Forensic Art in Court
Forensic Art in Court
What Makes Evidence Admissible?
Witnesses have been interviewed. Evidence has been collected. Crime scenes have been studied, and a suspect has been tracked down, arrested, and brought to trial. This is the progress investigators and their team of forensic experts like to see with every case. The courtroom, however, brings its own set of challenges to a case. The suspect, now called a defendant during the trial, does not always confess to the crime. Indeed, the defendant is not always guilty and is presumed innocent until proven guilty. The prosecutor is the lawyer trying to prove that the defendant is guilty, and the defense attorney is the lawyer trying to prove the defendant innocent. Both lawyers present all the evidence they have and give their best arguments.
The people who decide whether the defendant is innocent or guilty are the members of the jury—the group of everyday people chosen to hear both sides of the case. Jury members are typical people, who may know little or nothing about the methods used to solve crimes. It is up to the lawyers to present methods and evidence in a way that jurors will understand.
The strongest evidence in the world is of no use if a jury cannot understand it. Lawyers often face the tough job of explaining very technical things to jury members who have never heard the information before, but the best lawyers make the most of this opportunity and try to capture the jury’s interest in their side of the case. “What may be routine to the technical expert can be fascinating to a lay juror who is trying to follow the story,”59 say authors Fred Chris Smith and Rebecca Gurley Bace in A Guide to Forensic Testimony. Helping jurors do that—follow the story—sometimes requires an artist’s touch.
A Case of Misplaced Identity
Shortly before 1 A.M. on March 9, 1997, rap singer Biggie Smalls was leaving a party in a GMC Suburban when a Chevy Impala pulled up alongside his car. The driver fired several shots into Biggie Smalls’ chest. Biggie died moments later.
Two of Biggie’s companions saw the shooter and helped police make sketches of the man. One sketch was made the next day. One was made eighteen days later. The two sketches looked nothing alike.
Suspiciously, neither sketch was released to the media until two and a half years after the shooting. Even then, only the second sketch was released. Police claimed no one had kept a copy of the first sketch made the day after the murder—which is very unusual, because a composite sketch is considered an important clue in solving a crime, and because police departments often carefully store these early sketches.
The “loss” of an important composite sketch was just one of a long string of police mistakes that cast doubt on the whole investigation. Some people believe there were police officers involved in the rap star’s murder. The case is still unsolved.
Forensic art often enters the courtroom in the form of visual aids—tools that the lawyers on both sides use to illustrate important evidence in a way the jury will understand.
Crime Scene Sketches
The scene of a crime is often at the center of courtroom battles. The place where the crime happened is filled with evidence and the answers to many questions. How did the perpetrator enter and get away? Where were the witnesses? Where was the victim? Jurors want and need to know the story of the crime, and they usually need to see the place where it happened.
Crime scene sketches are a standard part of crime investigation. Wherever a crime takes place—on a busy sidewalk, for example, or in a bank, or in someone’s living room—eventually, police must take down the yellow crime scene tape and allow the area to be cleaned up and used again. Before they do, they must have a record, in photographs and sketches, of how the scene looked right after the crime. The criminal may not be caught for months or years, and there will be no way to remember the crime scene exactly unless there are pictures and drawings. “Sketches help investigators recall details of the crime scene,” says Barry A.J. Fisher, director of the crime laboratory for the Los Angeles County Sheriff’s Department in California. “They also aid prosecutors, courts, and juries to better understand the crime scene.”60
A crime scene sketch is different than the photographs that are taken at the scene. The photographer is recording specific items that might be important in the investigation and in court: for example, the position and condition of the victim’s body, a weapon that may have been used in the crime, or footprints that appeared at the scene. Sketches, on the other hand, show how the entire crime scene looked. “Sketches clarify the appearance of the crime scene and make it easier to comprehend,” says Fisher. “Photographs alone are not sufficient.”61
Sketches usually show a floor-plan view of the crime, as if looking at the scene from straight above. Although they are not meant to be artistic, they are important pieces of forensic art when they are used in the courtroom, showing the position of the victim relative to other objects in the scene as well as the placement of weapons, the precise distance between furniture, doors, and windows, or other details that help to explain how the crime occurred and the condition of the scene when it was discovered. “A crime scene sketch is not considered an architectural drawing,” says Fisher. “Sketches sometimes leave out important information or contain errors. Yet despite these drawbacks to and problems in making crime scene sketches, they do provide important information and, when done properly, are very helpful.”62
Show and Tell
The use of visual aids such as crime scene sketches and photos can be a turning point in a court case. The difference between just explaining to a jury what happened and illustrating it with visual aids can be the difference between a verdict of guilty or not guilty. “The story is only the beginning,” say Smith and Bace. “Showing is as important as telling.”63
The skills of forensic artists and computer graphics experts may be used to create the kinds of visual aids lawyers depend on in court. Diagrams and sketches of the crime scene may be combined with flow charts showing the events that happened. Graphics and drawings can help explain complicated things such as DNA analysis. Drawings of the bodies of murder victims show exactly how many wounds there were, and where. Computer presentations and slide shows make testimony more interesting and meaningful, and forensic artists can help prepare all of these things.
“Visual aids are being used more frequently in the courtroom,” says Janet Vogelsang, a South Carolina social worker who frequently testifies in court. “People are more likely to remember what they see than what they hear. Studies show that jurors will remember 65 percent of a demonstrative presentation after 17 hours, but only 10 percent of oral testimony alone.”64
Forensic artists usually have training in the anatomy of the human body, and this, along with their drawing skills and knowledge of computer technology, make them a perfect source for medical examiners and prosecutors to turn to when they need to make their case in pictures. In this way, forensic artists may work behind the scenes for a court case. Sometimes, though, they themselves must make a presentation to the jury to explain a composite sketch, an age progression, or other evidence created with their own hands.
Testifying in Court
When forensic artists are called to the witness stand, it is usually as an expert witness because of their special knowledge about art and forensic science. “Since forensic art is one of the most unusual professions,” says forensic artist Lois Gibson, “any experience or training will be highly specialized.”65
As expert witnesses, artists can usually give their opinions about a sketch or other form of art to help prove a case. Sometimes, artists are called to the stand by the prosecution. Sometimes, they are called by the defense. Either way, they may be asked to explain and defend their own art to the jury, usually because it led police to the suspect who is on trial. “The purpose of forensic art is to aid in the identification, apprehension, and conviction of criminal offenders,” says forensic artist Karen T. Taylor. “A logical ‘follow-up’ to production of the artwork is that appearance by the artist in a court of law may be required.”66
Forensic artists are often asked in court exactly how they came up with the drawing and how certain they are that it is accurate. These can be hard questions to answer, especially if the drawing looks very little like the defendant sitting in front of the courtroom. Gibson, who has testified in more than sixty trials, says, “No artist can do a perfect portrait of a person even if he or she can see that person. Therefore, any jury will accept
that a forensic sketch will have imperfections. If the artist can explain that certain imperfections commonly occur, it will allow the court to understand the witness was remembering just as well as hundreds of other witnesses to crimes where the proven perpetrator was identified, tried, and convicted.”67
Just the same, jurors may question the work of a forensic artist. Making a forensic composite requires the witness’s memories (which may not be all that reliable) and the artist’s ability to put them down on paper (which the jury might also believe is not that reliable). To avoid these problems in court, professional forensic artists are careful to record, or document, what they are doing during every piece of art that they produce. This way, they can easily answer questions that could be asked later in court. They write down the details of their interviews with witnesses, for example. If they are ever asked about their process in court, they can then show their written record of what the witness said and how this information was used to create the drawing. “After all,” says Taylor, “the finished drawing is, in fact, the witness’ statement and the documentation of his or her memory.”68
Experienced artists do not ask for specific numbers in their interviews with witnesses, because these are the kinds of details that could later be questioned in court. Artists usually do not ask witnesses for a suspect’s weight in pounds or age in years, for example, but instead use terms such as overweight or thin, teens or early twenties. In court, specific numbers only set up a case for reasonable doubt that the defendant is the person the witness remembers. If a witness claims a suspect was thirty-five to forty years old, for example, and the artist writes this age on the composite, the defense attorney might challenge the entire sketch if the defendant is only thirty-four. “I avoid exact numerical ages in writing,” says Gibson. “If you are not certain about something, do not put it in writing.”69 She says that she actually commits to very little in writing. “No defense attorney has been able to call into question his client’s guilt over anything I put in writing on my drawings in court,”70 she explains.
Whether a sketch looks like the defendant or not, and whether it was well documented or not, forensic art is one area of any court case that is highly likely to be questioned by attorneys and by the jury. Many successful forensic artists never get called to testify during the course of their careers, not because their work is poor quality or because they are not honest and ethical but because forensic art—a sketch or an enhanced photo, an age progression or a reconstruction—is very hard for attorneys to present as reliable proof in court. Although it has helped solve many cases, it has also been known to seal the fate of the wrong person entirely, and this has given it a bad reputation in the courtroom.
Using Sketches in Court
In 1981 Jerry Miller was sent to prison for committing rape in a parking garage in Chicago, Illinois. He spent twenty-five years behind bars for the crime—a crime he did not commit. Miller was freed from prison in 2007, when DNA evidence finally proved he was not the rapist.
Miller’s conviction had centered on a composite sketch and the memories of two different witnesses who pointed their fingers at Miller. Sadly, he is not alone in having been both mistakenly accused and convicted. Other wrongly accused people have spent time in jail simply because someone said they looked like the person who committed a crime.
“Mistaken eyewitness identification is a major problem,” says attorney Lisa Steele, a member of the National Association of Criminal Defense Lawyers. “Eighty-five percent of the convictions overturned by DNA evidence have involved a mistaken eyewitness.”71
Some composite sketches are so accurate, and look so much like the defendant, it seems the entire case could be made on the strength of the composite alone. The New York Court of Appeals says this might be the entire problem, if police all along were searching for someone who looked like the composite sketch instead of someone who actually committed a crime: “One thing is certain: if the sketch is right it will resemble the person accused, and if the sketch is wrong it will resemble the person accused. Indeed, the accused—innocent or guilty—is supposed to look like the sketch.”72
This is not to say that forensic artists, even in cases that end in sending the wrong person to prison, have done anything wrong. They are merely putting down on paper what a witness claims to remember about the way the offender looked. In many ways, it is no different than a police officer’s taking a witness’s statement about what happened during a crime, and courts do not allow witness statements to be used as evidence unless the witnesses themselves take the stand. Because forensic artists do not actually observe the crime or the criminal, some courts consider sketches to
What Makes Evidence Admissible?
Admissible evidence is evidence that juries are allowed to see during a trial. Inadmissible evidence is evidence that is not allowed to be presented in the courtroom.
Evidence may be determined to be inadmissible by a judge for the following reasons:
1 It is unreliable. It does not come from a recognized expert in his or her field.
2 It is hearsay. It comes from a secondhand witness—someone who does not have personal knowledge of the evidence, but who just heard about it from someone else.
3 It would upset the jury too much. Graphic photographs of murder scenes and victims are often inadmissible.
4 It was gathered using illegal methods.
When composite sketches are not allowed in a courtroom, it is usually because they are considered hearsay. The person drawing the sketch did not actually see the suspect or witness the crime.
When enhanced images, such as photographs or video footage, are not allowed in a courtroom, it is often because the process of enhancing them could be considered an illegal method of getting evidence.
Forensic artists and forensic image experts must always be careful to follow legal procedures exactly, or their art may not be used in court.
be hearsay—something one person heard another person say about the crime. These courts do not permit “he said” or “she said” testimony, so forensic sketches cannot be used as trial evidence.
It is important to remember, however, that in any court case a lawyer’s argument against the accuracy of a sketch has nothing to do with the artist’s ability to interview and draw or with the artist’s honesty and integrity. A defense lawyer is doing his or her job by questioning any evidence presented against the defendant, particularly if the only evidence is the forensic art.
Using Photos in Court
Somewhat different problems can turn up when photographs instead of sketches are presented in court as evidence. Unlike a composite sketch, which even the artist admits may not look like the real offender at all, a photograph may be considered a real and true image of whatever is depicted. A long-held belief has been that if a photo exists, then so did the person, object, or scene that the photo shows. In today’s world of digital photography, however, this assumption is no longer true.
If it is possible for photographers such as Anne Geddes to show a newborn baby sleeping in the middle of a giant tulip, it is also possible for any photographer or forensic image expert to place an innocent person in the middle of a crime scene. This possibility can cast a hint of doubt on any court case. Therefore, whenever a photograph is used in court, especially if it is one that has been enhanced to make it clearer and easier to see, it tends to breed doubt in the minds of lawyers and jurors.
Just the same, photographs are extremely useful in court. To address concerns that photographs might have been tampered with, forensic photographers use something called a chain of custody. This is a written list of everywhere film and footage have been, everyone who has handled them, and everything that was done to them between the time they were taken or obtained and the courtroom. “All evidence needs to have a chain of custody established,” says author Edward M. Robinson, so that the court can be “assured that the photograph being offered in court as evidence actually is an image from the incident in question.”73
Skilled forensic photographers write down what they take pictures of, when and where the pictures are taken, and what the pictures show. “Counsel may, during cross-examination, question the crime scene investigator about objects shown in photographs,” says John Horswell in the book The Practice of Crime Scene Investigation. “If there are no notes on the items, it may prove embarrassing.”74
Even worse than embarrassing, it can raise questions about whether the photograph might have been retouched to make someone look guilty. For example, if a frame of surveillance camera footage has been enhanced, the jury may doubt that the license plate number it shows is real, and wonder if the forensic image expert added in his or her own numbers. Such questions lead some courts to refuse enhanced photographs as evidence in a case, much the way composite sketches may be rejected.
“The knowledge produced by surveillance cameras always involves interpretation,” says Aaron Doyle in his book Arresting Images: Crime and Policing in Front of the Television Camera. “Those who have the power to interpret the images—who produce the authorized definition of the situation—are the ones who hold the upper hand.”75 Judges and juries may therefore be skeptical of any enhanced image offered as evidence in a case.
Imperfect Proof
Forensic art can be successful even when it is not perfect, and it can do its job even if it can never be used as evidence in a court of law. “Police composite sketches are critical investigative tools,” states the New York Court of Appeals. “They winnow the class of suspects from the infinite down to a lesser number of people.” However, the court says, “a witness is not a camera
and a sketch artist is not a photographer.“76 In other words, no good case can revolve completely around a piece of forensic art, because art is not proof that someone is guilty. Instead, forensic art is a means to an end. “Law enforcement should use this as a starting point, not the end point,” says Taylor. “Direct evidence will be needed to secure a conviction.”77
Forensic artists and forensic image experts are often the ones who give police that starting point. Whether they create sketches or facial reconstructions, enhance photos or perform age progressions, they are part of a larger team of forensic experts who depend on them. For this reason, they have a place of honor on investigative teams working criminal and missing person cases.