Questioned Documents Section: Don’t Forget the Brake Pedal – Cognitive Bias; “Myth”ing the Point

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Source: Thomas W. Vastrick, BS, Section Chair

We are in a time in which substantive changes to the forensic sciences are being made at unprecedented levels and speed. History teaches us that tumultuous movements often include unintended over-swings of the pendulum that result in counterproductive, unforeseen actions and just plain bad ideas being swept in with the tide. As such, please accept the spirit of this article as a voice of caution that the changes that we make can have secondary and tertiary consequences that have the potential of creating primary disasters. We owe it to our future brethren to proceed – but judiciously.

In the recently-completed AAFS program, members heard from speakers who are sounding the alarm over cognitive bias. As professional and ethical scientists, we should all be horrified at the thought of bias being an influence in our work – inclusive of our own selves. All too often, I have personally seen bias permeate the work and testimony of alleged experts. It is sickening. Obviously, it would be impossible for us to self-determine whether we are allowing unintentional, subconscious bias to creep into our own work. However, again as professional and ethical scientists, we should have no problem with accepting non-evasive steps that have the potential of ensuring against bias creeping into our work regardless of our personal belief concerning the existence of such a problem, as long as the proffered remedies do not create their own set of new problems.

The results of limiting information provided to a forensic document examiner could have untenable secondary effects thereby making an appropriate examination impossible. Outside influences such as medical conditions, injuries, legal medications, illegal “medications,” emotional disorders, and emotional state are just a few of the extrinsic issues that an examiner should have available in order to accurately assess the handwriting characteristic similarities and discrepancies during the course of a proper examination. Because this kind of information is case-specific and the forms of outside influences are so wide and varying, it would be impossible to create a list of acceptable and unacceptable subjects of which the examiner should have available to them. Should one follow the “logic” of eliminating bias-creating information from an examination, an outside source would be responsible for deciding what information to provide and what information to withhold. But who exactly is qualified to make this decision? There is no outside source qualified to make this decision. Only the forensic document examiner is properly qualified to make that distinction in each case-specific examination.

So how can we address the potential bias in our work while maintaining the integrity of the examination itself? One answer commonly overlooked is the use of opposing experts as a method of checks and balances. Allowing bias-creating information to affect one’s examination methodologies, data collection methodologies, report writing, or testimony is error, pure and simple. An opposing expert can point out those errors and specify where they occurred. It is certainly not a perfect solution as it can be correctly pointed out that the opposing expert can also be influenced by bias. However, far more frequently one will find that the checks and balances method of opposing experts will result in a consensus, but independently-reached, conclusion that negates the possibility of bias-influence in the matter at hand.

One common recommendation has been a “line-up” of several specimen writers. If a forensic document examiner has equivalent handwriting specimens from several writers with the absence of any superfluous information that might tend to spotlight one or two of the subjects, it is hypothesized that the examiner would not have any indicator of who might be a primary suspect or who the submitter thinks is the actual writer. In theory, this appears to be a sound suggestion and in many instances this methodology would work. However, should there be serious consideration to writing this process into standard methodology, one must also consider that there will be more than a few instances in which this methodology would not work. For example, certain civil attorneys may not have access to proper handwriting specimens from other writers in order to create an appropriate line-up. In some criminal matters it may be difficult to come up with properly dated material for comparison. In all the aforementioned cases, if medical information or other such personal data was required for the examination, a line-up method would prove impossible and falsely creating such information would fatally taint the evidence. It may not be necessary to abandon this idea, but any written recommendations should contain sufficient caveats so as not to create a standard that can be turned against the examiner who did not use the line-up method for appropriate reasons.

In addition to taking a judicious approach to change, we must also work to avoid bringing misconceptions into our evolution. Embracing change necessarily means that we must all embrace change. An atmosphere that “you” need to change but not “me” will result in failure. For example, numerous individuals have stated that attorneys who provide bias-creating information cannot be held responsible for initiating the transfer of this information. Insistence that charges of some form of misconduct toward the speaker is somehow reflective of a violation of one’s constitutional right to freedom of speech is incorrect. While there would be potential consequences for such statements, a consequence is far different than restriction of constitutional freedoms.

These are but a few examples demonstrating the need to carefully review the potential unintended negative effects that change can bring. As long as we take great care in fully understanding the impact of our decisions and proceed with tremendous caution and open input from all area practitioners affected, it is expected that these changes will be positive.