James Robertson, Australian and New Zealand Forensic Science Society: Significance of Preservation, Collection and Presentation of Evidence for Forensic Nurses
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James Robertson, Australian and New Zealand Forensic Science Society: Significance of Preservation, Collection and Presentation of Evidence for Forensic Nurses

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James Robertson, Professorial Fellow, Director, National Centre of Forensic Studies, Vice-President, Australian and New Zealand Forensic Science Society, ANZFSS delivered this presentation at the 2013 ...

James Robertson, Professorial Fellow, Director, National Centre of Forensic Studies, Vice-President, Australian and New Zealand Forensic Science Society, ANZFSS delivered this presentation at the 2013 National Forensic Nursing conference. The annual event promotes research and leadership for Australia’s forensic nursing community. For more information about the conference and to register, please visit the website: http://www.healthcareconferences.com.au/forensicnursing

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James Robertson, Australian and New Zealand Forensic Science Society: Significance of Preservation, Collection and Presentation of Evidence for Forensic Nurses Presentation Transcript

  • 1. Significance Of Preservation, Collection And Presentation Of Evidence For Forensic Nurses Dr James Robertson AM PSM Director NCFS and Professorial Fellow Vice President ANZFSS CRICOS #00212K
  • 2. Forensic Nursing Science • Science comes from the Latin word „scientia‟ meaning „knowledge‟ • Forensic comes from the Latin „forensis‟ meaning „of or before forum‟ • Forensic science attempts to provide knowledge which assists to resolve legal disputes Forensic nursing seeks to address healthcare issues that have a medico legal component HENCE The potential for forensic nursing within the field, are many and varied, working in collaboration with the various members within the field of forensic science CRICOS #00212K
  • 3. Role Of First Responders In The Health System Where does the crime scene start in the health system? For many incidents this is either the ambulance or the emergency department The first responsibility of paramedics and staff of emergency departments is preserving life NOT evidence CRICOS #00212K
  • 4. • Forensic science starts at the locus or scene of what is alleged to be a crime – a crime scene • For forensic nursing the „crime scene‟ is likely to be an examination area in a hospital • Except in some specialist units, such as sexual assault referral centres, these facilities are unlikely to have been designed with forensic practice in mind! • As the Jama case in Australia has demonstrated – normal hospital procedures are not likely to meet forensic and legal standards CRICOS #00212K
  • 5. CRICOS #00212K
  • 6. The Jama Case – A Timely Reminder That Even Apparent Good Practice May Fail “DNA evidence appears to have been viewed as possessing an almost mystical infallibility” The unreserved acceptance of the DNA evidence allowed all involved to leap over a „veritable mountain of improbabilities‟ „There were always ample warning signs... but they simply were not read‟ (The Report on an Inquiry into the circumstances that led to the conviction of Mr Farah Abdulkadir Jama, The Hon. F H R Vincent, 2010) So What Were The Problems? CRICOS #00212K
  • 7. Contamination It is not DNA but physical biological material which is shed and forms a background of potential „DNA‟ sources! This biological material must be shown to have a causal link to what is alleged to have happened. CRICOS #00212K
  • 8. Contamination The Crisis Unit „The trolley on which equipment was laid out would probably not be cleaned after use and some of the items would not be cleaned at all, for example the trolley top and scissors‟ „There was no log book or other record kept that would enable a check to be made as to whether any cleaning was carried out...‟, pp 22 The Police View „The investigating police member... said that it never contemplated that, if there was contamination, it may have happened at any other location than the testing laboratory.‟ pp 25 The Forensic Laboratory „...I do not think contamination between the two cases could have occurred...‟ pp 25 The Prosecution „There was no suggestion in this case of any lapse or error, including contamination‟ pp 28 The Defence „...the defence did not challenge any of the prosecutor‟s assertions concerning the absence of any risk of contamination...‟ pp 29 (All from Vincent Report, 2010) CRICOS #00212K
  • 9. Other Issues • Lack of criminalistics approach • Over emphasis on the DNA number • Poor appreciation and knowledge of the “end to end” forensic process • Inappropriate prosecution approach “The prosecutor submitted that they (jury) need not be concerned with such matters as when and where the rape of M could have taken place or the absence of any other evidence inculpating Mr Jama because the DNA evidence established his guilt” (pp. 36, Vincent Report, 2010) If you don‟t ask the right questions, or conveniently ignore them, you won‟t get the right answers! CRICOS #00212K
  • 10. Back To Basics LOCARD’S EXCHANGE PRINCIPLE “EVERY CONTACT LEAVES A TRACE” “Toute action de l‟homme, et a fortiori, l‟action violente qu‟est un crime, ne peut pas se dérouler sans laisser quelque marque.” Any action of an individual, and obviously, the violent action constituting a crime, cannot occur without leaving a trace #00212K CRICOS
  • 11. Recovery and Collection of Items • • • • Methods used should, as far as possible, facilitate subsequent laboratory examinations Location of trace materials may help answer in the interpretation of „what happened‟ – hence, recovery techniques should attempt to preserve location information If the trace material is large enough to see then it should be protected or collected If an item is damaged try and avoid cutting or further damaging it CRICOS #00212K
  • 12. Damage To Textile CRICOS #00212K
  • 13. You Cannot Collect What You Don‟t Recognise The three „R‟s‟ Evidence Recognition Recording Recovery You should attempt to record events and actions as they unfold using CONTEMPORANEOUS notes, and as far as possible, (and sometimes practical) this means step-by-step, in chronological order and in appropriate detail CRICOS #00212K
  • 14. Types Of Trace Materials Reminder • Trace materials can be of biological, chemical or physical origin • Biological trace can include material of human origin (skin cells, semen, faeces, stomach contents, vomit, hairs), • Animal origin (all of the above plus feathers, fish scales etc.) • Plant origin (fibres used as textiles, plant debris, pollen, food residues, illicit drug plants etc.) • Chemical trace can include – fibres, glass, paint, explosives, fire debris, metals, soils etc. • Physical trace is anything which is large enough to have physical characteristics which can be described and analysed CRICOS #00212K
  • 15. A Useful Way To Collect Physical Materials – The “Druggist Fold” CRICOS #00212K
  • 16. Establish A Chain Of Custody After each item has been individually packaged in an appropriate container the container must be • Sealed as soon as possible • Individually labelled with a unique identifier, and; • Items should not be then handled unnecessarily – the use of transparent packaging or packaging with a transparent window discourages packages being opened up to view contents CRICOS #00212K
  • 17. Packaging And Labelling CRICOS #00212K
  • 18. Tamper-Evident Seals CRICOS #00212K
  • 19. Recommended Packaging CLOTHING PLANT MATERIAL • Separately in paper bags preferably with a see through plastic panel • In paper bags which are breathable. Plant material such as cannabis will quickly mould in plastic bags WET BODY FLUIDS • Where possible dry before packaging. If on clothing preferably dry flat. Liquid blood should be placed in a suitable vial containing the preservative EDTA SWABS FOR BIOLOGICAL TESTING • As with wet body fluids, where possible allow to dry. Do NOT actively dry by applying heat TRACE EVIDENCE • Place on folded clean paper – called a druggist‟s fold – then place in a snap-seal plastic bag. CRICOS #00212K
  • 20. RETAIN – RECORD - REVEAL UK Crown Prosecution Service (CCPS) for experts RETAIN You should retain everything including physical, written and electronically captured material RECORD The requirement for you to commence recording begins at the time you receive instructions and continues for the whole of the time you are involved REVEAL You are required to reveal everything you have recorded When compiling your report/statement you should ensure due regard is given to any information that points away from, as well as toward, the defendant(s) You must not give expert opinion beyond your area of expertise CRICOS #00212K
  • 21. Collecting Hairs – Is It Worth The Effort? CRICOS #00212K
  • 22. Hair Growth Phases (a) Anagen hair root (b) Catagen hair root Diagrammatic representation of hair follicles at different stages of the growth cycle. Anagen is the active growth phase during which follicle development takes place and the hair fibre is produced. Catagen is the regression phase in which tissue changes occur as the follicle approaches telogen, the resting phase. (c) Telogen hair root CRICOS #00212K
  • 23. Microscopy Of Hairs Comparison Microscopy Features of Caucasian Hair CRICOS #00212K
  • 24. Facts About Human Hairs • All 2-3 million hair follicles are present at birth • The scalp has about 100,000 to 150,000 follicles • About 90% of scalp follicles will be in telogen growth phase at any one time • About 6-8% of scalp follicles will be in telogen growth phase and 2-4% in catagen growth phase • Telogen hairs are removed by normal activities such as grooming and are, hence, most commonly present as a „trace‟ material • About 95% of hairs recovered in forensic work will be telogen • Until recently it was not possible to obtain a nuclear DNA result from telogen hairs BUT CRICOS #00212K
  • 25. (a) (b) Examples of Telogen Hair Roots with >30 Nuclei Harris’s Haematoxylin Staining (c) (d) The cell nuclei are round to oval-shaped and appear dark violet colour. Images (a), (c), (d) and (e) classified as possessing follicular tags (e) (f) Image (b) has a germinal nipple. CRICOS #00212K
  • 26. CRICOS #00212K
  • 27. Key To A Successful Hair Examination Is An Adequate And Representative Known Sample SCALP HAIR •Combed PUBIC HAIR •Up to 100 but number is less important than ensuring any visible variation in length and colour is represented •Comb to recover loose hairs which may be „evidence‟ •Plucked hair 20-30 Collect in a druggist fold NOT a plastic container Cut ONLY as a last resort and at skin level Forensic cases may have tens to hundreds of recovered hairs and microscopy still plays a key role in selecting hairs for DNA testing CRICOS #00212K
  • 28. ROLES OF FORENSIC SCIENCE IN THE CRIMINAL JUSTICE SYSTEM (CJS) 1. It establishes the elements of a crime. For example, testing suspected controlled substances proves they are drugs and thus, that a crime has been committed. 2. It associates defendants with crimes or disassociates them. - Forensic evidence (particularly fingerprint and firearms evidence) can conclusively associate a defendant with a crime - Forensic evidence such as blood, semen, hairs and fibres can also tentatively associate a defendant. 3. Forensic evidence can help exonerate a defendant when laboratory results are inconclusive or when they definitely disassociate the defendant from the crime. 4. It helps reconstruct the crime or the crime scene. CRICOS #00212K
  • 29. Expert Witnesses Section 76 Evidence Act 1995 (NSW) The Opinion Rule “Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion is expressed.” The Exception – “A witness can express an opinion that is based wholly or substantially on specialised knowledge acquired through study, training or experience – that is, the expert opinion” (s 79) CRICOS #00212K
  • 30. Six Steps for Admissibility of Expert Witness Testimony For expert evidence to be admissible: • It must be agreed or demonstrated that there is a field of specialised knowledge • the witness must demonstrate that they are an expert in an aspect of the specialised knowledge by reason of specialised training, study or experience • the witness‟s opinion must be based wholly or substantially on their expert knowledge • The facts that the expert bases his or her opinion on, must be established as evidence either by the witness or another witness • It must be established that the facts on which the opinion is based form a proper foundation for it; and • The expert must clearly explain the logical basis of their opinion and how it relates to the established evidence in their expert knowledge (Makita (Australia) Pty Ltd V Sprowles [2001] NSWCA 305 by Heydon J A at para 85) CRICOS #00212K
  • 31. Codes of Practice for Expert Witnesses The standard features of all Australian Codes of Practice include: • an expert witness has an overriding duty to assist the court impartially on matters relevant to the witness‟s area of expertise and is not an advocate for a party; • an expert witness must work cooperatively with other witnesses; • a report by an expert witness must set out all the facts and assumptions on which the expert‟s opinions are based and must note any matters that qualify those opinions; and • if an expert witness changes opinion, the witness must prepare a supplementary report. CRICOS #00212K
  • 32. Purpose Of A Criminal Prosecution “the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel has a duty to see all available legal proof of the facts is presented. It should be done firmly and pressed to legitimate strength, but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing.” (From: Ontario Crown Prosecutors Policy) Do you think prosecutors always avoid the notion of winning or losing? CRICOS #00212K
  • 33. “Crime and violence bring together two of the most powerful systems that impact on the daily lives of citizens throughout the world: Health and Justice” “The forensic nurse examiner represents one member of an alliance of healthcare providers, law enforcement officials, and forensic scientists joined in a holistic approach...” (From: Lynch, V.A., 2006. Forensic Nursing Science, Chapter 1, in “Forensic Nursing. A Handbook for Practice, Ed. Hammer, R.M., Moynihan, B and Pagliaro, E.M.. Pub. Jones and Bartlett.) Understanding and respecting each others roles and responsibilities is the key to better outcomes for all in the CJS CRICOS #00212K