CRICOS #00212K

Significance Of Preservation, Collection

And Presentation Of Evidence For

Forensic Nurses

Dr James Robertson AM PSM

Director NCFS and Professorial Fellow

Vice President ANZFSS

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Forensic Nursing Science

• Science comes from the Latin word „scientia‟ meaning

„knowledge‟

• Forensic comes from the Latin „forensis‟ meaning „of or before

forum‟

• Forensic science attempts to provide knowledge which assists

to resolve legal disputes

Forensic nursing seeks to address healthcare issues that

have a medico legal component

HENCE

The potential for forensic nursing within the field, are many

and varied, working in collaboration with the various

members within the field of forensic science

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Role Of First Responders In The

Health System

Where does the crime scene start in the health system?

For many incidents this is either the ambulance or the

emergency department

The first responsibility of paramedics and staff of

emergency departments is preserving life NOT evidence

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• Forensic science starts at the locus or scene

of what is alleged to be a crime – a crime

scene

• For forensic nursing the „crime scene‟ is likely

to be an examination area in a hospital

• Except in some specialist units, such as

sexual assault referral centres, these

facilities are unlikely to have been designed

with forensic practice in mind!

• As the Jama case in Australia has

demonstrated – normal hospital procedures

are not likely to meet forensic and legal

standards

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The Jama Case – A Timely Reminder That

Even Apparent Good Practice May Fail

“DNA evidence appears to have been viewed as possessing

an almost mystical infallibility”

The unreserved acceptance of the DNA evidence allowed all

involved to leap over a „veritable mountain of improbabilities‟

„There were always ample warning signs... but they simply

were not read‟

(The Report on an Inquiry into the circumstances that led to

the conviction of Mr Farah Abdulkadir Jama, The Hon. F H R

Vincent, 2010)

So What Were The Problems?

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Contamination

It is not DNA but physical biological material

which is shed and forms a background of

potential „DNA‟ sources!

This biological material must be shown to have a

causal link to what is alleged to have happened.

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Contamination The Crisis Unit

„The trolley on which equipment was laid out would probably not be cleaned after

use and some of the items would not be cleaned at all, for example the trolley top

and scissors‟

„There was no log book or other record kept that would enable a check to be made

as to whether any cleaning was carried out...‟, pp 22

The Police View

„The investigating police member... said that it never contemplated that, if there was

contamination, it may have happened at any other location than the testing

laboratory.‟ pp 25

The Forensic Laboratory

„...I do not think contamination between the two cases could have occurred...‟ pp 25

The Defence

„...the defence did not challenge any of the prosecutor‟s assertions concerning the

absence of any risk of contamination...‟ pp 29

The Prosecution

„There was no suggestion in this case of any lapse or error, including

contamination‟ pp 28

(All from Vincent Report, 2010)

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Other Issues • Lack of criminalistics approach

• Over emphasis on the DNA number

• Poor appreciation and knowledge of the “end to end”

forensic process

• Inappropriate prosecution approach

“The prosecutor submitted that they (jury) need not be

concerned with such matters as when and where the rape of

M could have taken place or the absence of any other

evidence inculpating Mr Jama because the DNA evidence

established his guilt” (pp. 36, Vincent Report, 2010)

If you don‟t ask the right questions, or conveniently ignore

them, you won‟t get the right answers!

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Back To Basics

LOCARD’S EXCHANGE PRINCIPLE

“EVERY CONTACT LEAVES A TRACE”

“Toute action de l‟homme, et

a fortiori, l‟action violente

qu‟est un crime, ne peut pas

se dérouler sans laisser

quelque marque.”

Any action of an individual, and

obviously, the violent action

constituting a crime, cannot occur

without leaving a trace

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Recovery and Collection of Items

• Methods used should, as far as possible,

facilitate subsequent laboratory examinations

• Location of trace materials may help answer in

the interpretation of „what happened‟ – hence,

recovery techniques should attempt to preserve

location information

• If the trace material is large enough to see then it

should be protected or collected

• If an item is damaged try and avoid cutting or

further damaging it

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Damage To Textile

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The three „R‟s‟

You should attempt to record events and actions as

they unfold using notes, and

as far as possible, (and sometimes practical) this

means step-by-step, in chronological order and in

appropriate detail

You Cannot Collect What You

Don‟t Recognise

Evidence

Recognition

Recording

Recovery

CONTEMPORANEOUS

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• Trace materials can be of biological, chemical or physical

origin

• Biological trace can include material of human origin (skin

cells, semen, faeces, stomach contents, vomit, hairs),

• Animal origin (all of the above plus feathers, fish scales etc.)

• Plant origin (fibres used as textiles, plant debris, pollen, food

residues, illicit drug plants etc.)

• Chemical trace can include – fibres, glass, paint, explosives,

fire debris, metals, soils etc.

• Physical trace is anything which is large enough to have

physical characteristics which can be described and

analysed

Types Of Trace Materials -

Reminder

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A Useful Way To Collect Physical

Materials – The “Druggist Fold”

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Establish A Chain Of Custody

After each item has been individually packaged in

an appropriate container the container must be

• Sealed as soon as possible

• Individually labelled with a unique identifier,

and;

• Items should not be then handled

unnecessarily – the use of transparent

packaging or packaging with a transparent

window discourages packages being opened

up to view contents

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Packaging And Labelling

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Tamper-Evident Seals

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Recommended Packaging

• Separately in paper bags preferably with a see

through plastic panel CLOTHING

• In paper bags which are breathable. Plant material such as cannabis will quickly mould in plastic bags PLANT MATERIAL

• Where possible dry before packaging. If on clothing preferably dry flat. Liquid blood should be placed in a suitable vial containing the preservative EDTA

WET BODY FLUIDS

• As with wet body fluids, where possible allow to dry. Do NOT actively dry by applying heat

SWABS FOR BIOLOGICAL

TESTING

• Place on folded clean paper – called a druggist‟s fold – then place in a snap-seal plastic bag. TRACE EVIDENCE

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UK Crown Prosecution Service (CCPS) for experts

RETAIN

You should retain everything including physical, written and electronically

captured material

RECORD

The requirement for you to commence recording begins at the time you

receive instructions and continues for the whole of the time you are involved

REVEAL

You are required to reveal everything you have recorded

When compiling your report/statement you should ensure due regard is

given to any information that points away from, as well as toward, the

defendant(s)

You must not give expert opinion beyond your area of expertise

RETAIN – RECORD - REVEAL

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Collecting Hairs – Is It Worth

The Effort?

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Hair Growth Phases

(a) Anagen hair root

(b) Catagen hair root

(c) Telogen hair root

Diagrammatic representation of

hair follicles at different stages

of the growth cycle. Anagen is

the active growth phase during

which follicle development

takes place and the hair fibre is

produced. Catagen is the

regression phase in which

tissue changes occur as the

follicle approaches telogen, the

resting phase.

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Microscopy Of Hairs

Features of

Caucasian Hair

Comparison

Microscopy

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• All 2-3 million hair follicles are present at birth

• The scalp has about 100,000 to 150,000 follicles

• About 90% of scalp follicles will be in telogen growth

phase at any one time

• About 6-8% of scalp follicles will be in telogen growth

phase and 2-4% in catagen growth phase

• Telogen hairs are removed by normal activities such as

grooming and are, hence, most commonly present as a

„trace‟ material

• About 95% of hairs recovered in forensic work will be

telogen

• Until recently it was not possible to obtain a nuclear DNA

result from telogen hairs

Facts About Human Hairs

BUT

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Examples of Telogen

Hair Roots with >30

Nuclei Harris’s

Haematoxylin Staining

(a) (b)

(c) (d)

(e) (f)

The cell nuclei are

round to oval-shaped

and appear dark violet

colour.

Images (a), (c), (d)

and (e) classified as

possessing follicular

tags

Image (b) has a

germinal nipple.

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Key To A Successful Hair Examination Is

An Adequate And Representative Known

Sample

Forensic cases may have tens to hundreds of recovered hairs

and microscopy still plays a key role in selecting hairs for

DNA testing

SCALP HAIR

•Combed

•Up to 100 but number is less

important than ensuring any visible

variation in length and colour is

represented

PUBIC HAIR

•Comb to recover loose hairs which

may be „evidence‟

•Plucked hair 20-30

Collect in a druggist fold NOT a plastic

container

Cut ONLY as a last resort and at skin level

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1. It establishes the elements of a crime. For example, testing

suspected controlled substances proves they are drugs and

thus, that a crime has been committed.

2. It associates defendants with crimes or disassociates them.

- Forensic evidence (particularly fingerprint and firearms

evidence) can conclusively associate a defendant with a

crime

- Forensic evidence such as blood, semen, hairs and fibres can

also tentatively associate a defendant.

3. Forensic evidence can help exonerate a defendant when

laboratory results are inconclusive or when they definitely

disassociate the defendant from the crime.

4. It helps reconstruct the crime or the crime scene.

ROLES OF FORENSIC SCIENCE IN THE

CRIMINAL JUSTICE SYSTEM (CJS)

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Expert Witnesses Section 76 Evidence Act 1995 (NSW)

The Opinion Rule

“Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion is expressed.”

The Exception –

“A witness can express an opinion that is

based wholly or substantially on specialised

knowledge acquired through study, training

or experience – that is, the expert opinion”

(s 79)

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Six Steps for Admissibility of

Expert Witness Testimony For expert evidence to be admissible:

• It must be agreed or demonstrated that there is a field of specialised knowledge

• the witness must demonstrate that they are an expert in an aspect of the

specialised knowledge by reason of specialised training, study or experience

• the witness‟s opinion must be based wholly or substantially on their expert

knowledge

• The facts that the expert bases his or her opinion on, must be established as

evidence either by the witness or another witness

• It must be established that the facts on which the opinion is based form a proper

foundation for it; and

• The expert must clearly explain the logical basis of their

opinion and how it relates to the established evidence in

their expert knowledge

(Makita (Australia) Pty Ltd V Sprowles [2001] NSWCA 305

by Heydon J A at para 85)

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The standard features of all Australian Codes of Practice

include:

• an expert witness has an overriding duty to assist the court

impartially on matters relevant to the witness‟s area of

expertise and is not an advocate for a party;

• an expert witness must work cooperatively with other

witnesses;

• a report by an expert witness must set out all the facts and

assumptions on which the expert‟s opinions are based and

must note any matters that qualify those opinions; and

• if an expert witness changes opinion, the witness must

prepare a supplementary report.

Codes of Practice for

Expert Witnesses

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“the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel has a duty to see all available legal proof of the facts is presented. It should be done firmly and pressed to legitimate strength, but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing.”

(From: Ontario Crown Prosecutors Policy)

Do you think prosecutors always avoid the

notion of winning or losing?

Purpose Of A Criminal Prosecution

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Understanding and respecting each others roles and

responsibilities is the key to better outcomes for all in

the CJS

(From: Lynch, V.A., 2006. Forensic Nursing Science, Chapter 1, in “Forensic Nursing. A

Handbook for Practice, Ed. Hammer, R.M., Moynihan, B and Pagliaro, E.M.. Pub. Jones

and Bartlett.)

“Crime and violence bring together two of the most

powerful systems that impact on the daily lives of

citizens throughout the world: Health and Justice”

“The forensic nurse examiner represents one

member of an alliance of healthcare providers, law

enforcement officials, and forensic scientists joined

in a holistic approach...”