Evidential Regimes of Forensic Archaeology*

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Evidential Regimes ofForensic Archaeology∗

Zoe CrosslandDepartment of Anthropology, Columbia University, New York, NY 10027;email: [email protected]

Annu. Rev. Anthropol. 2013. 42:121–37

The Annual Review of Anthropology is online atanthro.annualreviews.org

This article’s doi:10.1146/annurev-anthro-092412-155513

Copyright c© 2013 by Annual Reviews.All rights reserved

∗This article is part of a special theme onEvidence. For a list of other articles in this theme,see http://www.annualreviews.org/doi/full/10.1146/annurev-an42.

Keywords

evidence, exhumation, history, human rights, law, science

Abstract

Evidence excavacated from mass graves and clandestine burials has playedan important role in the international prosecution of human rights abuses aswell as in individual criminal cases. The archaeological dimension of forensicanthropological work is focused on the grave site and its immediate surround-ing environment, making the work very visible and sometimes contentious.This review traces the ways in which forensic archaeological evidence iscomposed and evaluated, exploring how anthropologists have negotiated thesometimes competing demands and claims of the courts, scientific practice,and relatives of the dead.

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Review in Advance first posted online on July 24, 2013. (Changes may still occur before final publication online and in print.)

Changes may still occur before final publication online and in print

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http://www.annualreviews.org/doi/full/10.1146/annurev-an42

http://www.annualreviews.org/doi/full/10.1146/annurev-an42


INTRODUCTION

In the United States forensic archaeology is emerging as a distinct field. Archaeology provides anecessary set of methods for dealing with buried remains and for assessing and recording a gravesite and its immediate surrounding environment (Haglund 2001, Schmitt 2002, Tuller 2012,Wright et al. 2005). In the past, archaeology has been deployed primarily as a technique by prac-titioners trained in physical anthropology, and debate is ongoing about its status within forensicanthropology and its relationship to the rest of the field. However, the potential contributionof archaeology for mass disaster recovery and for complex crime scenes has become increasinglyclear (Dirkmaat et al. 2008, Sledzik 2012). The Physical Anthropology section of the AmericanAcademy of Forensic Sciences (AAFS) recently voted on a name change to “Anthropology,” ac-knowledging the growing role of forensic archaeology in the United States; the Scientific WorkingGroup for Forensic Anthropology has also been discussing the issue (see http://swganth.org).This situation contrasts with other parts of the world, particularly the United Kingdom, whereforensic archaeology is more established as a field in its own right (Hunter & Cox 2005). Thegrowth of forensic archaeology has encouraged new perspectives on the study of the recent past(Buchli & Lucas 2001) and has opened up significant new possibilities for theorizing archaeo-logical practice. In this review, I trace some of these emergent issues by exploring the evidentialregimes that govern how forensic archaeological work is carried out and understood.

Forensic archaeology is located at the intersection of multiple evidential regimes that articu-late different and often conflicting expectations for archaeological practice. For example, Haglund(2002) outlines five dimensions to the exhumation of mass graves as part of human rights inves-tigations. These include the search for legal evidence, the identification of the dead, the creationof an accurate historical record, the work of advocacy, and the need to recognize the dignity ofhuman life (2002, p. 245). In this review I explore the tensions that arise from the “troublingcollective performance” of exhumation (Ferrandiz 2008, p. 177) and reflect on how forensic ar-chaeology negotiates the various needs and desires of participants. I consider three broad fieldswithin which archaeological evidence is produced as part of forensic investigations, each of whichis heterogeneous and often also fragmented. These may be glossed as the evidential regimes ofarchaeological practice (whether scientific or historiographic in nature); of criminal investigationand legal testimony; and of relatives, survivors, and their advocates.

This review concentrates on the different expectations at work in defining archaeological evi-dence within a broadly forensic context, rather than reviewing the state of contemporary forensicarchaeological practice. Several volumes have been written by practitioners themselves to coverthe latter comprehensively (Adams & Byrd 2008, Blau & Ubelaker 2008, Dirkmaat 2012, Ferllini2007, Haglund & Sorg 2002, Hunter & Cox 2005), as have recent guides for the forensic recoveryof human remains (Connor 2007, Dupras et al. 2012). Important themes that the wider field offorensic anthropology is addressing at the moment, which I do not treat here, encompass ques-tions of legal and ethical responsibilities and the professionalization of the discipline (France 2012,Marquez-Grant & Fibiger 2011, Thompson 2001), improvements in methods and reporting, andthe impact of DNA testing (Baraybar 2008, Cabo 2012, Dirkmaat et al. 2008, Steadman 2013).Other relevant issues that I do not develop in any detail in this article include the positioning offorensic evidence as a form of testimony (Dawes 2007), forensic anthropology’s relationship tohuman rights discourse (Goodale 2009, Mitchell & Wilson 2003), and the material agency andsymbolic power of human remains (Verdery 1999, Harrison 2012). My approach in this review isto foreground the question of evidence in order to tease out some of the ways in which it is com-posed within forensic archaeological practice. Engelke (2008) has suggested that the concept ofevidence provides a means to negotiate the apparent “bifurcation of anthropology into ‘scientific’

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and ‘poetic’ camps” (p. S7). I argue that this may be seen precisely through the complex work thatforensic archaeologists undertake. Although forensic archaeology holds an undeniable fascina-tion for the mass media and undergraduates alike, it remains a small and somewhat marginalizedfield within the discipline of anthropology. However, forensic archaeologists address questions atthe cutting edge of archaeological practice, and I suggest here that the theoretical space that isemerging around their work shows ways to reimagine anthropology for the twenty-first century.

The first section of this article locates forensic archaeological evidence within the broaderliterature on evidence in anthropology. I begin by considering the evidential demands of forensicarchaeology, outlining how practitioners have articulated the difference between forensic archaeo-logical evidence and the wider archaeological field. I then turn to the tension between the evidentialregimes of legal and scientific practice in the United States, before addressing international humanrights law and looking at how anthropologists negotiate the competing demands of courts, archae-ological practice, and the relatives of the dead. I situate forensic archaeological investigations ashistorical inquiry as much as scientific investigation and then consider the evidential expectationsof relatives and human rights organizations. I conclude by reflecting on the location of forensicarchaeology within anthropology and by calling for a more sustained and critical engagementacross the subfields of the discipline. Before turning to these themes, I provide a brief overviewof the history of forensic archaeology in the United States and Argentina, two key locales for thedevelopment of the field.

FORENSIC ARCHAEOLOGY IN THE UNITED STATESAND ARGENTINA

Although forensic anthropology emerged as a field during the early to middle twentieth century(papers in Blau & Ubelaker 2008, Ubelaker 1997), forensic archaeology is a more recent develop-ment. Within the United States, it developed as a technique used by forensic anthropologists inthe recovery of human remains (e.g., Bass & Birkby 1978, Krogman 1943, Morse et al. 1976). Thefirst handbooks for the forensic archaeological recovery of human remains appeared in the early1980s (Morse et al. 1983, Skinner & Lazenby 1983); these were aimed primarily at investigatorswith a limited background in archaeology. Over time it became clear that trained archaeologistscould contribute a great deal to understanding the crime scene and that forensic work could alsomake an important contribution to archaeological knowledge (Mant 1987, Sigler-Eisenberg 1985,Skinner 1987). This notion led to the development and refinement of excavation strategies and anexpanded role for archaeology (Dirkmaat & Adovasio 1997, Haglund 1998, Hunter et al. 1996).However, a recent review by Dirkmaat & Cabo (2012) suggests that it “remains a peripheral ratherthan an integral activity of forensic anthropology” in the United States (p. 20). It was with thelarge-scale investigation of human rights abuses outside the United States that forensic archaeo-logical inquiry came to greater public awareness and has subsequently started to emerge as a fieldin its own right (Ferllini 2007).

Important in this development was the work of the Argentine Forensic Anthropology Team(EAAF), established in 1984 with the help of the American Association for the Advancement ofScience (Snow et al. 1984). The EAAF excavated the graves of those disappeared and murderedduring the military dictatorship of Argentina from 1976 to 1983 (Bernadi & Fondebrider 2007,Doretti & Snow 2003). Originally this work was undertaken as part of a national investigationand prosecution of human rights abuses (CONADEP 1986), but over time it took on a broaderremit to identify the dead and contribute to the reconstruction of historical memory. Given thefraught politics of human rights investigations, the EAAF contrasts with forensic archaeology in

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the United States in placing more emphasis on developing relationships with families and survivorsof political violence and on the importance of historical inquiry, including both documentary andoral sources, to accompany and precede the work of exhumation (Fondebrider 2012). The EAAFhave played a key role in developing forensic anthropological expertise elsewhere in Latin America(Doretti & Fondebrider 2001), as well as in other parts of the world. Early interventions includedinvestigations for truth commissions in Guatemala and El Salvador (Binford 1996, pp. 124–34;EAAF 1992, 1993), as well as Iraqi Kurdistan (Stover 1992) and Ethiopia (EAAF 1994).

Multidisciplinary international teams including archaeologists have undertaken large-scale ex-cavations under the auspices of the United Nations to provide evidence to prosecute human rightsviolations at the International Criminal Tribunals in Rwanda (ICTR) (Ferllini 1997, Haglundet al. 2001) and the former Yugoslavia (ICTY) (Hayden 1994, Klinkner 2012, Saunders 2002).Archaeologists have now been involved in the investigation of human rights abuses in many partsof the world (Ferllini 2007, Hanson 2008, Steadman & Haglund 2005), and they have also con-tributed to the recovery and identification of human remains after mass disasters and violentattacks by political militants (Black et al. 2011, Gould 2007, Sledzik 2012). Outside these ad hoccontexts archaeology remains a small part of forensic work, with the notable exception of theUS military’s work to locate and repatriate the remains of missing members of the armed forces(Emanovsky & Belcher 2012, Mann et al. 2003). The expansion of exhumation as part of humanrights investigations has led to a growing interest in the wider repercussions of forensic archaeo-logical practice. Authors have started to explore the social, political, ethical, and logistical issuesthat are caught up with domestic criminal investigations (Cox 2001, Duhig & Turnbull 2007,Gould 2007), as well as the complexities of working in post conflict situations both domestically(Bernadi & Fondebrider 2007, Gassiot Ballbe & Steadman 2008, Mitrovic 2008) and as part ofinternational investigations (Congram & Steadman 2008, Fondebrider 2002, Hunter & Simpson2007, Klonowski 2007, Skinner 2007, Steele 2008, Wright & Hanson 2009).

EVIDENCE AND FORENSIC ARCHAEOLOGY

In a 2001 issue of Historical Archaeology Connor & Scott drew attention to the different paradigmsat work in forensic archaeology, observing that to work in forensic science as an archaeologist isto work between two disciplines. They contrasted forensic evidence with that collected by mostarchaeologists because it “is not gathered to uncover the broad patterns of human behavior, butrather to reconstruct the specifics of a single event” (2001, p. 3). Although forensic archaeologyshares techniques and methods with archaeology as a whole, Haglund remarked in the same issue(2001) that switching from an archaeological paradigm to one that is medico-legal demands adifferent mode of practice. Forensic work includes a rigorous attention to the chain of custodyand confidentiality as well as an awareness that archaeological fieldwork and inferences may beclosely scrutinized and possibly challenged in court (2001, p. 28). These concerns make visiblean issue that is present for all of anthropology: the question of how evidence is constituted inrelation to particular goals, and the possible repercussions of this work of representation. AsHastrup emphasizes (2004), evidence cannot usefully be considered as “external to the contextof the situation” (p. 455). Rather, evidence is situated within different regimes that govern whatis allowed to enter in as material fact and how it is evaluated. Csordas (2004) suggests that these“paradigmatic considerations” bring into view the different assumptions underpinning evidencewithin various fields, whether journalistic, judicial, anthropological, or historical (p. 474)—alldomains that touch on the work of forensic archaeology. Evidence is always collected with aparticular end in mind, but paradoxically it is also understood as independent of intention, able tostand against and contradict false truth claims (Daston 1994). As Csordas outlines, this peculiar

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double aspect means that evidence is both what “establishes fact in a situation of uncertainty,”while also being understood as unmediated and certain (p. 478). This dimension of evidence isparticularly important in the forensic context, where although it is marshaled in the service ofjustice, its ability to stand aside and independent of this goal is also crucial to the truth claims thatare made around and through it. In this way, the evidence of exhumation is often positioned asself-evident, able to challenge the lies and mistruths told by those responsible for the deaths ofthose exhumed (Grandmaison & Durigon 2001; Schmitt 2002, p. 280).

In challenging (mis)representations made about criminal acts, forensic evidence also mediatesknowledge about the past. This faculty highlights another dimension to the evidential relationshipaside from its orientation toward a future goal. “We cannot begin to talk about the evidence,”observes Lewontin (1994), “until we talk about what it is we are trying to produce evidence of”(p. 504). This may be specified in vague terms, for example as evidence of past events pertinent toa legal case, but as Csordas (2004) remarks, evidence is always “of or for something” (p. 475). HereI’d like to emphasize the integrated and necessary nature of these three dimensions to evidence.Forensic evidence (or a material fact) stands as a sign of something, and this relationship is in turndeployed in the service of a particular end. Excavated bodies and artifacts are used as “evidenceof” to point to past events and, in so doing, deployed as “evidence for” different goals, whetherlegal, scientific, historical, or personal (cf. Peirce 1955). From this perspective it is necessary tothink critically about not only the ways in which the dead are presented as factual evidence, butalso the modalities through which they become evidence both of and for something. In attendingto archaeological evidence as a tripartite sign relationship as much as a material thing, the waysin which these different modes of knowing are recognized and elaborated come more clearly intoview. Engelke (2008) has remarked that evidence concerns questions of both epistemology andmethods (p. S2). This insight is illustrated by forensic archaeology’s protocols, which are closelytied to its particular objectives (Hunter 1999, p. 211) and so become part of the way in whichforensic evidence is both assessed and constituted (Ranson 2009, pp. 500–2). As Lewontin puts it,“ . . . the very method which we use is itself a form of evidence” (1994, p. 504).

The methods deployed by forensic archaeologists are therefore an important part of the consti-tution of evidence for different contexts, which can create some tension between different evidentialgoals. Maintenance of the chain of custody, restrictions on access, archaeological qualifications,and experience: All of these are part of the constitution of archaeological evidence as medico-legal evidence. Equally, certain kinds of evidential relationships are privileged and can come intoconflict with the expectations of different evidential regimes. For example, evidence that can beshown to index certain past events (in the Peircean sense of being linked with or affected by whathappened in the past) is accepted within a medico-legal framework. The soil color change left bydigging and filling a trench, the disposition of bodies within a grave: These evidential traces retainsomething of the actions that caused them and must be collected carefully to demonstrate andmaintain this existent relationship (Crossland 2009). Without these indexical links, evidence thatis understood to be in a relationship of resemblance (a coat that looks like one worn by a missingbrother, a gap-toothed smile reminiscent of a close relative) can be less available to be acceptedas legal testimony, as I discuss below. Moreover, a language must be found that presents theseresults as clearly and as unambiguously as possible for court, but this may not be suitable for othersituations. As archaeologists we tend to think about how material facts are deployed as evidencefor an argument or to test a hypothesis. However, the debates around forensic archaeology showhow human remains can provoke powerful and compelling emotional responses, and not simplybecause of the shock of seeing something that is normally kept out of view (cf. Kristeva 1982). Thedead are recognized as evidence of death, of the passing of someone who is missing and missed.This evidence evokes a feeling or prompts action as much as it is used to write history or prosecute



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a court case (cf. Peirce 1955). In exploring the tensions that emerge in these contexts, one can seethe affective and nondiscursive aspects of archaeological work more clearly.

SCIENCE AND FORENSIC EVIDENCE

In the context of US judicial processes, forensic anthropology as a whole has been drawn into recentdebates about the use of scientific evidence in court. The issue was thrown into relief by a series offederal trial rulings that have worked to clarify when scientific findings can be admitted as evidence(Kiely 2006). These have provoked some discussion in forensic anthropology (Holobinko 2012),particularly with respect to the evaluation of forensic osteological evidence, including the need toestablish known error rates and to standardize measurement and reporting (Christensen 2004a,Christensen & Crowder 2009, Grivas & Komar 2008). Relevant for this review, perhaps the mostinteresting dimension of the wider debate has been the way in which it has pointed to importantdifferences in modes of argumentation and the constitution of evidence within scientific and legalpractice. The evidential regimes of science and law are governed by different goals, affecting whatmay or may not be admitted as evidence in the search for knowledge about the world. The long-term and evolving nature of scientific inquiry can be contrasted with the final judgment of factsthat must be made in a court case (Foster & Huber 1999, p. 253). It is this uncertainty aroundsome scientific findings that have not yet stabilized as uncontested facts (cf. Latour 1987) that canlead to the exclusion of scientific evidence from testimony (Berger & Solan 2008). The kind ofspeculative and ampliative inference (cf. Wylie 2002, pp. 20–22) that might be acceptable in thecontext of the ancient past will not stand up in court. Foster & Huber (1999) observe that the veryquestion of admissibility contrasts with scientific practice because scientists can use “more varied,intuitive, and open-ended criteria” to decide what counts as evidence. Conversely, when decidingwhether evidence can be presented to the court “a legal trial must make a binary and (for thelitigants’ purposes) utterly final choice between one side and the other” (Foster & Huber 1999,pp. 17–18). Kennedy (2003) gives another example in which relevant anthropological evidencewas excluded by a defense attorney because it risked opening his client to further criticism. Heredecisions over evidence are based on the goal of reaching a final adjudication of guilt or innocence,rather than on what the evidence potentially contributes to more complete knowledge of the past.

Important to assessing forensic evidence are the rhetorical strategies used in the forum of thecourt. The evidential regime of courtroom testimony allows attacks to be made on expert witnessesthat can be more aggressive and more personal than usual scientific critique (Henneberg 2009).These can include encouraging doubts over the qualifications and experience of the witnesses, thevalidity of the methods used, and the interpretation of the results of those methods (Dilley 2005,pp. 196–201; Kiely 2006, p. 10). Brodsky (1989, p. 261) observes that the adversarial nature ofthe trial process can stand in conflict with what he characterizes, perhaps somewhat sanguinely,as science’s more collaborative mode of truth finding. Important to this enterprise is the expres-sion of doubt where warranted (Peirce 1877); in a legal context this can be used to damage thewitness’s credibility, depending on the circumstances. Roberts (1992) has described the battlesover the interpretation of genetic evidence in the early 1990s, showing how the legal system canleave little room for ambiguity or nuance in discussions of scientific findings. He outlines how insome extreme cases the usual processes of scientific debate, peer review, and even funding awardscan be used to undermine the credibility of the expert witness. The courtroom context thereforedemands tight control over archaeological methods and handling of evidence, and this extends tothe recording and reporting of the excavation process and results. All site records can be interro-gated as part of the defense; this and the time constraints of forensic investigation place limits onthe kind of recording that can take place (Hunter & Cox 2005, pp. 20–21; Skinner et al. 2003).

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These demands would seem to leave little space for reflexive and experimental field practicesthat entertain multivalency and dissonance or which encourage dialogue between conflictingviewpoints—all approaches that are an increasingly important part of archaeological practice(e.g., Bender et al. 2007, Hamilakis & Anagnostopoulos 2009, Hodder 1997). However, develop-ments in forensic archaeology, particularly in human rights contexts, reveal the imaginative waysin which archaeologists are reflecting critically on their practice and searching for ways to workwithin the difficult and dynamic circumstances of mass grave exhumation.

HUMAN RIGHTS AND FORENSIC ARCHAEOLOGY

As forensic archaeology has moved into the arena of international human rights, law and advocacypractitioners have noted the different expectations and evidential demands of this work in com-parison with domestic criminal investigations (Burns 1998). The goals of excavation for humanrights prosecution affect what kind of evidence is brought into view and collected and so can alsoprompt changes in recovery methods (Schmitt 2002, p. 279). The international legislation that isat issue when forensic archaeologists are brought in to investigate human rights violations includeswar crimes (where the laws governing warfare are not respected), crimes against humanity, andgenocide (Cerone 2007, Schmitt 2002). To prove that crimes against humanity have taken place,evidence is needed of widespread or systematic attacks on civilians. Similarly, prosecution of thecrime of genocide requires evidence of the intent to destroy a targeted population, on the basis oftheir perceived ethnic, racial, religious, or national identity (Komar 2008).

The investigations that took place in the former Yugoslavia demonstrate some of the com-plexities of this work. In most domestic criminal cases within the United States, the interests ofthe dead, their family, and the search for justice generally align; however, in the prosecution ofmass human rights abuses, these goals may not be compatible (Crossland 2002, Rosenblatt 2010,Sassoli & Tougas 2002). For example, the exhumations of those killed after the fall of Srebrenicain July 1995 recovered the remains of thousands of men (Klonowski 2007). However, the evidenceneeded for prosecutions at the ICTY did not stretch to include the identification of all the dead.Instead, evidence of unlawful execution or of targeting a specific group was at issue. The hugenumbers of people killed and buried led to a situation in which those exhumed had to be placed instorage without the necessary resources to identify and repatriate them (Stover & Shigekane 2002,Vollen 2001). Here, the legal needs of the ICTY were met, but those of family members and sur-vivors were not. This discrepancy is often framed as a conflict between the legal and humanitariandimensions of exhumation (Stover et al. 2003) or between justice and identification (Cordner &McKelvie 2002). However, practitioners also observe that both identification and legal redress arepart of the same broad goal of justice (Congram & Sterenberg 2009, pp. 447–48; Fondebrider2002) and that, even in cases of humanitarian exhumation, evidence should be recorded in waysthat facilitate its use in future prosecution.

Another aspect to the humanitarian recognition of the dead is the acknowledgment of formsof evidence that would not be recognized within either a medico-legal or scientific framework.Kwon (2008) describes how the search for the remains of the Vietnamese war dead “usually beginswith a communication with the missing dead to ask for the location of their bodies before thecostly field trip to the site is initiated” (p. 50). Here the evidence of the dead is not restricted to thephysical traces of the corpse but can extend to include messages passed on from the spirit world.Kwon writes of Communist party officials in Vietnam who are involved with the search. Theseofficials “transition between . . . forms of expertise,” moving from archaeology to forensic work,but also drawing on local historical knowledge and acting as specialists in funerary ritual and otherassociated ceremonies (2008, pp. 44–45). This movement between modes of expertise is an aspect of



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forensic archaeological work that is shared across widely disparate contexts. Sanford has describedhow excavated mass graves in Guatemala became a site of mourning and of improvised funeraryritual for relatives and survivors, who placed candles and flowers in the grave (Sanford 2003). Theburial site can become an important location for mourning and memory (Stover & Shigekane 2004,p. 88), as can sites of mass disaster and other places of death. The interaction between archaeologistsand local publics at such locales has contributed to a willingness among forensic practitioners toengage with broader questions outside of narrowly conceived methodological issues.

In a strikingly honest review of his own experiences in Afghanistan, Skinner (2007) describesproblems that emerged from the contrasting treatment of the dead as scientific and legal evidenceand the needs of families, survivors, and others. Time constraints led him to sample one burial site,laying out a trench within the area of the mass grave and removing only those remains found in thesampled area. His Afghan coworker was uncomfortable with this, concerned that the corner postsof the trench would penetrate the bodies below. The technique also left partial remains behind inthe wall of the excavation trench. Skinner explains that he planned to retrieve them at a later datebut that he was ultimately unable to return to finish the excavation, leaving some bodies partiallyexhumed. Each set of excavated remains was numbered for future reference, and the remains werereinterred with their heads to the north, according to local practice (2007, pp. 246–49). Afghanworkers treated each reburial “like a proper grave,” Skinner observes (p. 249), remarking also that“I realized that my unfamiliarity with local material culture and burial customs was detrimental togood forensic archaeology” (p. 246). This recognition of the beliefs and practices about the deadthat are imbricated in exhumation takes a broad view of archaeology as an anthropological projectthat attends to human relationships, past and present, as much as to archaeological technique.

Stover & Shigekane have described the different demands and expectations of the courts andfamilies as a tension between the need for evidence and the need for bodies (cf. Domanska 2006,p. 344). However, here I would like to think about the search by families for the remains of the deadas a search for another kind of evidence. Stover (Stover & Peress 1998) describes how after the1995 Dayton Peace accords for peace in Bosnia and Herzegovina, the International Committeeof the Red Cross (ICRC) assembled a list of the missing and issued attestations of death in caseswhere a presumption of death could be made. He describes the anger and mistrust felt by familiesand survivors toward officials and agencies involved in the work of postwar reconstruction (1998,pp. 194–99). The ICRC’s certification of death was particularly criticized; relatives demandedproof of death, one family member and activist asking, “Where is the evidence? Where is thebody?” (Stover 1998, p. 196). This was partly an expression of doubt that missing relatives weredead at all, but also a personal search for meaning and an effort at historical understanding. Familiescalled for the evidence of the senses, in a work of grief and mourning that was also a political project,demanding the presence of the body, in all its personal, physical particularity, as evidence of thelife and death of the missing. Commenting on her forensic work in Cambodia, Jarvis (2002) notesthat one way to heal “psychological scars” is through recognition of the “material scars” left bypolitical violence, “acknowledging incontestably that the wounds were real.” Another way “is tocall those responsible to account for their crimes” (2002, p. 100). To demand the presence ofabsent bodies is to do both at once in a search for justice and for a different telling of historythat puts pressure on those responsible, precisely through their refusal and inability to return themissing alive (cf. Crossland 2002).

HISTORY AND FORENSIC EVIDENCE

The emphasis on forensic work as science within English language media can disguise the historicaldimensions of forensic excavation. Indeed, the work is doubly historical, both as archaeological

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narrative and as courtroom testimony. Kiely (2006) observes that a trial is an exercise in history,in establishing a truthful account of past events (p. 48). This idea becomes especially clear inthe context of investigations into human rights abuses ( Juhl 2005). In these cases, one of thegoals of forensic excavation is to document past crimes and clarify historical memory (e.g., papersin Tamm 2008). Doing so can include efforts to correct the historical record, which may havebeen deliberately falsified to obscure and deny past abuses. One clear example is the case of theFormer Yugoslavia, where efforts had been made by Bosnian Serbs to disguise and deny massacresand mass graves by exhuming and reburying remains (Pollack 2003, Skinner et al. 2002). Inestablishing the sequence of events and evidence of criminal acts, the ICTY built a narrowlyfocused historical account that conflicted with the need for identification and return of the dead.Here history was being narrated under different evidential regimes. The courts were lookingfor a precise accounting for the purposes of prosecution, whereas relatives and human rightsorganizations demanded an accounting that would also acknowledge the pain and injustices of thepast.

It is perhaps in the context of exhumations in Latin America and Spain that the idea of exca-vation as a work of history and memory has been explored most fully. This notion is captured inthe name of the Guatemalan Historical Clarification Commission (Comision para el EsclarecimientoHistorico), established to investigate human rights abuses in Guatemala, and the Spanish advocacyorganization, the Association for the Recovery of Historical Memory (Asociacion para la Recu-peracion de la Memoria Historica), which was established primarily to investigate the abuses carriedout under Franco (Ferrandiz 2008, Renshaw 2011). A similar concern with the broader historicalcontext has led the Argentinian EAAF to undertake wider historical investigations alongside ex-humation. One dimension of this inquiry has been the effort to establish the operating patternsof the security forces in Argentina, including the study of 18 clandestine detention centers, theirrelationships with cemeteries, and the passage of prisoners through them (EAAF 1993, p. 5). Itis perhaps in this last aspect that the scope and objectives of “forensic” work in Argentina seemto diverge most from the way in which this work is imagined in the United States. Similarly,Guatemalan forensic anthropologists Suasnavar & Moscoso Moller (1999) observe that forensicanthropology in Guatemala developed in the context of social struggle, terror, and impunity andthat their investigations were not simply accounts of isolated incidents of violence. Rather, theyuncovered the social processes that generated widespread political violence and mass graves and, inso doing, produced a historical interpretation of them. This approach has opened up possibilitiesfor historical archaeologists to explore the intersections between forensic work and other formsof archaeological inquiry into the contemporary past (e.g., Funari et al. 2009, Hidalgo 2012).Archaeologists working in Latin America and Spain have been a driving force in this endeavor,enabling forensic archaeological evidence to be situated as part of a more broad-based inquiryinto recent violence (Gassiot Ballbe 2008; Gonzalez-Ruibal 2007; Renshaw 2007, 2010a; Vilches2011), including working with survivors to excavate the clandestine detention centers where theywere held (San Francisco et al. 2010, Zarankin & Funari 2008, Zarankin & Salerno 2008). Thesestudies are part of a growing interest in the archaeology of the recent past (Buchli & Lucas2001, Harrison & Schofield 2009), creating fruitful new avenues to connect forensic researchwith the wider archaeological field (e.g., Myers & Moshenska 2011, Schofield et al. 2002, Weiss2010).

EVIDENCE FOR FAMILIES AND SURVIVORS

Evidence is procured by archaeologists within a humanitarian framework to identify and repatriatethe dead, but for families it is usually sought as a way to come to terms with the loss of their loved



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ones. Here the goal is not and cannot be explicitly articulated; it is a search for a feeling as muchas for any historical narrative, a quest to understand and recognize their loss (cf. Krmpotich et al.2010). This need is not always satisfied by the simple presence of human remains themselves.Sant Cassia (2005) writes of the lack of recognition by relatives of excavated skeletal remains(2005, p. 203; 2006), and Renshaw (2010b) outlines how for many relatives of those exhumed inpost-Franco Spain, the identity of the dead could be perceived only in the facial features of theskull rather than the osteological indices used by anthropologists “which are too far removed froma vernacular notion of recognition” (p. 130). For relatives, personal artifacts and items of clothingcan come into view more powerfully as evidence of personal identity and history, “signs of life ina grave,” as Koff puts it (2004, p. 62). Wagner (2008) writes of the objects recovered from gravesand collected as part of work by the International Commission on Missing Persons (ICMP) toidentify those killed at Srebrenica. A coffee pot, a clock, letters and photographs, a leather-boundKoran: all evoke a person and a story (pp. 141–44). Objects such as these can mediate and renewrelationships with the dead, just as they had maintained links with home for those separatedfrom their families (Parkin 1999). The personhood of the missing is distributed through suchartifactual evidence in ways that are powerful both for relatives and for archaeologists. Mitrovic(2008) describes how, while excavating in Serbia, he felt transposed into a different, disturbingreality through his close interaction with decomposing bodies and artifacts from the grave (cf.Buchli & Lucas 2001, pp. 9–12). Brkic (2004) has written similarly of how washing excavatedclothes called to mind the mothers and wives who had washed them before her (p. 77). Herepersonal possessions evoke an affective and embodied moment of recognition, demonstratinganother dimension to how such objects mediate relationships between the dead and the living.The ways in which these personal effects work as evidence and are drawn into processes ofidentification and mourning are an important area of study for anthropology that has only recentlybegun to be explored (see Baraybar 2008, Renshaw 2011, Sanford 2003, Thompson & Puxley2007).

In the search for those killed from Srebrenica, the ICMP and ICRC compiled photographsof clothing and possessions found with the dead to show to relatives. Although some itemswere recognized, only a small number of the identifications made this way were confirmedwith DNA analysis. Some were shown to have been made in error (Huffine et al. 2001, p. 274;Wagner 2008, pp. 99–100). Wagner (2008) recounts how men who fled from the violence atSrebrenica swapped clothing or were given identity cards and photos by the wounded (p. 99).These actions led to confusion over presumptive identifications made on the basis of clothing.In early exhumations before the ICMP introduced a program of DNA testing, Klonowski(2007) witnessed “situations in which two different families claimed the same remains becauseof recognition of familiar clothing or shoes” (p. 1667). Here the doubts about evidence basedon a relation of resemblance demonstrate the importance of indexicality in forensic practice.To make a credible forensic claim about the past, a confirmable and existing relationshipmust be established, whether linking crime scene and perpetrator, or human remains andthe missing. These concerns can be seen in the recent debates over how to assess degrees ofsimilarity between osteological remains and antemortem photographs (Christensen 2004b). Tobe used as legal evidence, the photograph must be shown to be in a noncoincidental relation ofresemblance. As with fingerprint and DNA evidence, this becomes a question of probability andof estimating the likelihood that the resemblance would occur by chance (Steadman et al. 2006).In circumstances in which DNA analysis and antemortem records are not available, a looserpresumptive identification may stand in for a more definite proof (Renshaw 2011; Sanford 2003,pp. 234–35).

130 Crossland


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CONCLUSIONS

Tracing the relationships articulated around forensic evidence makes visible the complex networksof the living and the dead that are held together by the material revelations of mass graves, but it alsoillustrates how the production of evidence refuses any easy separation into facts and interpretation.Rather, the conceptual apparatus of interpretation is embedded in the composition of evidence,whether in the definition of how things and bodies are understood to work as evidence of past eventsor of personal identity or in what is brought into view as evidence in the first place. Furthermore,the methods used to record and translate evidence for different goals are themselves constitutiveof evidence. Within these shifting relations are the excavated bodies and artifacts, material thingsthat take up particular coordinates in time and space, and which have a strong degree of persistingcontinuity. In acting as a point of articulation for very different relations, the same material factsmove between different constellations of goals and histories. In this way, the material presence ofthe body links different actors but can also intrude into evidential relationships and force themto recalibrate. Wylie (2002, pp. 205–10) has discussed how these “corrective powers” are notlocated in material evidence alone, however, but also come from the ways in which they aresituated within different and independent relationships. Insofar as evidence is a minimally triadicrelationship through which the dead are known, then the body as evidence shifts with contextand can be understood properly only through these changes in its constitution. A body may beevidence of crime for a prosecution and also evidence of a life and a death for a relative searching forrelease from the painful doubt evoked by their missing. It is in shifting between these different andsometimes apparently incommensurate evidential regimes that we come to a better understandingof the body and person and how they hold together these relations. This need not, and probablycannot, resolve into a unified and homogeneous account. Attempts to describe what happenedto the dead, whether through the testimony of text, images (e.g., Ferrandiz & Martınez 2011,Stover & Peress 1998), or spoken words, may be incompatible and even destructive of memory insome cases (Renshaw 2011, p. 127), even while producing a fuller discursive picture of the past.This is a problem of representation (Ferrandiz 2008, Renshaw 2007, Thompson 2008), but alsoone of recognizing the affective and performative dimensions of archaeological work (Edgeworth2006). In confronting these issues on the ground, forensic archaeology is finding context-specificforms of practice that can negotiate these complexities (Crossland 2011). The multidisciplinarynature of exhumation (Cox 2003, France et al. 1992) encourages an orientation that is open toother perspectives and which acknowledges the network of relationships in which exhumation iscaught up. Archaeologists are exploring these issues in concert with ethnographers, historians,writers, photographers, and others (e.g., Anstett & Dreyfus 2012, Ferrandiz 2009, Ferrandiz &Martınez 2011, Perez-Sales & Garcıa 2007, Stover & Weinstein 2004, Tamm 2008). In tracingthe network of evidential relations around the dead they create a hybrid space in which new formsof scholarship can be imagined, which cut across old disciplinary divisions, including those of ourown anthropological field.

DISCLOSURE STATEMENT

The author is not aware of any affiliations, memberships, funding, or financial holdings that mightbe perceived as affecting the objectivity of this review.

ACKNOWLEDGMENTS

Thanks to Derek Congram and Hugh Tuller for helpful comments and perceptive criticisms onthis paper. All errors remain my own.



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Evidential Regimes of Forensic Archaeology*

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