Tomasz Bednarek

Doctor of Juridical Science (J.S.D.)

Head of Forensic Laboratory

Metropolitan Headquarters of  Police

Warsaw - Poland

 

 

LEGAL ASPECTS OF OSMOLOGICAL EXPERTISE

 

Osmology is one of the youngest areas of criminal investigation techniques (forensic science). It uses purpose trained dogs for identification of persons on the ground of scent traces left on various surfaces and objects at scenes of crime.

Although the first attempts of scent identification with use of dogs (1) were undertaken long before - in the seventies of the 20th century, the real turning point in Polish osmology was implementation of "The Guidelines for Preserving, Storing and Human Scent Discriminating with the “K” method” (2) in 1992, as it was the first settlement of osmological expertise procedures in Polish forensic practice. Another significant fact contributing to the development of this scientific discipline was a transfer of the hitherto mentioned procedures from police training and criminal department to the forensic one as entirely individual area of criminal investigation (3).

Osmology, as a method of persons identification has been using by the Polish police for several years only, and therefore it required, in relatively short time, many undertakings to run in its present form as a complete and inter-complementary system. The development of osmological trials system called for parallel work on detailed testing procedures as well as implementation of research and development projects, performing casework for law enforcement and criminal justice, educating future experts, verification of findings, etc. With the same intensity, the training of  scent-discriminating dogs (“analytical research tool”) and scent-dog handlers have been in progress. The methodology of selection, training and testing dogs’ ability to accurately discriminate has also been modified. An important part of the process was  training of Polish scent-dog instructors in Hungary in 1995-96. The compilation of experience from the Hungarian training and national forensic labs in Poland allowed to work out our own methodology of training scent-discriminating dogs provided with instruments substantial to research methodics. At present, the Polish methodology of dog training differs from Hungarian in a measure but the essence is still the same.

Osmology is one of new disciplines of contemporary forensic science stirring up strong emotions since it has been existing in criminal proceedings in Poland. Supporters of human scent identification percesive its value as an evidence while opponents point out many dangers connected with the piece of evidence, on the one hand, basing on testing invisible evidence material (scent traces) by means of  unconvencional “tool” which is a dog, on the other hand.

The aim of  the present speech is to describe, possibly complete and objective, the significance of osmology in to-day criminal proceedings, to indicate stereotypes prevailing among representatives of law enforcement and criminal justice and to consider real dangers relating to osmological expertise. I would like to concentrate on two rulings of the Supreme Court that seem to be the most important from the point of view of using osmological expertise in criminal cases.

It is, however, also worth mentioning that the issue of using osmologic expertise in criminal cases plays a very prominent role in Supreme Court and court of appeals judicature. It is an essential circumstance since some rulings, though often controversial among some experts and representatives of widely understood criminology, point to principles that having been accepted would facilitate working out such testing methods that would be acceptable for trial bodies. Among the most important rulings the following are worth mentioning: Supreme Court (II KKN 467/99 of 7^thMay 2002 <Lex no. 53895>, III KKN 333/98 of 5^th February 2001 <Lex no. 52013>, III KKN 465/2000 of 14^th January 2003 <Lex no.56843>, III KK 108/02 of 7^th July 2003 <Lex no. 81194>, IV KKN 105/97 of 3^rd July 2001, IV KKN 30/98 of 16^th January 2002 <Prokuratura i prawo 2003/5/8>, IV KKN 269/99 of 12^th January 2000 <Lex no. 51139>, V KKN 440/99 of 5^th November 1999 <OSKNW 1999/11-12/76>) and Court of Appeals (in Lublin of 4^th December 1996 II AKz 385/96 <OSA 1998/1/9>, In Warsaw of 19th January 2000 II AKa 436/99 <Wokanda 2001/3/49>, in Białystok of 29th May 2003 II AKa 90/03 <OSAB 2003/4/17>.

Verdict of Supreme Court of 5th November 1999, V KKN 440/99 (4)

This is an extremely important ruling from the point of view of practice of osmological expertise. It is notable that Supreme Court sees the necessity of performing this type of tests as a form of expert witness and not – what in practice happened many a time – as an experiment. Undoubtedly, to run comparative tests of scent traces properly one should possess specific knowledge, which not every police officer does. Should necessity of performing such an experimental test occurs, a police officer or a public prosecutor points an expert witness to participate in the action that is supposed to have only assisting role in comparison with a person in charge who has the decisive role as to organization and procedure. Taking into account the fact that already in 1999, i.e. at the time of issuing this verdict, a vast methodology of osmological tests existed and was in use, the thesis of the Supreme Court on the necessity of running osmological trials in the form of an opinion of an expert witness should be considered fully justifiable. As the Supreme Court emphasized in the cited verdict, comparative tests of scent traces should be run from methodological point of view in a faultless way. Performing tests in the form of an experiment without the requirement of the person in charge possessing specific knowledge would definitely fall short of this standard.

The ruling also contains many methodological guidelines for expert witnesses performing osmological tests (similarly to the ruling of the Supreme Court of 16^th January 2002, IV KKN 30.98 (5) ) that repeats the requirements specified in the ruling discussed here). Most of them deserve merit  from the point of view of practice, e.g. the need of protection against the Rosenthal effect, the need to perform comparative trials by two dogs possessing valid attestation (certificates) or properly chosen complementing scents. From the point of view of law, however, irrespective of rightness of opinions issued by the Supreme Court in this matter – the very fact may seem controversial of intense interference with a field that, as it could seem, lies already in the sphere of specific knowledge of an expert witness. According to opinion expressed In the doctrine, among others by prof. Tadeusz Tomaszewski – “with the right to pass an opinion there is an inextricable right to be independent in passing an opinion. (...) As a principle, the expert witness’s competence involves the choice of the right testing method,  testing technique and testing  material for these components of expertise lie in the sphere of specific knowledge”. (6) The real problem starts in a situation when the court while appointing an expert witness on osmology points in the decision that the expertise should be made according to the guidelines contained in this very decision, the expert witness, however, based on his specific knowledge, comes to a conclusion that taking these requirements into account will cause methodological errors to occur in his opinion. On the one hand, the expert witness is obviously with the decision of the court authorities, but on the other hand, he is bound with his professional ethics.  For this reason it would seem wise to leave the choice of testing method to the expert witnesses, bearing in mind that in every single case the court is obliged to freely judge this piece of evidence.

In the quoted ruling the Supreme Court did not, unfortunately, avoid methodological mistakes. It was a result, most probably, of basing the ruling to a large extent not directly on testing method, but possibly on merely one of the opinions expressed in the science of criminology (7).

Procedures connected with controlling the work of dogs have been extremely meticulously described. They are of extreme significance, because each indisposition of a dog or  false indication caused by, e.g. the attractiveness of a scent may result in passing a faulty opinion, and in turn, unjust judgement of a court authority. Unfortunately, performing control trials (called “blank line-ups” in judicature) proposed by the Supreme Court will not only make the dog work improperly, but it will also enhance the risk of impair its work. Both tests would be performed in the system of negative control. In the first, a line-up would not include the comparative material. This trial would not, thus, check the attractiveness of the comparative material. In the latter, instead of the evidence material the dog  would receive an odourless absorber, with the comparative material placed in the line-up.  In both these trials the dog should “check” all containers in a line-up and return to a handler without any indication. Dogs undergoing such tests, as proved by many years of research, were exposed to high level of pressure. The lack of possibility of discrimination and indication the scent distracts dogs very much. More than once also today, while performing other control trials, one points out that a negative trial (such a trial where the proper dog behaviour means not indicating any of the containers) should not be performed directly before the proper trials, but should be placed between trials in the system of positive control to leave the dog “in the winner position.” The success achieved by the dog in the form of positive indication motivates  it to further better work. It is extremely dangerous to give odourless absorbers for the dogs to skiff since dogs do not understand the need for searching for something in the line-up which does not exist. It is also difficult to agree with the thesis that tests of scent attractiveness should be performed only “alternatively”. If the comparative scent is attractive for the dog, it will keep returning to that very scent; it will indicate it despite it being inconsistent with the evidence material. This will cause the expert witness to draw an erroneous conclusion that the material secured at the scene of a crime and collected from the suspect will come from one person. For this reason it is emphasized in contemporary methodology that control trials be performed in order to check the dog’s disposition to work on a given day and establishing if there is any attractive scent in a line-up.

The thesis may cause some reservation that every dog should perform two proper trials, and enhancing the number of trials is not significant for further ones since "the dog, having recognized the scent trace once, will recognize it in subsequent tests”. Truly, the dog “memorizes” the scent sniffed before and multiplying trials will not improve the value of expertise. Unnecessary multiplying attempts with the same material may lead to a kind of weariness of dog’s sense of smell, which, in consequence, may lead to its indisposition to work further or even erroneous indications. However, as it is shown in methodology, the optimum is to run three, not two, trials. This amount does not cause the weariness  of dog’s sense of smell. It is not unremarkable that the line-up may be arranged in such a way so as to make the dog familiarized with every supplementing scent used in the trial, which is undoable with two trials.

Verdict of the Supreme Court of 14th January 2003, III KKN 465/2000, publ. Lex no. 56843, and Verdict of the Court of Appeals in Warsaw of 19th January 2000,  II AKa 436/99, publ. Wokanda  2001/3/49

These are examples of rulings demanding treating evidence from osmological expertise with extreme caution and sceptically viewing the diagnostic value of osmological trials. In the justification of the Supreme Court verdict it is emphasized that “the osmological evidence does not provide as much of a conviction as may follow from, e.g. dactyloscopy or DNA tests (…). Not discrediting the evidence one should subject  the evidence in concreto to meticulous and thorough analysis”. Similarly, in the justification of the verdict of the Court of Appeals in Warsaw it is stated that “in the present state of scientific progress and practical oeuvre, evidence from osmological trials should be treated with great caution (…) and in every single case should be subjected to meticulous and thorough analysis.” Undoubtedly, the court – within free assessment of evidence, may in any case consider the expert witness's opinion incredible or unconvincing, however, it is difficult to assess why should this piece of evidence be treated a priori as less valuable. The similarity between osmologic and genetic evidence is that both these tests have been used criminal trials for not a very long time, the tested material is not visible and in both these tests there is a real possibility of evidence contamination, both at the stage of it being secured and also during the expertise performed by the expert witness. The dangers are similar in every case. One cannot assume that genetic testing has the advantage of using highly specialized testing equipment, while the osmological “tool” is a dog, which is pointed out by the Court of Appeals in Warsaw. Of course, one should not exclude the possibility that osmological expertise is performed erroneously, however, this is the case with any other expertise, also dactyloscopic or genetic one. In any case, it is worth mentioning that every piece of evidence, not only osmological or biological – accordingly to guidelines of art. 7 Codex of Criminal Procedure (8) should be analyzed meticulously and thoroughly by the court, comments contained in the discussed ruling should be thus treated as universal.

It is essential while assessing osmological evidence to, as pointed out by the Supreme Court in the cited ruling, secure properly the evidence material at the scene and collect the material to compare in a proper way from the suspects. Undoubtedly, while assessing the evidence the court should also take these aspects into account. It is not possible to agree with the requirements laid out by the Supreme Court  concerning the necessity of collecting the material to compare from those body parts of the suspect that had direct contact with the object from which the evidential trace was secured (9). It is noteworthy that in many cases it is difficult, if not impossible, to specify whether the suspect in a given place was standing, sitting or, e.g. kneeling, touched the object with his left or right hand. Moreover, paradoxically, taking the comparative sample from places specially "rich" in odours, like the bottom area, groin or armpit may cause difficulties for a dog to recognize the smell to such an extent that running trials will be simply impossible. Some smell ingredients from these areas may become attractive or distracting for a dog, especially if it is going to smell them in the absorber. It is obvious that the basis of scentl identification for a dog is individual odour of a human being and not the odour people can smell with their sense of smell, i.e. cosmetics or sweat.

Another aspect is the secondary circumstance that taking comparative material from various body parts would make expert witness’s work more difficult, obliging them to take the supplementary material in a similar way. That is why, assuming that the individual odour is identical at every body part of a human being, the methodology points out to the need of collecting the comparative material off the hand and only in special cases form other body parts of the suspect. For the sake of explanation it is worth mentioning that from 1992 up till 16th June 1998 there were guidelines in operation, according to which it was acceptable to collect the comparative material from those body parts that probably left the trace evidence. However, on the day of issuing the ruling by the Supreme Court (14^th January 2003) and even at the time of the incident being the subject of the procedure (night of 18th/19th June 1999) these guidelines were replaced with the methodology of performing osmological trials. It means that the police officers' demeanour involving taking the comparative material from the hands of the witnesses which were criticised by this ruling, were in fact appropriate. Under no circumstances is the participation of an expert witness essential while collecting the comparative material. A trained police officer (e.g. criminology technician other than the one securing the evidence trace) is able to take valuable comparative material since no special knowledge of an expert witness is needed for this action.

While discussing chosen legal aspects one cannot omit the fact that the condition determining using any piece of evidence, not only the osmological one, during a court trial is its "common acceptance," making up, among other things, the so-called Daubert standard (10), and this is acceptance in a wide sense – not only by specialists performing osmological expertise on a regular basis, but also by judicature and representatives of serious scientific centres.

The judicature of the Polish courts of law is rather favourably inclined to osmology, though not always is this unanimous and the need of “high dose of caution” while assessing this particular kind of evidence is frequently emphasized. It is difficult to be surprised by this fact since Courts of law while assessing the evidence take into account their mutual configuration and not independent evaluation of single pieces of evidence. In respect to new methods in criminal science, and osmology is definitely one of these, cautious attitude towards it is highly justified.

Also university criminologists (11) and representatives of scientific institutes (12) are favourably inclined to the method, which cannot be identified with the fact that this acceptance is totally undiscriminating. There are discussions held in specialist periodicals that generally aim at explaining various doubts and bring the positions closer (13).

One should not ask about the acceptance of the discussed method among practitioners performing the trials. This acceptance is verified by research and experiments performed nowadays.

To sum up, one should emphasize that using the osmological trials that need neither be,  as any other criminological speciality, overestimated nor discredited, makes it possible to enhance the “evidence pallet” which can be used by a lawyer to reach the material truth.

 

                                                                                              Tomasz Bednarek (J.S.D.)

REFERENCES

1. Kuczys J., Milewski R.: Wykorzystanie psa służbowego w oględzinach śledczych, "Problemy Kryminalistyki" 1973, no. 103-104, pp. 341-346; also: Głogowski J., Kuczys J.: Użycie psów tropiących do identyfikacji śladów zapachowych człowieka, "Problemy Kryminalistyki" 1975, no. 113, pp. 61-67, also: Beuth A.: Przechowywanie zapachów, "Problemy Kryminalistyki" 1978, no. 133-134, pp. 380-384.
2. Regulation 19/92 of the Chief Commander of the Police of 12th October, 1992 on the use of police service dogs (unpublished).
3. Decision 9/96 of the Director of the Central Forensic Laboratory of the Police, 11th June, 1996, replacing Decision 4/94 on the manner and rules of granting and withdrawing the right to issuing independent statements (opinions) in the Central Forensic Laboratory of the Police and police voivodship forensic laboratories, "Biuletyn Informacyjny" CLK KGP no. 101, Warsaw 1996, p. 5.
4. Wyrok Sądu Najwyższego [Judgement of the Supreme Court] (1999). V KKN 440/99, of 5th November, OSNKW 1999/11-12/76.
5. Wyrok Sądu Najwyższego [Judgement of the Supreme Court] (2002). IV KKN 30/98, of 16th January, Prokuratura i Prawo 2003/5/8.
6. Tomaszewski T: „Dowód z opinii biegłego w procesie karnym”, II, Institute of Forensic Research, Cracow 2000, pp. 38 i 42.
7. Widacki J. (red.): „Kryminalistyka”, C.H. Beck, Warsaw 1999, pp. 270 – 273.
8. Codex of Criminal Procedure.
9.  Wyrok Sądu Najwyższego [Judgement of the Supreme Court] (2000). IV KKN 269/99, of 12^th January, Lex no. 511139.
10. Daubert v. Merrell Dow Pharmaceuticala Inc. (1993).
11. Kulicki M.: Kryminalistyka - wybrane problemy teorii i praktyki sądowo-śledczej. Wydawnictwo UMK Toruń 1994, also: Hanausek T.: Meandry osmologii, "Palestra" 1998, no. 481-482 (Jan.-Feb.), pp. 41-46, also: Widacki J.: Kryminalistyka, Wydawnictwo C.H.BECK Warsaw 1999, pp. 267-273, also: Hołyst B.: Kryminalistyka, Wydawnictwo PWN 2000 and Wójcikiewicz J.: Dowód naukowy w procesie sądowym, "Biblioteka Prawa Dowodowego" Cracow Institute of Forensic Research publication, Cracow 2000.

12.  Jezierski T.: Podstawy fizjologii węchu, uczenia się i etologii zwierząt, Zeszyty Metodyczne no. 4 - Badania osmologiczne, CFLP publication, Warsaw 1999.

13.  Widacki J.: Ani przypadek, ani pewność. O jednej z metod określania wartości diagnostycznej identyfikacji osmologicznej, "Problemy Kryminalistyki" 1999, no 225, p. 62 also: Sutowski G., Kozioł P., Jezierski T.: Między przypadkiem a koniecznością, czyli raz jeszcze o obiektywnej interpretacji wyników identyfikacji osmologicznej, "Problemy Kryminalistyki" 2000, no. 227, p. 61 also: Bednarek T.: Przypadek, pewność czy tylko mnożenie wątpliwości? O kreowaniu wizerunku badań osmologicznych raz jeszcze, "Problemy Kryminalistyki" 2000 no. 227, p. 64 and Widacki J.: Który wizerunek badań osmologicznych jest prawdziwy? "Problemy Kryminalistyki" 2000 no. 229, p. 44.

      Tekst wystąpienia wygłoszonego podczas międzynarodowej konferencji poświęconej „Standaryzacji metod badawczych w zakresie identyfikacji śladów zapachowych w celu poprawy współpracy organów ścigania w Unii Europejskiej” - 27-29 września 2006 r., Bydgoszcz.