (at that point, former) girlfriend's family, which had been going on with sometimes more and sometimes less intensity over several years.
In presenting the forensic evidence, which was decidedly nonroutine due to the rarity of cars being used as weapons, the complex circumstances of the traffic circle, and the expertise involved, the prosecutor and an array of expert witnesses recounted the steps taken to collect evidence. The crime scene division, with the help of a consultant from the National Road Administration (Vägverket), had cordoned off the traffic circle, arranged the cars involved in accordance with tire marks on the road surface and indentations and crush marks on the cars, and photographed them from a crane to document their presumable positions at the time of the crash. The consultant had then calculated the two cars' speeds from their positions and the skid marks, which had both been documented after the crash. The plaintiff's car had been hit from the side and pushed almost straight sideways across a safety island and a bicycle lane, all on dry asphalt. The consultant's calculations indicated that, at the time of the impact, the defendant's car had been traveling at a rather high rate of speed, whereas the plaintiff's car had been moving very slowly. In addition, the police measured the average speed of cars passing through the traffic circle and conducted test drives to estimate the maximum speed at which a car could travel through it.
All in all, the prosecution declared, this was not an accident. They claimed that the defendant had been driving at a speed that was well above the average for that traffic circle. In fact, it was at least as high as, if not higher than, the highest speed a police officer who was trained in high-speed driving had managed to reach while still being able to make it through the circle. This speed, it was implied, could only be reached if a driver was not overly concerned about staying inside the circle, which was the conclusion the prosecution also reached after considering the angle at which the cars had collided.
The prosecutor maintained that the collision was therefore to be seen in connection with the difficult relationship between the young man and the older man's daughter. After the defendant had caught sight of the young man speaking to his daughter, the prosecutor argued, he proceeded to run his car into the young man's car, trying to kill him and thus put an end to the conflict. It was extraordinary luck that the plaintiff had been only badly injured.
The defense attorney concurred that there had been a conflict, but said that the defendant's family had moved on, a closure testified to by the defendant's wife, the young woman's mother. Furthermore, the defense disputed the forensic evidence. This, the attorney concluded, was not an attempted manslaughter, but a tragic accident. Distracted by thoughts of his daughter's well-being, the defendant had lost control of his car in a trickily cobbled traffic circle, disastrously crashing into the other car. Consequently, he was as much a victim of the accident as the plaintiff; he had just been luckier in escaping almost unhurt.
(Continues...)
Excerpted from The Social Life of Forensic Evidence by Corinna Kruse. Copyright © 2016 The Regents of the University of California. Excerpted by permission of UNIVERSITY OF CALIFORNIA PRESS.
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