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Evolving Practice Parameters of Forensic Criminology

As originally published by Handbook of Forensic Sociology and Psychology,, 2014.

By: Dr. Daniel B. Kennedy

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As is probably true for many of us in the workplace, my career has not turned out quite as I envisioned it would some 40 years ago. More specifically, as a beginning graduate student in sociology, I had no idea I would eventually practice forensic criminology or be in a position to write about what follows. In fact, I had never heard of forensic criminology (FC) until years later and, I believe, neither had my academic colleagues. It was only after I began to practice as a forensic criminologist and to identify myself as one that the parameters of this fascinating area of expertise began to reveal themselves more fully to me.

In the early 1980s I was serving as an assistant professor of criminal justice at the University of Detroit. While listening to the radio en route to work one day, I heard a news story about a suicide in the Wayne County Jail. Given my "publish or perish" mode at the time, I decided to study this inmate's suicide and learned, much to my surprise, that a custody suicide can be quite difficult to predict or prevent. After developing a rudimentary theory to explain certain custody suicides, I published an article in a widely read police journal (Kennedy, 1984a) then continued about my standard academic business. Not long after the article was published, an attorney involved in litigation generated by a student's death in a university police department's lockup contacted me. I consulted on that case and then another. Meanwhile, a colleague at Michigan State University who had written about police pursuit collisions was also contacted by various attorneys. Eventually, both of us fielded inquiries about crimes committed on business premises, at educational institutions, in apartment complexes, and at a variety of other property types. I was able to field these inquiries because I had developed a course sequence in private security in order to attract students to replace those lost when the federal LEEP program ceased paying for the tuition of police and correction officers. As time went on, I immersed myself further in the security literature and the publications of the American Society for Industrial Security. The knowledge thus accumulated was to prove extremely helpful in my newfound forensic career.

In a most serendipitous fashion, then, I had stumbled into the litigation explosion (Olson, 1991). The victims' rights movement and a number of appellate court cases, such as Kline v. 1500 Massachusetts Avenue (1970) and Monell v. Department of Social Services (1978), enabled the types of litigation to be described throughout this chapter to go forward (Carrington & Rapp, 1991; Homant & Kennedy, 1995; Kaminsky, 2008; Ross & Chan, 2006). As I was eventually to learn, there was and is a central role for criminological knowledge to play in this consumerist expansion of legal liability generated by crime and the actions or inactions of formal and informal agents of social control (Horwitz, 1990). In essence, security "place managers" (Eck, 2003; Felson, 1995), police officials, corrections officials, and their employers could be held responsible for negligent action or inaction. Just as importantly, however, they were to be exonerated when appropriate.

None of this chronology should be taken to imply that I "discovered" the practice of FC. True pioneers in this field would include Hans Gross at the turn of the twentieth century (Turvey, 2008) and the early contemporary contributions of Marvin Wolfgang (1974). More current FC scholarship may also be found in the work of Kennedy (1984b, 1990, 1993), Anderson and Winfree (1987), Sherman (1989), Voigt and Thornton (1996), Jacobs (2004, 2005), Winfree and Anderson (1985) and, most recently, Petherick, Turvey, and Ferguson (2010).

What I chronicle here in a broader sense is the entry of the social sciences into the courtroom. Ever since a young Louis Brandeis pleaded the now famous "Brandeis Brief" discussing the sociological impact of females in the labor pool, more and more of the human sciences now help clarify issues before judge and jury (Monahan & Walker, 2006; Smith, 2004). There is, of course, a well-established and strong forensic psychology (Bartol & Bartol, 2008; Wrightsman & Fulero, 2005). Also present in the courts are such disciplines as forensic social work (Marchi, Bradley, & Ward 2009), forensic anthropology (Cattaneo, 2006; Rosen, 1977) and, of course, a growing forensic sociology (FS) (Hart & Secunda, 2009; Jenkins & Kroll-Smith, 1996; Mulkey, 2009; Richardson, Swain, Codega, & Bazzell, 1987; Thoresen, 1993). Given that much of American criminology is deeply rooted in sociology, discussions of FS and FC are sometimes somewhat fungible in nature.

Definitions and Domains

When most people encounter the words "forensic criminologist," an image of CSI's Gill Grissom probably springs to mind. On many occasions, I have been treated to comments about blood splatter, ballistics, trace evidence, and the wonders of DNA when conversation partners learn that I am a forensic criminologist. Although I believe a forensic criminologist should know about these things as well as several other issues to be determined at a crime scene, criminology is not criminalistics. Nor is it what most people think of when they think about forensic science.

The word "forensic" is derived from the Latin word "forum," which was a place where public issues were debated (Siegel, 2009). Gradually, the word came to be applied to the courts so that a "forensic" issue meant an issue before the criminal or civil courts. Forensic means "having to do with the law." Science, including behavioral science, when applied to legal problems is forensic science (Gaensslen, Harris, & Lee, 2008). Forensic science would then refer to scientific findings of interest to the court in rendering its decision. Less "scientific" analysis such as pattern evidence analysis would still be described as forensic in nature. If blood-related evidence is to be important in a case, then the term forensic serology is appropriate. If the findings of a psychologist are helpful to a court in resolving a legal issue, we would then be talking about forensic psychology. As will become evident throughout this chapter, forensic psychology and FC overlap in many ways (Canter, 2010). Several of the topics central to forensic psychology are of great interest to forensic criminologists as well (e.g., false confessions, criminal profiling, psychopathic criminals, suicide in custody, police behavior). On the other hand, while criminologists do not generally administer personality tests or evaluate a subject's capacity to form "mens rea," psychologists do not normally compute crime rates or assess the criminogenic nature of urban neighborhoods.

FC is the application of criminological knowledge to issues before the courts. It includes within its scope the scientific study of the making of law, the breaking of law, and societal reactions to the breaking of law (Sutherland & Cressey, 1978). These issues may also be explored on various theoretical levels as in academic criminology or on a more practical level which may become an applied criminology. If presented in court or at deposition, we are now putting forth a FC. For the purposes of this chapter, then, criminology is the scientific study of the etiology, patterns, and control of crime and criminals. Whenever this type of information becomes useful to judicial or jury decision making, we are then describing FC.

As a multidisciplinary field of study as well as a professional practice, FC is pertinent to both criminal and civil courts. Owing to differences between criminal and civil law, insofar as parties, proofs, and penalties are concerned (Abadinsky, 1995; Siegel, 2004), the efforts of a forensic criminologist may be differentially constrained by evidentiary and procedural matters depending on the type of case. Although the nature and quality of criminological analysis should not vary, the scope of the opinions a forensic criminologist is eventually allowed to express will depend not only on the pertinent law but also on the trial judge's interpretation of this law (Buchman, 2007). The criminologist's role is to present evidence relevant to his or her expertise in a dispassionate and objective manner and not to advocate for a given verdict. Forensic criminologists must fully understand they are but guests at a trial. While criminologists may dominate a classroom, the courtroom is run by the judge and the lawyers arguing therein.

Forensic criminologists can make numerous contributions to criminal matters before the court. They can prepare presentence investigations to balance those prepared by state-employed probation officers (Kulis, 1983). They can participate in capital punishment mitigation proceedings (Andrews, 1991; Forsyth, 1998; Hughes, 2009) or opine on gang-involved criminality pertinent to gang enhancement penalties (Yablonsky, 2008). Some criminologists offer criminal profiles which differ from those offered by state-employed current or retired investigators presented by prosecutors (Keppel, 2006; Turvey, 2008; Youngs, 2009). Other forensic criminologists testify as to the validity of confessions (Leo, 2008; Ofshe, 1989), while still others may assist investigators seeking search warrants by attesting to the manner in which certain criminal types gather and hoard contraband. Social scientists have also been able to shed much light on the dynamics of historical child abuse and violence against women (Connolly, Price, & Read, 2006; Portwood & Heany, 2007). These topics constitute simply a small sampling rather than the universe of criminological knowledge available to the courts in their efforts to render criminal justice. Fuller elaboration of the parameters of criminal FC must await another chapter. Given the nature of my forensic involvement over the past 25 years, however, I shall delve more deeply into civil FC for the remainder of this chapter.

Whereas crime and guilt are the foci of criminal FC, tort and liability are the foci of civil forensic criminology (Kennedy & Sakis, 2008). Basically, a tort is a civil wrong, a noncontractual civil liability. One may injure another or do a wrong to another by failing to act reasonably when there is a duty to do so or by acting unreasonably when one should not. While these are certainly not formal legal definitions of negligent or intentional torts (Keeton, Dobbs, Keeton, & Owen, 1984), the idea behind both is that when an individual or a government acts negligently so as to cause unjust harm, this harm must be compensated for, generally in the form of monetary damages. Because issues in tort litigation may involve the failure of a landholder or employer to protect against criminal behavior or may involve the actions of police, corrections, and security personnel, the insights provided by FC in the form of expert reports and testimony can be of crucial assistance to judicial and jury decision making. For example, an apartment complex may be sued because a woman who was assaulted in her unit believes the premises were inadequately secured (Kennedy & Hupp, 1998). Or an employer may be sued under certain conditions for acts of violence in the workplace (Perline & Goldschmidt, 2004; Schell & Lanteigue, 2000). A young man's family may sue the police over what they consider to be the use of excessive force against him (Kennedy & Hupp, 1998), or a prisoner's family may sue corrections officers over an alleged failure to prevent his suicide in custody (Kennedy, 1994; Kennedy & Homant, 1988). More recently, law enforcement investigators and even prosecutors face litigation over allegations arising from miscarriages of justice involving wrongful conviction (Forst, 2004). Because prosecutors, juries, and judges cannot be sued, various "Innocence Projects" have resulted in increased litigation against police agencies which have participated in an erroneous conviction. The above examples are merely illustrative and only begin to describe the wide-ranging legal causes of action involving premises liability for negligent security (Ellis, 2006; Kuhlman, 1989) and the actions or inactions of criminal justice system personnel (Kappeler, 2006; Ross, 2009). Each year, tens of thousands of lawsuits are filed against private landholders, and security, police, and correctional personnel. FC knowledge is integral in varying degrees to virtually all of these cases.

FC in Premises Security Litigation

. . . Continue to article and footnotes (PDF).

Dr. Daniel Kennedy, is FCA's principal consultant and is Board Certified in Security Management. Dr. Kennedy has had extensive specialized training in various aspects of Criminal Behavior, Policing Operations, Corrections Operations, and Private Sector Security Management. He specializes in crime foreseeability issues, appropriate standards of care in the security industry, and analyses of the behavioral aspects of proximate causation.

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