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Lowering the Drawbridges:Legal & Forensic Science Education

for the 21st Century.

Carole McCartney,John Cassella,& Paul Chin.

With foreword by Prof. Paul Roberts. 2011

http://www.leeds.ac.uk/

http://www.staffs.ac.uk/ind

http://www.heacademy.ac.uk/p

Lowering the Drawbridges: Legal & Forensic Science Education for the 21st Century

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ContentsPage

Introduction

Background to the workshop 4

Background to the issues 5

Foreword: ‘Teaching Law to Forensic Science Students and Forensic Science 12

to Law Students – Conceptual Groundwork’ by Professor Paul Roberts

The Survey

Results from law lecturers. 18

Results from forensic science lecturers 20

The Workshop:*

Session One - What legal education do forensic science students need? 21

Session Two – What scientific education do law students need? 26

Session Three - How to satisfy these needs?; How to effect change? 35

Preliminary Conclusions

References & Relevant Reading 39

Appendix – The Surveys 44

*A day workshop held at The Rose Bowl, Leeds Metropolitan University, May 27 th 2009, organised by the Physical Sciences Centre and UKCLE in conjunction with the University of Leeds and Staffordshire University. The workshop operated under the Chatham House Rule in order to facilitate a frank and open discussion: When a meeting, or part thereof, is held under the Chatham House Rule, participants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed.

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Introduction

Background to the Workshop

On May 27th 2009 a workshop was held at Leeds Metropolitan University, attended by over 40 academics and practitioners from scientific and legal backgrounds. This workshop aimed to address issues related to teaching forensic science and law by bringing together these legal and forensic science academics to explore avenues for improving understanding, collaboration and communication between the two disciplines. The workshop was the commencement of a project to facilitate the building of vital connections in the academy to ensure that legal education remains ‘fit for purpose’ in the 21st century. This requires that law educators and science educators ‘lower their drawbridges’ and seek mutually beneficial solutions to common educational problems. This will not only reap benefits for students, but also contribute towards developing the legal/ forensic science professions of the future, and ultimately, will assist the criminal justice system in realising its ideals and objectives.

With preliminary research on current cross-disciplinary teaching in universities undertaken, this one-day workshop addressed themes such as:

What legal education do forensic science students need?

What scientific education to law students need?

How to satisfy these needs and who needs to be involved?

Are there problem areas, barriers or omissions that need addressing?

Are there potential solutions that can be readily and/or easily implemented?

Is there a consensus on ‘best practice’ in this area?

Are there issues that require further work and involvement of the wider community?

The format was a series of structured and necessarily short discussions on the issues, led by the organisers. This was intended to encourage maximum participation by all attendees in identifying the options for resolving issues, relevant sources of data and precedents. It was also expected to clearly identify those issues where a consensus has been reached or may be possible between the different perspectives and interests represented at the workshop and, where this is not possible, at least clarify the extent and significance of any disagreement.Background to the Issues

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The institutions of ‘law’ and ‘science’ are often depicted as falling opposing sides of a ‘disciplinary divide’ (Roberts 2012), evoking C.P.Snow’s ‘cultural divide’ between science and the humanities (Snow 1959). Regardless of this wider ‘science and law’ debate (which brevity dictates must be continued elsewhere), there remain apposite and acute concerns regarding the status of science utilised by the law, in particular forensic science and its interplay with criminal law. Research into the causes of wrongful convictions clearly demonstrates that if legal professionals are unable to competently assess and handle scientific evidence, the pursuit of justice can be seriously hampered, potentially leading to factual errors, as well as the misrepresentation and/or misinterpretation of evidence. In England and Wales, many infamous miscarriages of justice:

“had at their heart scientific evidence that was either not disclosed, flawed, or misrepresented in court. The Irish bombing trials used methods of testing for explosives that were invalid, while cases such as that of Kevin Callan1 exemplify grave miscarriages caused by flawed scientific evidence. The successful appeal of Sally Clark2 focused attention again on the non-disclosure by the prosecution of important medical evidence as well as the use of erroneous statistical calculations.” (McCartney 2006:5).

In the US, Garrett & Neufeld (2009) studied 137 trial transcripts where forensic analysts gave testimony in a case where innocent defendants were on trial.3 In 60% (82) of these cases, “forensic analysts called by the prosecution provided invalid testimony at trial – that is, testimony with conclusions misstating empirical data or wholly unsupported by empirical data.” (Garrett & Neufeld 2009:2). They found that defence counsel rarely cross-examined analysts, instructed experts of their own, or challenged invalid forensic testimony.

Expert evidence can be then (mis)communicated to fact finders and decision-makers alike, many of who will struggle with scientific evidence, compounding problems and potentially hindering their appreciation of the reliability, relevance and weight of scientific evidence. The ‘epistemic incompetence’ of the jury (Mnookin 2008) is then extending to counsel, leaving them incapable of gauging the reliability of the scientific evidence adduced: “… there is still widespread scientific illiteracy at the bar.” (Latham 2008:33). Judges have also been similarly strongly criticised: “Science is such a pervasive force in modern society that judges are essentially failing their obligations if they

1 See Callan, K. Kevin Callan’s Story (Little, Brown and Company, London: 1997)2 R v Clark (2003) EWCA Crim 10203 Defendants were later exonerated by post-conviction DNA testing.

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persist in their scientific ignorance.” (Saks & Faigman 2008: 166). Such scientific illiteracy on the part of the legal profession, when coupled with the flaws in forensic science,4 form a toxic combination.5

Furthermore, there is a risk that science can become shrouded in mystery and given a veil of infallibility. Authors have been unable to accurately demarcate the newly labeled ‘CSI effect’ (Gabel 2010), whereby lay people in courtrooms enter with entrenched cultural expectations regarding scientific evidence, garnered from viewing of multifarious popular television crime series (Cole & Dioso-Villa 2007). These are not such novel issues (widespread suspension of critical faculties in the face of ‘science’ existed even before the white coat became symbolic attire for its emissaries), albeit their diagnosis and treatment is rare. However, while:

“problems with forensic science, and mistakes made by experts, are rehearsed in the media on an increasingly regular basis. Normally absent from such criticisms is any examination of why it was that no lawyer was able to spot a potential issue or had drawn attention to errors before damage was done” (McCartney 2008:992).

While it is accepted that ‘bad’ (or ‘junk’ in American parlance) science is being accepted by juries: “there is a latent problem that often falls in the shadow of bad science: bad lawyering.” (Gabel 2010: 236). Perhaps lawyers can no longer escape critical scrutiny of their role, as Gabel (2010:236) highlights:

“While the NAS Report primarily thrashed forensic science and crime labs, it did contain the somewhat hushed admonition that “lawyers and judges often have insufficient training and background in scientific methodology and they often fail to fully comprehend the approaches employed by different forensic science disciplines and the reliability of the forensic science evidence that is offered at trial” (NAS Report 2009:27).”

In order to prevent the criminal justice process being derailed by these potential difficulties with utilising scientific evidence: epistemic incompetence; credulity; and bad lawyering, it is also argued

4 For an incisive summary see the 2009 NAS Report, which discusses the ‘problems’ with forensic science, including a lack of scientific bases and methodologies; partisan pracitioners ; the influence of law enforcement; a lack of funding for research and facilities; lack of postgraduate training, among others. 5 Such concerns may not be quite so acute in other branches of law, where lawyers working within these fields have: “achieved a level of scientific literacy relevant to their work, for example, the patent bar, which always had it; the medical malpractice bar; and those elements of the bar that work in administrative law in science-related areas such as environmental, and food and drug law.” (Latham 2008:33).

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that legal professionals ought to shoulder greater responsibility when adducing expert evidence (Saks 2001; Gershman 2003; Raeder 2007; Moriarty 2007; see Caudill 2003 and 2011 for an alternate view). Saks (2001) calls for lawyers to be subject to disciplinary action if they knowingly rely upon, and adduce invalid expert evidence while Gianelli and McMunigal (20007) argue that there should be an ethical responsibility to not adduce flawed expert evidence.

In many legal jurisdictions, there is already a burden placed upon the judge to act as a ‘gatekeeper’, with criteria set out upon which they must base admissibility decisions. If it were agreed that counsel should assume an enhanced responsibility to do some preliminary ‘reliability’ test of expert evidence they wish to adduce, even before a judge acts as ‘gatekeeper’, it would first require lawyers to understand some basic scientific principles and the ‘scientific method’ as a bare minimum (arguably, as should any educated adult). Yet the so-called ‘scientific illiteracy’ among the general public reaches into the legal community with lawyers ‘naturally intimidated and overwhelmed by scientific evidence’ (Findley 2008:931), or as Latham explains: “Lawyers, though they may be popular science enthusiasts, typically have little exposure to scientific training, and do not know how to read scientific literature critically” (Latham 2008:33).6 This is not surprising when looking at the scientific education (or lack thereof) of law students, most of whom have not studied any scientific discipline post-16 (McCartney 2008).

Most law undergraduates have ‘dropped’ science very early on in their educational career, their focus then often solely on arts and humanities subjects. The traditional law degree then dilates this educational lacuna by failing to introduce law students to basic scientific concepts, or provide grounding in the work of scientists: “Although law school could be described as a glorified liberal arts education, it generally does not include courses in research methods and statistics. Even where such courses are available, they are taken by a small percentage of students” (Saks & Faigman 2008:161). Yet upon qualification, they are expected to understand and manipulate evidence from scientists and experts. This omission in law degrees has increasingly been lamented (see McCartney 2008), “Law students underestimate the amount of science and math required for legal practice even in areas unrelated to forensic evidence issues” (Gabel 2010:258), and yet the disciplines of law and science remain divided not just paradigmatically but often geographically: scientists and lawyers rarely meet on a university campus or find themselves researching co-operatively; they will also not be catered for in the same libraries or literature sources, (or by the same research funding bodies).

6 Latham explains that this may be worse in the UK than in the US due to the ‘specialisation’ in education that is more prevalent in UK universities (2008:33).

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Concerns have long been raised in the USA, UK and Australia about deficits in legal education. It is the case that the majority of England and Wales university law students ‘drop’ science early in their in education; 18 per cent of Leeds University first year law students (intake of 2008) have one (rarely more) science A-levels (see McCartney 2008).7 In the US, in the academic year 2007-2008, 4.3% of law school applicants had a natural science degree; 2.7% had engineering, 0.8% computer science and 0.9% had health professional degrees.8 As Gabel (2010:257) explains: “The overwhelming majority of ‘feeder’ degrees for law school are arts and humanities and business administration. Additionally, due to advanced placement courses, some students have not even taken a math or science class since high school.”

Yet if law students are not studying any science beyond mid-high school level, and then can avoid any further science at pre- or post-qualification stages of their education, when are lawyers learning how to handle ‘evidence’ and interpret information – the mainstay of their occupation? If becoming a criminal law practitioner, lawyers may often be required to assess scientific evidence, yet have no educated basis upon which to do this. Such a criticism could also include a basic understanding of statistics, which is also barely introduced, if at all, on a traditional law degree: “math and science are a black hole in legal education” (Gabel 2010:257). Even if considering the law degree a liberal arts degree, and not vocational, there are wider benefits of a ‘broadly conceived’ law degree in tackling scientific illiteracy among the general population.

The traditional law degree then dilates an educational lacuna by failing to introduce law students to basic scientific concepts, or provide grounding in the work of scientists. Yet upon qualification, they are expected to understand and manipulate evidence from scientists and experts. This omission in law degrees has been lamented and yet the disciplines of law and science remain divided not just paradigmatically but often geographically: scientists and lawyers rarely meet on a university campus or find themselves researching co-operatively; they will also not be catered for in the same libraries or literature sources.

Worryingly, lawyers then ‘often fail to fully comprehend the approaches employed by different forensic science disciplines and the reliability of forensic science evidence that is offered in trial’ (NAS 2009, Rec 10). Indeed, with the growing numbers of exonerations of innocent people

7 In England and Wales, the qualifying law degree can be taken at undergraduate level (entrants aged 18), rather than at graduate level as in the US, so students can come straight from high-school, where ‘A-levels’ are sat in their final year to enter university.8 Law School Admission Council, Inc. (1999) National Statistical Report: 2003-2004 through 2007-2008, at A-8.

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internationally and the high-profile failings of forensic science (McCartney, 2009, p.18), this problem is significant in both educational and practical terms. Particularly when considering the speed at which forensic science is developing and the significance this represents to the legal system, now more than ever the necessity for the legal profession to keep up with the scientists is of primary concern (McCartney, 2008).

It has become increasingly common for calls to be made for forensic scientists and legal professionals to end their ‘dialogue of the deaf’ and to communicate effectively (see House of Commons 2005; McCartney 2008; NAS 2009). This requires both legal professionals and forensic scientists to understand the vernacular and nomenclature of both science and law, as well as the working practices and customs of each group of practitioners. Yet, while these calls are easily made, there are fewer attempts to identify those who will ensure that this understanding is acquired. The National Academy of Sciences (2009) is one of the most high-profile recent reports calling for greater interdisciplinarity, stating that: ‘Judges, lawyers and law students can benefit from a greater understanding of the scientific bases underlying the forensic sciences’, (8-2) firmly placing the responsibility for imparting this understanding with pre-qualification legal educators:

“…it might be too late to effectively train most lawyers and judges once they have entered their professional fields… For the long term.., the best way to get lawyers and judges up to speed is for law schools to offer better courses in forensic science in their curricula” (NAS Report 2009:8-15).

The Committee recommended that to effect this change:

“Better connections must be established and promoted among experts in forensic science and legal scholars and practitioners… Law schools should enhance this connection by offering courses in forensic science, by offering credit for forensic science courses students take in other colleges, and by developing joint degree programs.” (NAS Report 2009; 8-17)

Such proposals are laudable, and yet leave most law educators with a daunting task; how to go about such remodelling of their educational structures? In discussion with forensic science and law lecturers on this topic, common responses include variations of the following:

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When undertaking any new challenge of course, it is always good practice to discover how others have previously surmounted the challenge. However, as Merlino et al (2008:193) point out: ‘No clear picture exists of the educational landscape with respect to interdisciplinary education about science in law schools’. So where does a keen law lecturer turn for inspiration or guidance? Further, it is not as straightforward as it may seem to well-intentioned committees when advocating such modifications to degree programs, to make significant changes, even without the additional complication of crossing disciplines. As Oberg (2009:405) warns:

“Newcomers often underestimate the challenges of interdisciplinary work and, as a rule, do not spend sufficient time to allow them to overcome differences and create common ground, which in turn leads to frustration, unresolved conflicts, and in the worst case scenario, discontinued work. The key to successful collaboration is to facilitate the creation of a climate that will stimulate the awareness of such challenges.”

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The NAS Report is just the latest to throw down a gauntlet to legal educators, and yet little reaction has been apparent amid law faculties. This ‘Lowering the Drawbridge’ project was therefore stimulated by a) the hope that there were legal educators in the UK who had successfully risen to such challenges already from whom lessons could be learnt and disseminated more widely; b) the knowledge that many forensic science educators included (with varying success) some basic legal education in their degrees and so had experience of the interdisciplinary process, but for whom this still often remained their bête noire and; c) the wish to build the connections and possible collaborative partnerships with forensic science educators. There should be optimism that legal and forensic science educators can work cooperatively to respond to critics and forge new paths in learning and teaching in both law and forensic science, creating an opportunity to take stock and enrich our disciplines, as Roberts (2007:21) exhorts:

“It is essential periodically to take stock of the unremarked incremental changes that build up over time to shift the ground beneath our feet. In times of rapid change more than ever, there should surely be periodic checks to ensure that our discipline has not ossified or been left behind. Nor is this only a question of pre-empting anachronism and irrelevance. We should constantly be on the lookout for new opportunities to enrich [law] teaching and scholarship.”

For: ‘If, after all, university scholars and teachers decline to keep their subject in good theoretical, pedagogical and practical shape, who else will be motivated or qualified to take up the challenge?’ (Roberts 2007:21).

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Teaching Law to Forensic Science Students and Forensic Science to Law Students – Conceptual Groundworkby Professor Paul Roberts9

Even to pose questions about teaching law to forensic science students, or teaching forensic science to law students, is to enter a conceptual minefield. So why worry about concepts? There is a perfectly understandable reluctance to engage with conceptual puzzles, and even an impatience with such apparent distractions and quibbles, when there is urgent practical business of teaching and learning to be getting stuck into. Aversion to preliminary questions of definition and method partly springs from the – entirely well-founded – intuition that conceptual disputes can be spun out interminably and with dubious profit. However, this objection suggests an argument for keeping conceptual issues in their properly confined place, not for ignoring them entirely. Fundamental conceptual problems are there, whether we choose to acknowledge them or not. Neither good intentions nor wishful thinking will protect those who stumble carelessly into minefields from harmful detonations.

The operative concepts for our purposes are ‘law’, ‘forensic science’ (or ‘forensic’ and ‘science’), and ‘student’. Each concept would benefit from a little effort devoted to conceptual elucidation. ‘Law’ can mean some or all of the following: (1) substantive legal rules; (2) the substantive legal rules of a particular legal jurisdiction; (3) a disciplinary subset of substantive law, such as Criminal Law, Land Law, Contract or Torts, etc.; (4) a disciplinary subset of the substantive laws of a particular jurisdiction, e.g. English Tort Law, Scots Criminal Law, etc.; (5) supra-national law, such as the Law of the European Union (EU), World Trade Organisation (WTO) Law, or European Human Rights Law; (6) a disciplinary subdivision of supra-national law, e.g. EU Criminal Law, EC Competition Law; (7) Public International Law (PIL); (8) a disciplinary subset of PIL, such as International Trade Law, Shipping/Maritime Law, International Humanitarian Law (IHL) or International Criminal Law (according to some definitions); (9) procedural law, as opposed to substantive law, e.g. the Anglo-American conception of the Law of Evidence; (10) some subset of procedural law, the most common binary division being between criminal and civil litigation, though in fact each of the substantive legal fields (4) – (8) has its own distinctive version of procedural law; (11) ‘the law in action’ (what really happens in legal proceedings, as described in socio-legal empirical accounts of legal process), in contradistinction to doctrinal ‘law in the books’; (12) Comparative Law, comparing and contrasting two or more of the foregoing; (13) Jurisprudence or the Philosophy of Law, investigating the deep structure, basic concepts and disciplinary terminology, institutions, patterns

9 Professor of Criminal Jurisprudence, University of Nottingham.

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of thought and reasoning, methodological tools, and fundamental values of ‘law’, generally or more narrowly construed in accordance with conceptions (1) – (12). This list is intended to be indicative rather than exhaustive. Whichever conception of ‘law’ is preferred (if only pro tem for the task currently at hand), its relevance for students of forensic science is easily demonstrated. It bears emphasis that the UK has multiple legal jurisdictions (the main ones being England and Wales, Scotland and Northern Ireland), and these jurisdictions are in turn increasingly affected by European Law (of varying kinds) and still broader trends towards cosmopolitanism in legal theory and practice. It is therefore highly pertinent to inquire: just what kind(s) of ‘law’ do forensic science students need to learn? There are also obvious subsidiary or follow-up questions: How much of that kind of law do they need? At what level should it be taught, and by whom? etc.

‘Forensic science’ is, if anything, even more conceptually flaccid and incontinent than law. It is worth recalling that ‘forensic’ literally means ‘pertaining to the law’ (from the Roman forum where legal business was contracted), so any kind of science legitimately qualifies as ‘forensic’ just insofar as it is turned to the purposes of the administration of justice. But what is a ‘science’? Contemporary Anglophone usage, in which ‘science’ typically equates to the ‘hard’ physical sciences, is both parochial and unhistorical. Other European languages remain closer to the Latin root (sciens, scientia) in treating ‘science’ as a synonym for ‘organised branch of knowledge’ or field of expertise. Attending academic conferences in continental Europe, lawyers and criminologists routinely greet each other and refer to themselves as fellow legal and criminal ‘scientists’. And the oddity (to English ears) of this convention should be mitigated substantially by recalling that ‘social science’ is hardly novel, or these days particularly controversial, terminology even in English-speaking countries.

These observations are directly pertinent to present concerns, because it is very easy to slip into the solecism of talking and – especially dangerous – thinking of ‘forensic science’ in terms of the CSI-subjects: crime scene examination, DNA, fingerprints, blood samples, toxicology, pathology, toolmarks, fibres, ballistics, questioned documents and the rest. Important though these sub-disciplinary specialisms undoubtedly are, it is equally clear that they far from exhaust the field of forensic science, even if we confine ourselves to sciences routinely encountered in litigation. These also include: accountancy, engineering, psychiatry, psychology and the behavioural sciences, paediatrics, social work, archaeology, anthropology, computing, statistics, and many other forensic applications of familiar disciplinary fields of expertise. In light of this diversity, it is reasonable to ask: what kind(s) of science do law students need to learn? And there are parallel follow-up questions to the ones previously addressed to law teaching for forensic science students: How much of that kind of science do they need? At what level should it be taught, and by whom? etc.

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Which brings me to the target audience of learners. Do we have in mind undergraduates, or postgraduate students? Single or joint honours? Full or part-time? Students in residence or participants on correspondence courses (with or without ‘top up’ study weekends and the like)? Those undertaking primarily liberal arts degrees, or those on essentially vocational programmes? Why not some combination of the two? Are we thinking of addressing home (and EU) students, or the ‘overseas’ market, or both simultaneously? Are the relevant ‘law’ or ‘science’ modules to be compulsory elements of tailored degree programmes, optional subject choices, or supplementary ‘bolt-ons’? Many educators (myself included) regard learning as a life-long experience. So why should we confine our attentions to those enrolled in formal HE programmes of study? Practising lawyers and forensic scientists alike are required to satisfy continuing professional development (CPD) requirements determined by an individual’s particular professional status. Adjudicators, too, require practically orientated education and training, delivered, for example, under the auspices of the Judicial Studies Board (JSB) or the Magistrates’ Association. It is only a slight stretch of conventional linguistic usage to describe all those with a professional interest as ‘students’ of legal and forensic sciences, even if we happen to have ‘doctor’ or ‘professor’ in front of our names or are respectfully addressed in our day jobs as ‘detective inspector’, ‘my learned friend’, Your Honour’ or ‘My Lord’.

Significant implications flow directly from these conceptual clarifications, even in the rudimentary form presented here. I will elaborate briefly on five of them. First, one should cultivate a healthy scepticism for any generalisation about teaching law to forensic scientists, and vice versa. At best, many such assertions will be incomplete and radically question-begging, and at worst they will be inadequate and positively misleading. Such generalisations are barely intelligible until one has clarified what type of law, and what kind of forensic science, and which category or categories of ‘student’ one has in mind. This implies, secondly, a pluralistic approach to programme design and accreditation, tailoring particular programmes or individual modules within programmes to the particular requirements and expectations of particular cohorts of learners at particular stages of their student and professional careers. If a ‘consumer’ model of education merits any credence at all, it plainly cannot be definitive for these purposes. Many categories of student will not know what they need to know or would benefit from knowing, and few if any will have the knowledge and experience across broad interdisciplinary vistas to dictate their own educational horizons. In any case, students are not the only ‘stakeholders’ one needs to consider. Potential employers, legal professionals, the courts, and the profound public interest in the proper administration of justice must also be factored into the design and accreditation of law/forensic science programmes, the more so in relation to those with a stronger vocational orientation marketed directly to intending forensic practitioners.

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Thirdly, it remains possible to formulate valid, and useful, generalisations about forensic science and law teaching, but they are necessarily confined to a fairly high level of abstraction. Thus, it may safely be asserted that all law and forensic science students would benefit from an education encompassing principles of logic and inference, probability (whether formalised in mathematical notation, or not), valid argumentation, scientific methodology, legal reasoning, principles for individuating, combining and evaluating evidence and establishing proof, professional legal and ethical responsibilities, and a sociological awareness of the processes, procedures and institutions comprising litigation of all types and duration. Abstract as these pedagogical desiderata are, they might nonetheless supply firm foundations for programme and curricular development, supported by appropriate literature (e.g. Anderson, Schum and Twining, 2005; Schum, 2001).

However, fourthly, there are reasons to believe that existing legal teaching materials and their associated classroom practices may not be especially well adapted to the task in hand. Indeed, I suspect that many coming at these issues from a forensic science perspective might be shocked to discover just how unfit for their purposes most law teaching on the traditional model actually is. For whereas traditional law degrees focus primarily (overwhelmingly?) on substantive law, forensic scientists tend to be more interested in legal process and procedure. And whereas law students spend most of their time parsing the judgments of appellate courts, forensic scientists are mainly concerned with first instance trials and the investigations and prosecutions which precede them. Trial-level processes and decision-making rarely feature in conventional law teaching, partly because detailed information about them is comparatively hard to find. Above all, law students are taught to identify and critically evaluate legal rules. The questions of fact and related issues of information management and analysis, which preoccupy forensic scientists (and most practising lawyers), are – by now, notoriously (Twining, 2007; Twining 1982) – largely absent from the traditional undergraduate law degree.

Here, no less than before, one must be wary of over-generalisation. There are intimations of considerable diversity of practice amongst UK law teachers. I also suspect that the post-1992 sector and vocational providers (LPC, BVC) are, generally speaking, more skills-orientated and less in thrall to the traditional law degree model than much of the ‘old’ university sector. Whilst a practical orientation to teaching and learning about litigation is refreshing, one should seek reassurance that ‘skills’ are being taught in an appropriately contextualised fashion, inculcating awareness of theoretical underpinnings and professional ethical responsibilities as well as instrumentally effective litigation strategies. Textbooks on the English Law of Evidence tend to replicate an orthodox model of the subject, narrowly focused on rules of admissibility, although there have been self-conscious efforts to break out of this sterile mould in recent years (e.g. Dennis, 1999; Roberts and Zuckerman, 2004). Moreover, a new breed of dedicated forensic science and legal

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process textbook (e.g. Fraser and Williams, 2009) is gradually emerging to catch the wave of the forensic science degree programmes that have rapidly multiplied in UK higher education during the past half-decade.

Finally, fifth, the conceptual complexities of teaching forensic science and law, rather than inspiring trepidation, should be embraced by university teachers as a series of valuable possibilities and opportunities. Focusing on the full range of potential student-learners and their various educational requirements, bespoke programmes may be devised and developed to meet particular students’ needs. Conversely, a quest for uniformity would be misguided: one-size most probably fits none. Thinking seriously about the diverse meanings of ‘law’ should concentrate minds on the types of law and legal process, together with their associated theories and methodologies, that particular categories of student would benefit themselves, and possibly in due course benefit others, from knowing about. Introductory courses on ‘English Legal System’ and the like barely scratch the surface of what might be taught, and much of their detailed content may be of dubious relevance to the particular students exposed to such modules.

Effective teaching of a subject (or group of subjects) as fundamentally interdisciplinary as ‘forensic science’ must surely place a premium on successful interdisciplinary collaboration, within and between HE institutions, quality assurance mechanisms and other stakeholders. Again, the temptation to presuppose reductive conceptions of forensics must be resisted. I was once taken to task during a conference plenary for describing fingerprinting as forensic science, on the basis that fingerprinting is retained in-house by the police whilst forensic science stricto sensu is undertaken by the Forensic Science Service (FSS)! None of us, I take it, is eager to be blinkered or dictated to by existing institutional arrangements and disciplinary taxonomies, many of which rest on little more than tradition or convenience. Law teachers in those universities with Forensic Science departments will know where to start looking for potential collaborators, but their inquiries should not end as well as beginning in the most obvious places. Even in the absence of any institutionally-designated group of ‘forensic scientists’, colleagues with forensic research interests and experience can often be found in Medicine, Psychology, Economics, Engineering, Computing, Mathematics, Sociology, Criminology, Anthropology, Philosophy – in any discipline, indeed, with potential applications to the law (which may well be any and every discipline).

A conceptually sophisticated approach to the challenges of teaching law to forensic science students, and forensic science to law students, presents an open invitation to university teachers to design and deliver the courses best suited to their own students, fully exploiting local opportunities for interdisciplinary collaboration and in accordance, naturally, with institutional priorities and constraints and applicable accreditation requirements. The social importance of the enterprise is

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beyond question, in my estimation, and every available indication suggests an insatiable appetite for education in the forensic sciences, from A-level students to Lords Justice of Appeal. The conceptual minefield could be transformed into a garden of learning boasting blooms of every hue and description. If we build it, they will come.

References

Anderson, T., Schum, D. and Twining, W. (2005) Analysis of Evidence. Cambridge: CUP.

Dennis, I. H. (1999; 4/e 2010) The Law of Evidence. London: Sweet & Maxwell.

Fraser, J. and Williams, R. (2009) Handbook of Forensic Science. Cullompton, Devon: Willan Publishing.

Roberts, P. and Zuckerman, A. (2004; 2/e 2010) Criminal Evidence. Oxford: OUP.

Schum, D. A. (2001) The Evidential Foundations of Probabilistic Reasoning. Evanston, Illinois: Northwestern UP.

Twining, W. (1982) ‘Taking Facts Seriously’ in N Gold (ed), Essays on Legal Education. Toronto: Butterworths.

- (2007) ‘Taking Facts Seriously – Again’ in P. Roberts and M. Redmayne (eds), Innovations in Evidence and Proof. Oxford: Hart Publishing.

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The Surveys

In early 2009, two surveys were emailed to law and forensic science lecturers, to gather information on the teaching of law to forensic science students, and forensic science to law students (see Appendix for the survey). The responses to questions are represented graphically with brief commentary. Remarks that were provided for elaboration on the surveys are included in the discussion of the workshop below.

Question 1. Law/ legal studies on forensic science degree programmes: 33 respondents (forensic science lecturers) from 25 UK HEIs.

Do you teach

law to your s

tuden

ts?

Is law

teach

ing importa

nt to your p

rogramme?

Is law

taught b

y law acad

emics

on your p

rogramme?05

10152025303540

Not Sure

No

Yes

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11%

86%

3%

How much law teaching is there on your programme?

Not enough Just Enough Too Much

Clearly, the majority of forensic science degrees include some legal education, mostly conducted by legal academics. It is interesting to note however, that some respondents claimed that law teaching is not important to their programmes of study. There are perhaps questions to ask concerning how much law is required in a forensic science program – when forensic science respondents claim there is ‘just enough’ or even, ‘too much’ law, how much is ‘enough’? If forensic science is science in the pursuit of justice – should there be a lot more law in these courses? There are perhaps also questions to ask regarding those who should be providing the legal education. Can forensic science lecturers provide this or should it be the preserve of law lecturers? There are problems with both approaches: do law lecturers understand sufficiently what law forensic science students require; do forensic science lecturers understand what law is necessary? This project aims to find some more concrete answers to such questions and find the opportunities for cross-faculty work.

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Question 2. (Forensic) science on law programmes: 22 respondents 18 UK HEIs (of 89).

Can law students take a module on forensic science on your programme?

Are there opportunities to take any 'science' modules?

0

5

10

15

20

25

Not Sure

No

Yes

It is the case that the majority of university law students had ‘dropped’ science much earlier in their in education: 18 per cent of Leeds first year law students (intake of 2008) have one (rarely more) science A-levels (see McCartney & Cassella 2008a). Their avoidance of science subjects can clearly continue at university, with little opportunity for law students to take forensic science, or any science module during their degree. Yet if law students are not studying any science beyond mid-high school level, and then can avoid any further science at pre- or post-qualification stages of their education, when are lawyers learning how to handle ‘evidence’ and interpret information – the mainstay of their occupation? If becoming a criminal law practitioner, lawyers may often be required to assess scientific evidence, yet have no educated basis upon which to do this: “math and science are a black hole in legal education” (Gabel 2010:257). Even if considering the law degree a liberal arts degree, and not vocational, there are wider benefits of a ‘broadly conceived’ law degree in tackling scientific illiteracy among the general population.

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The Workshop – A Summary

Discussion at the workshop quickly revealed that the specific issues under consideration comprised just a sub-section of a host of issues that emanate from the highly complex array of aims and interests (and stakeholders) of these two disciplines,10 only some of which were complementary. It was readily apparent that glibly stating that academics need to find the time to design more pedagogically robust material that can cross disciplinary boundaries was obtuse, if not impertinent, given the levels of dedication and effort already demonstrated by the workshop attendees and many other forensic science and law academics across the UK. What could be easily concluded without much contestation is that achieving anything like true interdisciplinary educational aims, requires a far more fundamental re-thinking: it will require a new common language in order that those academics working in diverse areas of academic pursuit can understand one another. This is an essential prerequisite before ‘systems’11 can be made to communicate (to facilitate student and/or staff movement across schools/ faculties etc.), and ultimately, students can be taught to study, converse and be understood across law / science borders.

Finding the route(s) to true cross-disciplinary educational experiences for our students is highly complex, however this did not preclude interesting and insightful discussion throughout the workshop, some of which is summarized below. The workshop was not designed, nor could it have been possible to expect in just one day, to come to firm conclusions about solutions that could then be easily implemented (nor of course, could we tackle myriad causal issues of the law/science divide that lay without the realm of the higher education system). The aim of the workshop was not to produce a template or ‘best practice’ guidance for academics, but to begin the process of understanding how to recognise ‘best practice’ and what form any guidance may eventually take. The organisers hoped to scope out the ‘problem’ (if it is conceded there were one) and a range of potential future actions which may enable colleagues to begin collaborations and cooperative working. As could be expected, there were a range of concerns and a variety of opinions, and rarely, a consensus. We hope here to reflect some of the wide-ranging views and highlight areas where consensus was found. The ambition then is that those attending, and indeed those reading this

10 ‘Forensic science’ is acknowledged to comprise a variety of disciplines, being simply the application of any scientific field of knowledge to law. Similarly, ‘law’ encompasses a wide range of possible areas of study. However, for sake of brevity and clarity, both ‘forensic science’ and ‘law’ here are treated as discrete disciplines. The authors apologise for this coarse approach. 11 Such as ‘central’ services found in administrations across all universities – a point of frustration [that faculties etc. cannot communicate with one another effectively and collaborate] that was returned to frequently throughout the workshop.

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summary, will be motivated to exchange ideas and collaborate with colleagues across the disciplines so that mutually beneficial educational goals can be fulfilled.

The workshops were split into three sessions. The starting points are highlighted before a short summary of the ensuing discussion.

Session Oneo Is it necessary for forensic science students to study law?o What is the current situation with respect to law teaching within forensic science courses? o What should be taught and by whom?

Is it necessary for forensic science students to study law?Forensic science courses may be considered more ‘vocational’ science programs than many science degrees offered by universities. The perception that there is a career pathway for graduates of forensic science courses means that many degrees will incorporate a strong emphasis on training students to fulfil the ‘role’ of a forensic scientist (although these are many and diverse). However, there was a consensus that forensic science students need to understand the job of a forensic scientist within the legal process and what may be expected of them in various roles they may encounter. With such a vocational degree, it would then seem essential that there was a thorough understanding of the context in which their future careers may be situated. This would necessarily, to a varying degree, involve the law and the legal system (that being the ‘forensic’ in forensic science).

It is strongly inculcated into science students studying a forensic pathway that they are to present factual, unbiased evidence to the Court and if it is appropriate they may offer an opinion based upon their experience and rank in the structure in which they work. It is not the concern of the scientist and not their remit to make any supposition about those individuals involved in any case. In order then to be a ‘good’ forensic scientist, one can perhaps leave the ‘legal’ side of things to the legal professionals, and simply ‘stick’ to their science.

There are strong arguments that the best forensic scientists will have a deep understanding of the ‘forensic’ element of their profession. To understand what procedures/ tests etc. are required in any given investigation, the scientist needs to be able to isolate the question it is they are attempting to answer. That question will very often be framed as a legal question (though not

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always). For example, if a forensic examiner understands that the police have arrested a man for murder, then they can prepare themselves to answer more fully questions that will undoubtedly arise when examining exhibits from the scene or items seized, such as potential weapons or clothing worn by suspects and victims (e.g. is there blood present? How much and where, whose is it etc.? Is there any significance to the blood from an investigative perspective?). Indeed, it is often the job of the forensic scientist to discern whether there is a ‘legal’ problem to be solved at all (i.e. at the scene of an apparent suicide or upon recovery of some bone fragments). As one forensic examiner remarked, they didn’t truly understand their role as a forensic scientist until they studied law because they then understood why they were doing certain tests and what other tests may be required.

Very often, a forensic scientist will work on a case, which never results in them having to appear to give evidence. Their greatest value is most often in advising others: what needs investigating; who is a suspect etc. Their value then is in providing guidance to investigators and other legal professionals. An understanding of what these other professionals need to know, will make their advice that more valuable and astute. One of the greatest disappointments of many forensic scientists is indeed that their advice is not sought more often, and at earlier opportunities. Indeed, recent reforms to the legal process have attempted to instigate more ‘pre-trial’ discussion between experts, as this has proven effective in assuaging some of the difficulties of expert evidence in court. A proficient forensic scientist then will be able to present their findings to a legal audience and give them guidance, with their understanding of what the legal professionals are trying to achieve and the laws within which they are operating.

So while there is great merit in the argument that forensic science students need principally to be good scientists, it cannot be denied that a fuller understanding of the ‘forensic’ aspect of their job would make them better ‘forensic’ scientists. However, as ever, there are always demands on curricula that are already fit to bursting point. For many, the controversies surrounding forensic science programs has not been the lack of law, but the lack of science.12 For many degrees, science will be their cornerstone and the task of educating someone to graduate standard in a variety of disciplines is more than challenge enough. It is doubted by many that forensic science programs are actually sufficiently ‘scientific’, so incorporating more ‘non-science’ elements may be counter-productive. Many will continue to argue that forensic science graduates need a diet of pure science, and they can learn to apply this to the forensic arena after graduation – that the ‘forensic’ element

12 See Kobus & Liddy 2009.

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can be taught by their employers, and gained through experience. Whilst some forensic science lecturers claimed that their students were well versed in the law, many others lamented that their students had no understanding of criminal proceedings, and that their goal was simply to provide them with some rudimentary grasp of the basics, while others claimed that most law was simply irrelevant for forensic science students: “it’s instantly forgettable”! Opinion clearly differs over how much law is required by forensic science students, and the ability of many forensic science students to complete the law assessments, as they differ markedly from those in their science modules. This was often the motivation behind forensic science lecturers taking the law classes: they hoped only to cover what was strictly necessary, and in a form digestible to science students: a bespoke course. Those that sent their students to the law school for their legal training often felt that their students were ‘thrown in the deep end’ and often struggled (11 of the 33 forensic science respondents explained that the law school took their students with no input at all from their department) – though others countered that the students found it stimulating to be among full time law students.

What is the current situation with respect to law teaching within forensic science courses?

Most of those attending the workshop attested that they already teach law to their forensic science students. Most often, this translates into a single module on the basics of the criminal process and criminal justice system. Seven of the 33 forensic science lecturers who responded to the survey claimed that there was no involvement of legal academics with their program. Many others explained that they simply made compulsory the basic ‘English Legal System’ type modules in the first year law program for their first year science students. There were also reciprocal arrangements whereby an introductory module on forensic science was provided by the science faculty staff for law students, in return for a ‘Science in Court’ module for forensic science students run by the law school. Forensic science lecturers also claimed that they were able themselves to introduce relevant legal aspects to their students as they were proceeding through their curricula. For example, they would inform them of the legal aspects of casework and discuss with students where appropriate legal matters pertaining to, for example, drugs, alcohol, sexual offences etc. For some, they explained that they would have a ‘guest lecture’ during the three year course, covering something pertinent, such as ‘expert evidence’, either in addition, or as their sole legal education provision. More common, is a ‘mock court’ scenario, with forensic science students taught how to present evidence in court using mock trials. For many, there was law school involvement with such events, either using the staff of the law school, or sometimes their students.

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What should be taught and by whom?

It is clear from the survey responses and workshop that there is no consensus on what should be taught to forensic science students, and by whom. Most commonly, forensic science lecturers believed that they could convey the ‘law’ to their students; while legal academics believed that legal education was best left to legal academics. Such an approach is quite understandable, and was mirrored when tackling the obverse of this question. This lack of consensus presents an obvious stumbling block in trying to develop pedagogic materials to assist educators and students. Most obviously, forensic science students need to have an understanding of the legal regimes surrounding investigations and their role in the investigative process, as Roberts (2009:447) makes clear: “Forensic scientists are subject to [ ] legal strictures no less than any other professional investigator, and they therefore have powerful incentives to know the legal rules which apply to their situation and to strive at all times to conduct themselves in accordance with the law.” A basic grasp of the Police and Criminal Evidence Act among others would then assist them to understand police powers during investigations. There are of course other Acts of Parliament and legislative instruments, which will have a direct bearing on the work of forensic scientists, including the Criminal or Civil Procedure Rules, which set out the role of an expert witness. Learning this aspect of law: how police conduct investigations and the legal regime within which they operate; the operation of the criminal/ civil process, as well as the court process and the duties of the forensic scientist would all be essential learning outcomes of any forensic science degree program. The question then arises: ‘into how much depth does the student need go into these legal fields’?

Some attendees questioned whether the relevant professional and regulatory bodies could provide guidance or requirements. For example, the Law Society regulates the LLB qualifying law degree, stipulating what modules must be delivered to have accredited status, although success in modifying their stipulations is extremely limited. Attempts to accredit forensic science degree programs have had an inauspicious start, with the accreditation process still very uncertain, and no requirements in current regimes to provide legal education beyond the skills required to deliver expert evidence in court. The first step must then be to reach a consensus on the ‘ideal’ legal components of a forensic science degree. It may be that employers dictate their terms in such a scenario.

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Session Two

o Is it necessary for law students to study forensic science? o What is the current situation with respect to forensic science teaching within law courses? o What should be taught and by whom?

Is it necessary for law students to be taught about forensic science?

This session examined what scientific education law students ought to receive – working on the premise that there should be some element(s) of science available to those students who either want it or need it for their future careers (or should it be mandated?). If law graduates were to possess some rudimentary scientific knowledge, this could assist future professionals working in the criminal justice process - who were not scientists - to more confidently and adeptly assess scientific issues raised during investigations or prosecutions. The lack of a scientific background and the consequent difficulties often experienced by legal professionals handling scientific issues is all too apparent to those working in the criminal justice system. There are then clear and powerful external drivers (including miscarriages of justice), which could motivate efforts to introduce science into law degrees.

It would be wrong however, to give the impression that there is universal acceptance that ‘science’ is a necessary element of a law curriculum. Clearly it may not be appropriate for every law student to delve into forensic science too deeply, particularly those who do not wish to enter into the legal profession, (or indeed may wish to pursue a legal career that would not involve forensic science). There is an understanding that most law graduates will not enter the criminal justice arena and so it may be entirely inappropriate to make compulsory any scientific training that they will not require to do their job. As with all subjects, there is a real issue of ‘curriculum overload’. If science were to be introduced, what should be left out to make room? There are already many demands made of the law curriculum by regulators (i.e. the Law Society), and employers, and many more ‘legal’ topics that many would consider ‘essential’ that are omitted due to pressures on the timetable.

There is some acceptance however, that a basic grounding in science could be relevant for ANY undergraduate student, pursuing almost any career, and that there are important transferable skills and knowledge to be gained. The current lack of scientific education at university level for law students disabled those who did wish to pursue a career either as a legal professional, or indeed

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pursue any further studies or a profession requiring some scientific knowledge or understanding. There was also clear agreement that there is insufficient forensic science being delivered and taught to those students on legal courses who did have an interest in practicing law (either criminal, or any other area of law). This may be explained partially by the ‘aversion’ to science seen among law undergraduates, also extending to the academics. Many legal academics themselves will have not studied science for some considerable time and may naturally lead to reluctance to introduce science into a law curriculum (or more probably, simply a lack of appreciation that anything is ‘missing’ or a difference of opinion over what is ‘missing’). It may be a tall order for specialists in law, who have not studied science since high school, to introduce teaching materials on science. Just as legal professionals call upon forensic scientists to deliver ‘science’ when required in the legal process, it may be then that forensic scientists need to be engaged when it is necessary to deliver teaching in the area.

There was a consensus that it would be helpful to the legal community, were there to be some basic understanding among participants in the legal process, of the basic underpinnings of science (such as the scientific method). This may assist those to understand – or how to go about finding out how to – the scientific evidence presented to them. The probative and evidential value of forensic science clearly often needs to be better understood. Sometimes what would be considered the ‘absolute basics’ of the work conducted by the forensic science community can be misunderstood, even down to the continuity and integrity of evidence taken from a crime scene. There is also the ongoing issue surrounding how Courts are to determine whether scientific evidence presented is of a robust quality and that the ‘expert’ delivering is competent to do so and does so in a manner that facilitates, rather than hinders the judicial processes. Statistics in particular need attention, but again, it may assist those who are presented with scientific evidence (most often presented in a statistical form) to begin to understand the evidence before them, or even to spot common errors or misunderstandings, to have a rudimentary understanding of statistics and statistical method.

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What is the current situation with respect to teaching forensic science within law courses?

Many law lecturers13 expressed frustration at the (perceived) obstacles to teaching forensic science to their law students, many believing they would be required to deliver science materials themselves: “I would like to incorporate aspects of forensic science but don't feel confident about the science aspect”. Most law lecturers admitted that the only time that forensic science entered their teaching at all was when dealing with expert evidence during evidence modules (and then only in relation to the laws regarding the reception of expert evidence). However, many denounced the scientific awareness of their law students: ‘the students lack even the most basic knowledge’. This was contrasted by those teaching in Scotland, where students have had to continue science studies for the duration of their high school education. While most admitted to having no, or inadequate teaching of forensic science (or the basic principles of science or statistics for example), those that did have some provision expressed great student satisfaction with the modules: ‘this module is much in demand and popular with students’; ‘our most popular elective’. While the modules were popular with students, there were issues raised over the standards or levels between law modules and science modules, particularly if they carried the same credit weighting. There appeared some suspicion that science modules could be easier or harder than law modules and assessments were varied, meaning that some students could benefit or be disadvantaged by the lack of comparability. Reports of law students receiving 95 per cent in a science module where such a mark would be virtually unattainable in any law modules, caused concerns. Clearly, the assessments and levels of marking etc. and credits for modules from other disciplines is an issue that would need resolving.

What should be taught and by whom?

Discussion and survey feedback in respect of what should be included in any forensic science teaching to law students, ranged widely between simply raising ‘forensic awareness’, or conveying the basic underlying principles of science, to engaging in contentious scientific debate and undertaking introductory science modules, including laboratory experience. Those keenest on spanning the disciplinary divide believed that law students would benefit from a thorough grounding in scientific disciplines and knowledge of the working life of a forensic scientist. Others suggested that a brief rundown of different techniques popularly employed (such a DNA and fingerprints, footwear, toxicology etc.) was more than adequate. The opposite end of the spectrum

13 This refers only to those law lecturers who responded to the survey and/or attended the workshop. This is in no way a representative sample of law lecturers as it will clearly represent those who most probably already have an interest in the field of law/science, ‘forensic science’ and were motivated to respond/ engage with the exercise.

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countered that there may be more important things to include on the undergraduate law degree that should take precedence over forensic science. If you were to ask a cross-section of law lecturers what they would like to see on the undergraduate law degree, you will get almost as many different answers as lecturers, a similar response no doubt predictable among forensic science lecturers. This does not address however, the fact that several high profile and influential reports have called for greater interdisciplinary teaching between law and forensic science, primarily to assuage fears of continuing numbers of miscarriages of justice with ‘science’ implicated.

While it was agreed that students, particularly any wishing to pursue a legal career, should understand the law surrounding expert evidence, there was less agreement over whether this should extend to the law regarding police investigations and forensic inquiry (including issues such as continuity and integrity). The value of teaching case histories where the law and forensic science had combined to result in a failure of justice, e.g. the conviction of Barry George for the murder of Jill Dando; the investigation and trial of the alleged murderers of Damilola Taylor etc. , was emphasised however. There was also deliberation over whether law students should understand the science behind forensic techniques (suggestions that they could have a ‘dummies guide to…’ for various forensic disciplines), or whether they should simply know what questions to ask of the experts and how to assess their credibility. It may be difficult however, to determine what questions to ask an expert without a grasp of the limits of the evidence and the science underlying a technique such as DNA profiling, or even to know when an expert could be of assistance or is required. It was agreed however, that law students are not sufficiently instructed in how to deal with ‘evidence’ or ‘facts’ (mirroring a protracted debate among evidence scholars).

Many declared that law students had poor evaluation skills altogether, this merely extending to scientific facts as well as other types of evidence, despite an appreciation of probative value being an essential skill for a lawyer. In a lengthy survey response, reproduced here in part, Dr. David Carson, a law lecturer and an advocate for developing inter-disciplinary law and psychology education, spelled out his vision of the problem and solution:

"The core problem is the intellectual narrowness of the law degree… dominated by cognitive, knowing, objectives. Whilst there are distinctive, and critically important, doing skills (e.g. legal research and detailed analysis of statutes and case law precedents), these are focused upon in one year, the first, and then honed over the next two albeit on different topics. An 'add-on knowledge' mentality (whether law and forensics or law and psychology) is never going to allow legal studies to become genuinely inter-disciplinary.

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Law students need, not just for richer intellectual stimulation but also to be more creative in the range of occupations they enter, a much broader range of intellectual skills, such as in scientific methodology, in broader inferential reasoning, probability theory and presentation. Being aware of what other disciplines can offer, perhaps as expert evidence, is no substitute for abilities to think differently, to possess a forensic or sociological imagination. Equally it is demeaning to encourage other disciplines to think that knowing 'the law' on a topic is all they can, or should, be competent with. Investigators and forensic scientists need (and can be given) much more from lawyers than knowledge of the exclusionary rules of evidence. If there are to be developments… it should be through a focus on forensic investigation, assessment, presentation and proof. That would require the development of a broader range of intellectual skills, not just the broadening of the curriculum. That would focus upon the many problems with our legal system…. "

There was again disagreement over whether legal academics should take responsibility for this. While there was almost unanimous opinion that forensic science lecturers should not be left to instruct science students in the law, there appeared to be less apprehension when considering whether law lecturers could teach ‘basic’ scientific principles. However, it was stressed that any experiential learning, or more advanced science, would be far better taught by a scientist. Nearly all elective science modules presently available to law students are taught in science departments with little interaction between staff and departments over content, assessment etc. This is regrettable, but many interpreted this as explicable by a general lack of communication or any ties between science and law faculties. As reports have bemoaned, there is a cultural divide in universities between ‘hard’ sciences and the ‘softer’ sciences (if law can be considered a social science for a moment) departments and staff. This landscape makes collaboration over modules difficult, time consuming, and administratively complex for academics who wish to bridge the divide. As one delegate explained figuratively: ‘first we need small walls between departments, not the big ones that we have now.’

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Session Three

o How to satisfy these needs? o Who needs to be involved?o How to effect change?

How to satisfy these needs?

It was the aim of the project team to attempt to avoid leaving the workshop with lots of questions or problems, with no time afforded for the generation of answers or solutions. The last session then asked delegates to engage in discussion on how we might address those issues raised during the workshop, and what next steps were required. The most immediate obstacle to responding to calls to build greater links between law and forensic science undergraduate education is that, as the workshop and survey responses attest, there is presently no consensus over what is required by each cohort of students. This discord among educators is reflected among students themselves, as demonstrated in the research into forensic science degrees undertaken by Skills for Justice. They report that when commenting upon course content:

‘Comments were wide-ranging and in many cases contradictory. Some students applauded the high science content of their degree programme, whilst others complained that there was not enough science content. Similarly, some suggested that there was too much content based on understanding the law, whilst others indicated that there was not enough of this’.14

Secondly, there is no ‘best practice’ model to be followed beyond vague recommendations in the 2009 National Academy of Sciences report. As Roberts points out in the Foreword, there needs to be a great deal of conceptual groundwork before any interdisciplinary route-map can be sketched. What is clear is that there is demand for this groundwork to be carried out so that educators in both disciplines can continue, indeed even commence collaborative work, building bespoke modules for students based on sounds pedagogic principles and addressing the needs of each cohort – which can and will, of course, vary considerably according to such variables as degree type, level, resources available etc. (teaching and assessment naturally being tailored to the students).

14 Skills for Justice 2009. p.48.

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Who needs to be involved?

Forensic science and law academics need to begin a discussion with one another, with the students, professions, regulators, administrators and other stakeholders. Delegates of the workshop suggested the establishment of a collaborative multi-disciplinary forum or network for the free flow of information between forensic science and law academics and practitioners. How this forum or network would be formed, and by whom, was a harder question to answer, although there were firm ideas that initially a bridge between the HEAs of the Physical Sciences Centre (for forensic science) and UKCLE (for law) should be constructed as a first step.15 There should also be input from the Law Society, as regulators of the LLB degree, and the Forensic Regulator, although his role in education of forensic scientists is unclear. Together, they could however, provide valuable input into what content is required for course syllabi. Skills for Justice could also be involved, along with the Forensic Science Society, as accreditors of forensic science degrees, and authors of National Occupational Standards (‘NOS’) for forensic scientists. Many delegates suggested that there be a ‘NOS’ as a starting point, setting out the minimum legal knowledge required by a forensic practitioner. This would then feed into the curriculum and syllabi design. Similarly, the QAA, which sets the benchmarks for degree programs, could set a benchmark for both law and forensic science degrees, which stipulated the nature and extent of interdisciplinary knowledge required. Skills for Justice could also take a significant role in ensuring that employers’ voices could also contribute to discussions.

However, no demands for law students to study science (or vice versa) are presently made by any of the bodies associated with law training or practice, which may prove problematic for those law colleagues who wish to alter the status quo. Until the regulatory bodies themselves begin demanding more scientific knowledge from legal professionals, science will always remain an ‘optional extra’ in an already over-burdened law curriculum. University validation processes therefore are unlikely to specify that science, and in particular an understanding of forensic science, is necessary if very few students will ever make use of the knowledge and skills gained.

There was discussion over how significant progress was to be achieved in a changing landscape of higher education. Although resource issues were highlighted, it was felt that sharing of ideas and templates, and ensuring that there were not uncoordinated efforts across the country, with much duplication of work, meant resources could perhaps be managed more effectively (such a role could

15 This of course would be impossible if the announced closure of the HEAs goes ahead as planned.

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be undertaken by the HEAs?). There was also mention of tapping into funding for research-led teaching innovations, such as OER16 funding etc. Interim measures, including setting up a network of academics prepared to act as guest lecturers in other departments, could act as an immediate stopgap. It was also suggested that immediate steps could be taken on some modules to increase interaction between law and forensic science students – including law students in forensic science mock cross-examinations etc. One thing was certain: academics would require the support of their Heads of Departments and senior University management. It was reiterated time and again that resources (largely in terms of time and the workload for already over-stretched academics) would be required and these would not be forthcoming if the university management were not fully supportive of the enterprise.

How to effect change?

The last question of the day then required delegates to address how we could go about furthering the agenda commenced with this project. As may perhaps be expected, there was lots of discussion focusing on the many barriers and obstacles that may hinder progress or stymie efforts. These included practical issues such as the geographic locations and distances between many schools (indeed, some universities, such as the University of Leeds, does not have a forensic science department). Timetabling issues, as well as the harmonising of assessments were also mentioned. Finding time for academics to do the essential groundwork was also viewed as a stumbling block. This would not be resolved unless the attitude of the HEI was fully supportive. There was also conjecture that the majority of academics would not see the value of the enterprise. Overcoming reluctance and locating enthusiastic collaborators may prove problematic.

Despite such barriers, delegate feedback was overwhelmingly supportive, with much enthusiasm for the continuation of the discussion commenced. Some expressed sympathy for the aims of the project, while maintaining that the obstacles were insurmountable. However, there was also a groundswell of opinion that the barriers should not be permitted to stop the project at such an early juncture, and that effort should be made to further the debate. Comments were made that if the enthusiasm in the room were to spread, (and experience suggests that students would not require a great deal of encouragement to engage if the materials developed were suitable and interesting), then all that would be required was to get ‘management’ on board. The workshop then ended with the entreaty that delegates should spread the word and ‘go forth and multiply’. 16 Open Educational Research – for example, the ‘Forensic Science for Law Students’ project by McCartney and Cassella on JorumOpen.

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Preliminary Conclusions

The work conducted by the scientific community can sometimes be misunderstood, misinterpreted, and/or misrepresented by lawyers and scientists alike. The probative and evidential value of forensic science clearly often needs to be better understood by legal professionals while controversy continues over ‘unreliable’ forensic evidence utilised during the criminal process. The 2009 National Academy of Sciences Report is just the latest to throw down a gauntlet to educators to take preventative action and bridge the science/law divide at undergraduate level, and yet little reaction has been apparent amid law and science faculties. This ‘Lowering the Drawbridge’ project was therefore stimulated by a) the hope that there were educators in the UK who had successfully risen to such a challenge already from whom lessons could be learnt and disseminated; b) the knowledge that many forensic science educators included (with varying success) some basic legal education in their degrees and so had experience of the interdisciplinary process, but for whom this still often remained their bête noire and; c) the wish to build the connections and possible collaborative partnerships with law and forensic science educators.

Not all commentators are optimistic that the present difficulties with specialisation will be overcome soon, indeed, some believe it may be insurmountable: “Ignorance of fields outside one’s speciality is inevitable.” (Latham 2010:34.) Such sentiments may be self-fulfilling prophecies if the academy does not take up the challenge to bridge the law/science divide in higher education. Inertia within regulatory bodies and higher education management provide sufficient deterrent for those law colleagues who may entertain thoughts of tinkering with the status quo. Perhaps until the educational and legal regulatory bodies demand more scientific knowledge from legal professionals, science will remain an ‘optional extra’ in an already over-burdened law curriculum and vice versa.

There are potentially many other barriers and obstacles that may prevent or slow progress. These include practical issues such as the geographic locations and distances between many schools (indeed, some universities do not have both a law and a forensic science department). Finding time for academics to do the essential groundwork was also viewed as a primary stumbling block. There was also conjecture that the majority of academics would not see the value of the enterprise and overcoming reluctance, or locating enthusiastic collaborators may prove arduous. Academics expressed the sentiment that in this area, there were presently no sticks to avoid, nor any carrots to

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be found, so therefore little motivation. There is also perhaps a risk that we expend precious effort upon a wild goose chase for an ‘educational elixir’ for the ‘law/science’ rift, which may be partly based upon false conceptions of both ‘science’ and ‘law’:

“Certainly changes in the education system might go a long way to closing the breach between the two cultures…. But the gap between the two cultures also results from a particular conception of science and scientific knowledge, a conception with enormous influence still, even if science does not actually fit it…” (de Melo-Martin 2008:9).

Indeed, the project team are not searching within their departments for an educational panacea to a problem with many potential variables that need attending to before a cure, or an effective vaccination can be claimed to have been developed: “money and power are the oldest, simplest, and most common sources of friction between social groups, so no doubt part of the law-science conflict is explained in this way” (Condlin 1999:184).

Yet the project team believe there should be optimism that legal and forensic science educators can work cooperatively to respond to critics and forge new paths in learning and teaching in both law and forensic science, creating an opportunity to take stock and enrich our disciplines . Despite the possible size and complexity of the task ahead, the organisers found much enthusiasm for the continuation of the project, with a groundswell of opinion that (perceived or real) obstacles should not be permitted to stymie efforts. There are powerful external drivers which should motivate the introduction of science (and statistical method) into law degrees. Miscarriages of justice involving forensic evidence have provided plentiful opportunity for the legal and scientific communities to reflect upon failings and seek preventative medicine. Most often, lawyers have found ‘convenient fall guys’ (Walker & McCartney 2005) in experts giving testimony, however:

“one might question whether the mechanisms of criminal justice must also shoulder some responsibility. If judges feel unable to assess expert evidence, how is justice to be secured, through avoiding, or unduly simplifying issues and reducing the possibility of legitimate challenge by procedural or cost diktat… A better response is to examine whether training in forensic science offered by the Judicial Studies Board, or indeed law schools, is sufficient. With the legal system increasingly dependent on science and technology, educational courses on forensic process must necessarily be part of core training for all legal professionals.” (Walker & McCartney 2005:129).

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It may assist those who are presented with scientific evidence to begin to understand the evidence before them – or even to spot common errors or misunderstandings, or make an ‘educated guess’ about the reliability of a technique, to have a rudimentary understanding of the scientific method and basic statistics. Likewise, it would assist all forensic science graduates to have a full and sound understanding of the ‘forensic’ aspect of their profession, requiring at minimum, some basic grounding in law. This should not beyond the wit of faculty to introduce. As Latham (2010:34) exhorts, we are not interested in turning lawyers into scientists and vice versa, but building a foundation upon which they can build during their professional lives: “Instead of melding the two cultures, we need to establish conditions of cooperation, mutual respect, and mutual reliance between them.”

The ambition of the ‘Lowering the Drawbridges’ project is to stimulate both law and forensic science educators to lower their drawbridges and seek mutually beneficial solutions to common educational problems. This will not only reap benefits for students, but the legal/ forensic science professions of the future, and ultimately, will assist the criminal justice system in its aims: “A broader openness and greater understanding of math and science in the legal field would perhaps lead to fewer wrongful convictions” (Gabel 2010:256.) If the enthusiasm of the delegates at the workshop were widespread, then law and forensic science educators can indeed assist with the building of a mutual understanding between forensic scientists and legal professionals, a step on the road to answering calls for the professions to minimise some of the risks associated with the use of forensic science in the criminal process. As Condlin (1999:183) wrote over a decade ago, when referring to the reluctant bedfellows of law and science: “Not working effectively with one another is no longer an option for either discipline, if it ever was”.

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“A conceptually sophisticated approach to the challenges of teaching law to forensic science students, and forensic science to law students, presents an open invitation to university teachers to design and deliver the courses best suited to their own students, fully exploiting local opportunities for interdisciplinary collaboration and in accordance, naturally, with institutional priorities and constraints and applicable accreditation requirements. The social importance of the enterprise is beyond question, in my estimation, and every available indication suggests an insatiable appetite for education in the forensic sciences, from A-level students to Lords Justice of Appeal. The conceptual minefield could be transformed into a garden of learning boasting blooms of

every hue and description. If we build it, they will come.”

Professor Paul RobertsProfessor of Criminal Jurisprudence, University of Nottingham. 2009

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References & Relevant Reading

American Academy of Forensic Sciences. 2009. Forensic Science Educational Program Accreditation Commission at: http://www.aafs.org

Anon. 1995 ‘Developments in the Law – Confronting the New Challenges of Scientific Evidence’. 108 Harvard Law Review 1481.

Broeders. A.P.A. 2006, ‘Of earprints, scent dogs, cot deaths, and congnitive contamination – a brief look at the present state of play in the forensic arena.’ 159 Forensic Science International, 148-157.

Caudill, D.S. 2003, ‘Advocacy, Witnesses, and the Limits of Scientific Knowledge: Is there an ethical duty to evaluate your expert’s testimony?’ 39 Idaho Law Review, 341.

Cole, S. & Dioso-Villa, R. 2007, ‘CSI and its effects: Media, Juries and the Burden of Proof.’ 41 New England Law Review 435.

Condlin, R. J. 1999 ‘What’s Really Going On? A Study of Lawyer and Scientist Inter-Disciplinary Discourse’ 25 Rutgers Computer & Technology Law Journal, 181.

de Melo Martin, I. 2010 ‘The Two Cultures: An introduction and assessment’ 32 Technology in Society, 5-9.

Findley, K. A. 2008 ‘Innocents at Risk: Adversary Imbalance, Forensic Science, and the Search for the Truth’ 38 Seton Hall Law Review 893

Gabel, J.D. 2010, ‘Forensiphilia: is public fascination with forensic science a love affair of fatal attraction?’ 36 New England Journal on Criminal and Civil Confinement 233.

Garrett, B. & P. Neufeld, 2009, ‘Invalid Forensic Science Testimony and Wrongful Convictions’ Paper 137 University of Virginia Law School Public Law and Legal Theory Working Paper Series, http://law.bepress.com/uvalwps/uva publiclaw/art137

Gershman, B.L. 2003 ‘Misuse of scientific evidence by prosecutors’ 28 Oklahoma City University Law Review, 17.

Gianelli, P.C & McMunigal, K.C. 2007 ‘Prosecutors, Ethics and Expert Witnesses’ 76 Fordham Law Review, 1493.

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Goodwin Jones, C. 1986 ‘Men of Science v Men of Law: Some Comments on Recent Cases’ 26 Medicine, Science and the Law, 13.

Haack, S. 2009 ‘Irreconcilable Differences? The Troubled Marriage of Science and Law.’ 72 Law & Contemporary Problems, 1.

Her Majesty’s Inspectorate of Constabulary ‘Under the Microscope’ 2000, ACPO; London.

Her Majesty’s Inspectorate of Constabulary ‘Under the Microscope - Refocused’ 2002. ACPO: London, available at: www.hmic.gov.uk/SiteCollectionDocuments/Archive/ARC_20020601.pdf

House of Commons Science & Technology Select Committee, 2005, Forensic Science on Trial (2004-05 HC 427).

Jackson, G. 2009. The status of forensic science degree programs in the United States Forensic Science Policy and Management 1(1):2–9.

Jasanoff, S. 1990 The Fifth Branch: Science Advisors as Policymakers, Cambridge, Mass: Harvard University Press

Jasanoff, S. 1995 Science at the Bar, Cambridge, Mass: Harvard University Press.

Jasanoff, S. 2005 Designs on Nature: Science and Democracy in Europe and the United States (Princeton, NJ: Princeton University Press).

Jasanoff, S. 2007, ‘Making Order: Law and Science in Action’ in E.J.Hackett, Om Amsterdamska, M, Lynch & J. Wajcman, eds. The Handbook of Science and Technology Studies, 3rd edn. Cambridge, MA: MIT Press.

Kobus, H & M. Liddy, 2009. University Forensic Science Programs: A Student Attraction Strategy or a Value-Adding Partnership with Industry? Forensic Science Policy and Management 1: 125-129.

Koehler, J.J. 2008, ‘A welcome exchange on the scientific status of fingerprinting’, 7 Law, Probability and Risk, 85−86.

Latham, S.R. 2010, ‘Law between the cultures: C.P.Snow’s The Two Cultures and the problem of scientific illiteracy in law’ 32 Technology in Society, 31-34.

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Law Commission 2009. ‘The Admissibility of Expert Evidence in Criminal Proceedings in England and Wales’ (Consultation Paper 190) available at: http://www.lawcom.gov.uk/docs/cp190.pdf

Law Commission 2011 ‘Expert Evidence in Criminal Proceedings in England and Wales’ (Law Com No. 325) HC 829 (London: The Stationery Office, March 2011)

Lawless, C. 2011 ‘Policing Markets: The Contested Shaping of Neo-Liberal Forensic Science’ British Journal of Criminology, doi:10.1093/bjc/azr025.McCartney, C. 2006 Forensic Identification and Criminal Justice (Cullumpton:Willan Publishing).

McCartney, C. & Cassella, J. 2008a. ‘When Science Doesn’t Meet the Law: Addressing the Absence of Forensic Skills in Law Degrees’ Directions, Autumn, pp8-9.

McCartney, C. 2008 ‘When Science Doesn’t Meet the Law’, 7329 New Law Journal 992-993.Mashaw, J.L. 2003 ‘Law and Engineering: In search of the law-science problem’ 66 Law and Contemporary Problems, 135.

McCartney, C. 2008. ‘When Science Doesn’t Meet the Law’ 11 July, New Law Journal pp992-993.

McCartney, C., & Cassella, J., 2008b. ‘When science doesn’t meet the law: addressing the absence of forensic skills in law degrees’ December, pp1-4. New Directions in the Teaching of Physical Sciences, Higher Education Academy Physical Sciences Centre.

Mennell, J. and I. Shaw. 2006. The future of forensic and crime scene science. Part II: A UK perspective on forensic science education. Forensic Science International 157S: S13–S20.

Merlino, Richardson, Chamberlain & Springer. 2008 ‘Science in the Law School Curriculum: A Snapshot of the legal Education Landscape’ Journal of Legal Education, 58(2), 190-213.

Mnookin, J. 2008 ‘Expert Evidence, Partisanship, and Epistemic Competence’ 73 Brooklyn Law Review, 1009-1033.

Moriarty, J.C. 2007 ‘Misconvictions, Science, and the Ministers of Justice’ 86 Nebraska Law Review 1.

National Academy of Sciences, 2009. Strengthening Forensic Science in the United States: A Path Forward, Committee on Identifying the Needs of the Forensic Sciences Community; Committee on Applied Theoretical Statistics. Washngton D.C.: National Academies Press.

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National Institute of Forensic Sciences (NIFS). 2005. Australian forensic science: Education and training for the future. Melbourne, Australia: NIFS.

National Institute of Justice. 2004. Education and training in forensic science. NCJ 203099. http://www.aafs.org.pdf/NIJReport.pdf

Oberg, G. 2009 ‘Facilitating interdisciplinary work: using quality assessment to create common ground.’ 57 Higher Education, 405-415.

Quarino ,L. & T.A. Brettell 2009. ‘Current issues in forensic science higher education.’ Annals of Bio-analytic Chemistry, 394:1987–1993.

Raeder, M.S. 2007 ‘See No Evil: Wrongful convictions and the prosecutorial ethics of offering testimony by jailhouse informants and dishonest experts’ 76 Fordham Law Review, 1413.

Roberts, P. 2007. ‘Rethinking the Law of Evidence: A 21st Century Agenda for Teaching and Research’, in Roberts. P, & M. Redmayne, Innovations in Evidence and Proof, Oxford, Hart Publishing.

Roberts, P. 2009 ‘The Science of Proof: forensic science evidence in English criminal trials’ in: eds. Fraser, J. & R. Williams. The Handbook of Forensic Science Cullumpton, Devon: Willan Publishing.

Roberts, P. 2012 ‘Renegotiating Forensic Cultures: Between Law, Science and Criminal Justice’ History of the Philosophy of Science, Forthcoming.

Saks, M.J. & Faigman, D.L. 2008 ‘Failed Forensics: How forensic science lost its way and how it might yet find it.’ 4 Annual Review of Law and Social Sciences, 149-171.

Saks, M.J. 2001 ‘Scientific Evidence and the ethical obligations of attorneys’ 49 Cleveland State Law Review 421.

SEMTA, 2004. Forensic Science: Implications for Higher Education Higher Education Academy.

Skills for Justice, 2009 ‘Forensic Science degree programmes - are they up to scratch?’ available at: http://www.skillsforjustice.com/template01.asp?pageid=718

Snow, C.P. 1959 ‘Two Cultures: The Scientific Revolution’ Cambridge: Cambridge University Press.

Walker, C. & McCartney, C. 2005, ‘Expert witnesses seriously disagreeing as to whether cause of death of infants natural or unnatural: Case commentary’, Criminal Law Review 126-130.

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http://www.skillsforjustice.com/template01.asp?pageid=718


Wavelength, Spring 2008 – Special Issue on Forensic Science, Higher Education Academy Physical Sciences Centre.

Wonder, A. K.Y. 1989 ‘Science and Law: A Marriage of Opposites’ 29 Journal of the Forensic Science Society, 75.

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http://www.heacademy.ac.uk/assets/ps/documents/newsletters/newsletters/news4w1_final.pdf

http://www.heacademy.ac.uk/assets/ps/documents/newsletters/newsletters/news4w1_final.pdf


Appendix –The Surveys

In collaboration with academics from Leeds and Staffordshire Universities, the Physical Sciences Centre is interested in gathering information on the teaching of:

1. law/ legal studies on forensic science degree programmes and;

2. (forensic) science on law programmes.

We would be most grateful if you could answer the following questions. We have also left space at the end for any comments you may wish to add. This information will inform the planning of a workshop, to be held in late May 2009, to which legal and forensic science academics will be invited to discuss issues pertaining to the education of law, and forensic science students in the UK. If you are interested in hearing more about the workshop and future work in this area, then please add your name and contact details.

Establishment:

Degree programme(s):

1. Are the modules available on this programme available to the public on the internet?

Yes, No - would you be able to provide them upon request?

2. Do you teach law to your students? Yes , No, Not sure

3. Whose responsibility is the teaching of law on your programme(s)?

4. Is law teaching is important to your programme? Yes, No, Not sure

5. Do you think there is not enough/ too much/ just enough (please circle) law teaching on your programme?

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6. Would you find it easier to teach law on your programme if teaching resources were available? Yes, No, Not sure

7. Is law taught by law academics on your programme? Yes, No, Not sure

8. What input do you have to the teaching of law on your programme(s)?

9. Do you have any comments/observations regarding the legal knowledge of your students?

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In collaboration with academics from Leeds and Staffordshire Universities, the Physical Sciences Centre is interested in gathering information on the teaching of:

1. law/ legal studies on forensic science degree programmes and;

2. (forensic) science on law programmes.

We would be most grateful if you could answer the following questions. We have also left space at the end for any comments you may wish to add. This information will inform the planning of a workshop, to be held in late May 2009, to which legal and forensic science academics will be invited to discuss issues pertaining to the education of law, and forensic science students in the UK. If you are interested in hearing more about the workshop and future work in this area, then please add your name and contact details.

Establishment:

Degree programme(s):

1. Are the modules available on this programme available to the public on the internet?

Yes, No - would you be able to provide them upon request?

2. Can law students take a module in forensic science on your programme?

Are there other opportunities for students on your programme(s) to take any modules that may incorporate some ‘science’ education (this may not necessarily be specifically forensic science)?

Do you have any comments/observations regarding the (forensic) science knowledge of your students?

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