Asymmetric politics and forensic intelligence

The vast majority of forensic service providers are governmental and operate in a political environment. Politics can, for better or worse, overrule science when it comes to operational decisions (policy, financial, perceptual). Therefore, forensic service providers may be subject to adverse outcomes because of political decisions.

As agents of the state, governmental forensic service providers are dependent on their jurisdictional clients (police, prosecutors) for their raison d’être. In this context, dependence means that one entity (the dominant one) can expand and be (more or less) self-sustaining while others (the dependent ones) can do this only as a reflection of that expansion. This subsidiary expansion can have a positive or negative outcome for the dependent entity. Dependence means an asymmetrical power relationship between the two, with the subordinate entity having little or no ability to grow, change, or expand; without significant change, the subordinate is relegated to economic and political dependence [1]. “In essence, if the rules of the game are biased against you, then you have two choices: to continue to play by the rules and thus continue to be exploited or to rewrite the rules in a way that does not leave you at an unfair disadvantage” [2]; page 330).

Suggestions to rewrite the rules came in the form of the National Academy of Sciences' recommendation in 2009 that forensic service providers be administratively or financially independent of law enforcement-based parent agencies:

“Scientific … assessment conducted in forensic investigations should be independent of law enforcement efforts either to prosecute criminal suspects or even to determine whether a criminal act has indeed been committed. Administratively, this means that forensic scientists should function independently of law enforcement administrators. The best science is conducted in a scientific setting as opposed to a law enforcement setting. Because forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.” [3], pages 23–24).

Suggesting is one thing, success is another. Several jurisdictions have attempted independent forensic agencies with varying success. Power imbalances still exist in these so-called experiments, leading to adverse selection and moral hazards. Adverse selection occurs when buyers and sellers have access to different information, leading to undesired results. If a bank set one price for all checking account customers, it will lose money on both the low-balance and high activity customers. Likewise, if police and attorneys demand that all cases are a “priority”, then none can be: All suffer equally. Moral hazards result when one party takes risks because they will not incur the potential cost of taking it. For example, when a prosecutor demands that evidence be tested even though experts from the dependent laboratory explain that the results will not provide useful information (like testing a handgun for the DNA of the person who had the gun in their possession at arrest), the prosecutor is incurring a risk of resources on the laboratory. Unnecessary work needlessly consumes resources, wastes time, and delays the working of meaningful evidence. Without realizing it, the prosecutor is also incurring an opportunity cost by slowing down the lab's responsiveness on the next case.

Asymmetric information begins a downward spiral, with relational and operational imbalances leading to adverse selection and moral hazards. Ultimately, this may result in market failure, where the allocation of resources is not inefficient. If other conceivable outcomes exist where a situation can be improved without another being made worse, then there is market failure. Multiple scenarios for forensic science provision are possible which would improve the quality and delivery of the science without adversely affecting justice outcomes. Arguably, the forensic industry is approaching or even experiencing a type of market failure. A potential example of forensic market failure can be seen in the crisis in forensic science provision in the United Kingdom leading to an inquiry by its House of Lords.1 Failure, regrettably, is an option.

This asymmetry places forensic services in a passive, receptive space: Submit the evidence and wait for the reports. This transactional relationship combined with the organizational priority of policing over science means that forensic science is seen as an operational cul-de-sac rather than an equal partner in the investigative process. And yet, the use of forensic intelligence, or at least that phrase, expands unabated [4]. Why is forensic science not used as an active component in criminal investigations? Three barriers [5] have been discussed that limit the greater engagement in the creation and use of forensic intelligence: Organizational, individual, and collective. The organizational barriers, discussed briefly above, mean that isolated individuals (forensic experts) are only brought to the foreground on complex or high profile cases. This leads to individual barriers, where potential participants do not see the value they could bring to the criminal intelligence sharing process, overestimate the work involved in full participation, and ultimately do not know how to contribute to the process (US Department of Homeland Security[10]. Finally, the collective barrier consists of the cumulative effects of the other two resulting in intelligence-led information is never actually transformed into intelligence products [6]. Ross [5] further lists additional barriers to specific to forensic agencies:

• ●Intelligence analysis and reporting does not comply with traditional quality assurance demanded by accreditation,
• ●A reticence among forensic scientists to disseminate ‘soft’ information or preliminary reports for fear it will be used against them in court,
• ●Forensic laboratories lack awareness about the needs of partners in policing,
• ●Many forensic agencies lack IT systems that are fit for intelligence purposes, mostly connectivity and integration.

These barriers would need to be addressed in any comprehensive model that supports the integration of forensic information into the criminal intelligence process.

One model that offers hope is that of strategic interaction by Arreguin-Toft [7]. Although discussed in terms of state-level interaction between nations, the concept still applies. The de-militarized discussion goes as follows. For every strategy, there is a counterstrategy and if one is able to discern and predict another's strategy then chances for a positive outcome increase. Arreguin-Toft says that there are two approaches to strategies and counterstrategies: Direct and indirect. The direct approach targets the other's capacity to fight while indirect targets the other's will to fight. The interaction of these approaches is dynamic and largely suggests how the outcome will play out:

Same-approach interactions (direct-direct or indirect-indirect) imply defeat for weak actors because there is nothing to mediate or deflect a strong actor's power advantage. These interactions will therefore be resolved quickly. By contrast, opposite-approach interactions (direct-indirect or indirect-direct) imply victory for weak actors because the strong actor's power advantage is deflected or dodged. These therefore tend to be protracted, with time favoring the weak [7]; page 105).

Strategic interaction is thus applying opposite approach counterstrategies against a more powerful opponent. Strong actors tend to employ direct-approaches “in proportion to their advantage of relative power” [7]; page 122). Strategic interaction by a weaker actor can cause a stronger actor to delay the commitment of resources and the attainment of objectives. The stronger actor tends to lose because the conflict drags on, leading to a doubling-down of resources and effort against a weaker actor because of the stronger actor's assumption of an easy win. Public knowledge of the conflict is key: As the conflict drags on, public pressure will increase to stop the conflict and re-direct resources. The longer a conflict drags on, the more likely it is that the stronger actor will abandon it or lash out and act in ways that violate the norms of the conflict context. Once these violations become public, the weaker actor gains character and support. In these situations, stronger actors tend to lean on their asymmetric power and use same-approach interactions rather than follow a strategic interaction approach. Arreguin-Toft ([7], page 122) summarizes the overall schema:

For weak actors, successful defense against strong actors depends on an indirect strategy. Because indirect strategies … rely on social support, weak actors must work tirelessly to gain and maintain the sympathy or acquiescence of a majority of the population in question … Additionally, weak actors must have or gain access to the physical or political sanctuary necessary to make an indirect strategy a viable choice.

Absent a political and structural break from law enforcement oversight--not coming anytime soon--and the leadership or infrastructure in the forensic industry to do the sorting, forensic service providers need to think more strategically about their role in the criminal justice system, how to allocate resources to best manage demand, and to garner political and public support to offset their asymmetrical power position. Working to better integrate forensic information processed as intelligence [8,9] is one way to begin to create more transparent interactions and re-balance the value forensic science can bring to a fair and accurate justice process.