From the mind of Dr. Michael Arntfield

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Rethinking Forensics

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As I receive more and more interest from cops, business people, publishers, students, and other scholars with respect to my work in forensic writing, I realize that the vast majority of these people have no clue what the hell I’m talking about, and that their ostensible fascination hinges on little more than the inevitable sexiness of the term “forensic.” If nothing else, they seem to recognize it as something of a qualifier that what I’m doing is cool. The reality is that forensics as we know it has been around since antiquity, with the term actually being derived from the Latin for ‘of the forum’ meaning, quite simply, something that is subject to public scrutiny or is in the public sphere. Over time, the courts as possibly the most public, and certainly the most spectacular and provocative sphere have become the venue with which we most frequently associate the forensic label, and the venue to which it is most commonly ascribed. Television, of course, as the perfect complementary medium for the court system given their mutually theatrical and dramatic stylings, has subsequently allowed the term to mutate into a branding scheme. Perhaps not so much a brand maybe, as a genre for classifying fictional narratives, thus ensuring (mis)interpretations of science and the law that are just as, possibly even more fictional.

It’s hard to believe that the CSI franchise has been home schooling viewers with IQs in the double digits for well over a decade now. It therefore shouldn’t be surprising, and yet it still is, that the various series and their lower-rated derivatives (BonesNumbersCold CaseThe MentalistCriminal Minds, et al.) continue to perpetuate misinformation as well as disinformation (ie: misunderstandings as well as intentionally misleading information) about forensic sciences and police investigative techniques.

Part of the problem is the fact that so-called “experts” representing various on-line diploma mills across the United States and Canada keep emerging as hired guns in trials in order to muddy the waters with jargon and engineer reasonable doubt amongst juries who no doubt find being grown ups and making grown up decisions a daunting challenge. This racket was actually going on during impaired driving trials even before CSI debuted so you might say that the courts had already proved to be nicely fertile for these sorts of antics even before television caught wind of the idea. Lest we forget in this circumstance that the inference of reasonable doubt is fundamentally different than being innocent, and more importantly thatpresumed innocent doesn’t mean probably innocent. If all you needed was basic grounds to arrest a probably innocent person, we would be living in a totalitarian regime. The reality is that most people arrested and charged are guilty – whether or not they are convicted is another story.

Second, the main issue as I see is that academics, journalists, and other plain out half-wit agitators continue to talk about this so-called “CSI Effect” as though it is still some sort of unheard of thing. New potboiler books (garbage that is recklessly edited and then hastily released as mass market paperbacks by either publish-on-demand companies or other dubious presses) still emerge every year on the topic. This, despite the fact that legal practitioners have been discussing the impact of these series, and the compulsive viewership of forensic-themed TV shows in contaminating jury pools and swaying juries during deliberations for nearly a decade now. Set your news aggregator settings to capture these sorts of stories and watch the number of hackneyed features still coming up every week that talk about the “CSI Effect” as though it just came out of the blue, and how forensic television shows confuse facts in issue during trials involving real forensic evidence and how this is the next big public panic. Thanks for the breaking news a generation or so later.

The reality is that the current forensic zeitgeist (prevailing spirit or ideology of an era) doesn’t need to be dismantled but needs to be tweaked enough so that people understand that anything prefaced by a “forensic” qualifier (chemistry, biology, toxicology, anthropology, entomology, zoology, accounting, linguistics, etc.) refers to that specific discipline in the context of the courts. It refers to the manner in which an existing area of expertise is used in the service of a prosecution, litigation, investigation, or engages any element of the court system or judicial process. Forensics is therefore not a “thing” per se but a process by which other disciplines are carried out, assessments made, and reports rendered by people who ultimately need to account for their findings in the light of the court and as a matter of permanent public record. For this reason, and also contrary to the CSI propaganda, rarely if ever is a forensic specialist qualifiable as an expert in more than one area. They also, almost without exception, have other jobs (university professors, lab researchers, independent scholars, antiquarians and curators, etc) but render their expertise as witnesses and consultants (often for free) to serve the interests of justice. Sometimes it is also done for the benefit of their own egos, but this is par for the course given that their reputations are on the line and the cases are usually high stakes and highly publicized. Full-time forensic specialists tend to either be police officers who are relegated to what’s known as forensic identification (fingerprinting, impression matching, evidence collection and collation) or are medical practitioners tasked primarily with post-mortem and autopsy work, or what is known as forensic pathology. The so-called “criminalists” in CSI (one of many made-up terms to whiz slack jawed viewers) are the former (forensic identification specialists) and would not then be doing the actual lab work or DNA analysis as seen on TV. Seldom do they also wear form-fitted leather pants and heels to crime scenes.

This brings us back to where I started: forensic writing. Now that you know what forensic really means take a guess as to what it signifies, and why no one has ever identified it as a field suitable for inclusion in the forensic repertoire recognized by the courts until now. It doesn’t mean the analysis of handwriting if that’s what you’re thinking. Those people are called forensic graphologists, and represent probably the most contentious and least verifiable (I daren’t say credible) area of the forensic specialities. On the contrary, forensic writing refers to how documents are written in the first instance with the expectation that they may or will end up in court now or in future, and in any type of court – criminal, civil, traffic, family, et al. Lawyers do this stuff everyday, but I’m not talking about just drafting documents specifically for a legal purpose from inception. Instead, I’m talking about rethinking, and responding accordingly in terms of style and structure, about who your audience is and where this document, whether analogue or digital, may end up. The reality is that the speed with which information is disseminated in our current digital age has necessitated significant changes with respect to both the style and substance of all documentation scribed by any person is a position of trust, authority, or anyone occupying a management, money-handling, or vulnerable sector position. Persons immersed not only in traditional law enforcement, legal, paralegal, or investigative positions, but professionals from teachers to doctors to bankers now need to continually draft all written materials either directly or indirectly associated with their position – in both hard and soft copy – with the understanding that they may, either though official or unofficial channels, reactive or proactive disclosure, become public documents that are ultimately subject to legal and media scrutiny beyond the confines of their original creation. In other words..in the public sphere, and thus “forensic.”

From original notes in the office or in the field to inter-agency emails, depositions, factums, and even interviews and sworn testimony that are transcribed and committed to written record as part of this same documentary system, forensic writing describes a standardized approach to all institutional writing in a knowledge-based economy. It is both a methodology and a philosophy that ensures a certain consistency, formality, and accountability of language in service to the law at both the procedural and theoretical levels. Binding decisions with respect to full disclosure in criminal cases in Canada alone, including R. v. Askov (SCC 1990) and R. v. Stinchcombe (SCC 1991) increasingly apply to all digital and manual documentation across all fields in our increasingly litigious and informatic culture. These decisions have over time and through corresponding advances in technology, distilled a climate of scrutiny with respect to documents drafted by all persons acting in an official capacity, whether in the law itself or in intersecting disciplines such as medicine, finance, and education, all of whom may constitute ‘justice system participants’ as per the Criminal Code definition.

Forensic writing thus encompasses a set of literary standards that both inform and persuade not only criminal justice professionals, but also a general readership who has elevated expectations about how matters of public interest should be put to written public record. Establishing such standards amongst both the private and public sectors ensures that institutional writing today adopts a ‘worst case scenario’ style, and that it conforms to certain stylistic and semantic conventions in order to insulate documents against public misinterpretation and allegations of subjectivity not only in the context of the law, but amongst laypersons. In an age of Wikileaks, Freedom of Information, digital archiving, citizen journalism, and when unsolicited and unsourced opinions abound, never before has the written document been so perishable in its confidentiality, and at the same time never before has a (potential) justice system participant’s credibility been so summarily defined by the quality of their writing and their documentary pedigree. The result is a need to adopt and advocate a standardized, interdisciplinary prose amongst the disciplines – all disciplines – so that documents created at source can withstand protracted attention and criticism once they become ‘of the forum.’

That’s the abridged version believe it or not. It is also the single, and likely most important component of forensics that you won’t see on TV, but which may actually impact your life more dramatically than anything on screen. The full book is coming soon.