Legal Aspects

Legal connotations for forensic archaeology.

Forensic Archaeology is the application of archaeological principles pertaining to the law (Hunter and Cox 2005). There are many similarities between forensic archaeology and the law as they both reconstruct the past and apply analytical methods to the evaluate facts.
Major changes in police powers were enacted through The Police and Criminal Evidence Act 1984 (PACE) and subsequent creation of The Prosecution of Offences Act 1985.  This led to the differentiation of investigative and prosecuting responsibilities between the police and Crown Prosecution Service (CPS).  This is important since a forensic archaeologist has no independent legal powers and must work under the control and budget of the police and therefore under the authority of PACE (1984) (Hunter and Cox 2005).
Code B of the revised PACE act (that came into effect on the 1st February 2008) is of most importance to forensic archaeology.  It addresses police powers to search premises, seize evidential property and subsequently retain it.  This includes the search and recovery of buried human remains.
PACE (1984) requires searches to be conducted with minimum disturbance to property and according to both Hunter and Cox 2005 and Shultz and Dupras (2008) best practice is to use non-invasive techniques (i.e. line searching, cadaver dogs, etc) followed by Invasive techniques to minimise loss of evidence and maximize the potential of a crime scene (Godwin 2000).

The PACE act (1984) grants the police powers of arrest of a suspect that can be initially detained for 36 hours and further detained up to a maximum of 96 hours for an indictable offence.  The “custody clock” has certain connotations for a forensic archaeologist during the investigation as they may be under pressure to provide enough preliminary information to assist in the gathering of information and interrogation of a suspect.  Priority of certain procedures may be needed in order to best support the investigating officer (Hunter and Cox 2005; Slapper and Kelly 2009).
The forensic archaeologist would need to examine, recover and record all evidence ensuring the integrity of exhibits and maintaining the chain-of-custody so as to avoid cross contamination.  They would be expected to keep all records in accordance with the Criminal Procedure and Investigation Act 1996 (CPIA).  This extends to communications that the forensic archaeologist may have with the police, other experts, reports of work undertaken and schedules of scientific material used as far as relevant to the investigation (Hunter and Cox 2005).  These details will subsequently form the basis for their report and expert testimony in court (Hunter 1996; Shultz and Dupras 2008).

Human Tissues Act

When working with human remains historically the forensic archaeologist had to be aware of the Human Tissues Act 1961 (HTA) which governed the removal of remains for research.  Similarly the Anatomy Act 1984 required that individuals or institutions holding human remains had a license issued by the Home Office.  However the Home Office issued revisions to the HTA in 2004 with the intent of bridging gaps in the law and setting a consistent legal framework relating to the taking and retention of human tissue.  As stated in the Briefing for Forensic Pathologists 2004 (released with the act) the Act replaces the Human Tissues Act 1961 and the Anatomy Act 1984.  For forensic archaeologist this means that under the Revised Act, consent is not required to seize or retain material for criminal justice purposes as this falls outside the provisions of the act.

Role in court

Evidence provided by experts is increasingly sought after and relied upon by lawyers and will continue to be.  This is due to the recognition of expert evidence and its implications, the development of new scientific techniques, streamlining of existing testing methods and the development of new fields such as forensic archaeology (Hunter and Cox 2005).
The expert forensic archaeologist must be adequately prepared for trial in order to effectively present their findings and their conclusions to the court.  Under the Crown Court Rules (Advance Notice of Expert Evidence) 1987 a draft written report is sent to the instructing lawyer and “legal professional privilege” means that the report need not be disclosed to the opposing party at this stage, nevertheless consultation with legal advisors should remain proper at all times to avoid an unbiased report. The final written report covering the proposed testimony will be handed over to the other side and as a forensic archaeologist he or she would need be able to defend any incomplete or misleading information about the crime scene during cross examination (Hunter and Cox 2005).

Expert witness

Presentation of expert evidence can be vital for a case and is entirely in the hands of the counsel.  In court a forensic archaeologist must be aware of the contents of their report as the counsel is not allowed to ask leading questions during the examination-in-chief.  Conversely leading questions are allowed to be made by the opposing counsel so the expert forensic archaeologist should expect query over technical issues and any weaknesses in their report during cross-examination (Hunter and Cox 2005).
In a crown court, as part of the CPIA 1996 requirement, the defence must disclose the intended line of defence to the prosecution (ref law book??).  This defence statement may have implications for the expert forensic archaeologist during cross-examination as the way in which they will question and scrutinise the expert.

Other areas of scrutiny

“Hearsay” and “Opinion” evidence is not normally allowed in court but given that the purpose of an expert witness in court is to allow them to express expert views, this is a particular circumstance in which this type of evidence is allowed (Matson et al 2004, Hunter and Cox 2005).  A forensic archaeologist appearing in court should be prepared to defend both their qualifications and experience.  If necessary this may extend to convincing the court of their competence and position as expert.
A further area of cross-examination can be in proving a complete chain-of-custody in handling samples and prevent contamination.  This is in order to avoid contention over the possible interference with the integrity of evidence and is something that the forensic archaeologist should always bare in mind.
As new scientific techniques and theories emerge their validity and admissibility in court must be considered by a judge.  While judges in the US rely on a set of guidelines to assist in this process, judges in England and Wales have no standards for qualifying new scientific techniques for court (Munshi 2005).  In the field of forensic science and in particular the field of forensic archaeology, the use of new techniques can be groundbreaking but can open up a particular area for attack through cross examination in court.   If it can be proved that a genuine difference of opinion exists between the forensic witness and other experts and likewise scientific knowledge on the subject is incomplete then the defendant is entitled to the benefit of any reasonable doubt (Hunter and Cox 2005).
Ultimately the forensic archaeologist should always be concerned with providing objective scientific results.

(Suit and tie image curtesy)