YEARBOOK OF PHYSICAL ANTHROPOLOGY 33:39-57 (1990)

Physical Anthropology and the Law: Legal

Responsibilities of Forensic Anthropologists

ALISON GALLOWAY, WALTER H BIRKBY, TZIPI KAHANA, AND

LAURA FULGINITI
Department of Anthropology, Uiziuersity of Calzfornza,
Satita C i w . CA 95064 ( A G i , Human Identzfz.ccttLon Lubvtutory,
Arizona State Musrunz, Uniuetsity of Arizona, Tucson,
Arr--nwiY57’?7lWHR T K 1 F )

KEY WORDS Forensic anthropology, expert witness, scene investigation

ABSTRACT An understanding of the legal responsibilities which ac-

company involvement with forensic anthropology are essential prior to ac-
tive participation in this field. Correct procedures of scene investigation, the
requirements for handling and security of physical evidence, and the main-
tenance of a complete chain of custody are a n obligation of all forensic
scientists. The anthropologist as expert witness must also be cognizant of
the implications of the format and language of his or her reports, be com-
fortable with presenting and substantiating this material in court, and be
aware of the ramifications of maintaining a scientific viewpoint within the
legal sphere.

The field of forensic anthropology has undergone a period of massive growth

(Bass, 1979; Snow, 1982; Bass and Driscoll, 1983; Iqcan, 1988;Wienker and Rhine,
1989) spurred on by interest within the field and from publicity and promotion
from outside of anthropology. Increasingly, the medicolegal community is request-
ing that all types of human remains, including fresh, decomposed, burned, and
skeletonized remains, be analyzed by physical anthropologists. The decision to
honor such requests, however, must be made with a greater understanding of the
legal ramifications resulting from involvement in this activity. This paper outlines
~uii-ieaf thc legal issues that must be carefully considered and thoroughiy under-
stood by those anthropologists choosing to become involved in forensic cases.
As eloquently stated by Lucas (1989), the forensic scientist must contend with
four pressures, these being from law enforcement, the adversary system, science,
and the individual’s own sense of morality. The pressures must be balanced to form
a n overriding concept of ethical behavior a t all stages of professional involvement
in the forensic investigation.
Forensic anthropologists are a mixed community. The core practitioners are
those with extensive experience in skeletal analysis who have been recruited with
increasing frequency, not only by law enforcement and lawyers but also by medical
examiners. Many are members of various forensic science organizations and may
be certified specialists within their own areas. In recent years this core group has
been supplemented by those whose graduate training has included a specialization
in forensic anthropology. In addition, as awareness of this area of expertise in-
creases, physical anthropologists with only minimal or even no forensic training or
experience are occasionally requested by local agencies to provide assistance.
For the potential forensic anthropologist, a knowledge of the legal implications,
a n understanding of the expert’s responsibilities in each type of analysis, and a

0 1990 Wiley-Liss, Inc.

40 YEARBOOK OF PHYSICAL ANTHROPOLOGY [Vol 33, 1990

greater familiarity with the needs of the other forensic sciences is essential. With-
out this background, serious mistakes may be made that can jeopardize the repu-
tation of the anthropologist, the field as a whole, and, most importantly, the in-
vestigation of the case. The objective of this paper is to review the “forensic” aspect
of forensic anthropology. While the emphasis here is on criminal cases in the
United States, anthropologists are becoming increasingly involved in civil lita-
tions and in investigations throughout the world.
SCENE INVESTIGATION
Traditionally forensic anthropologists have been involved in the analysis of skel-
etonized human remains thought to be of modern origin. In recent years, this
limitation is rapidly being eroded. Caseloads in many facilities have shown a n
increasing involvement with decomposing, burned, and even fresh remains which
are kr,o\rzr, o r suspected of being human The physical anthropologist mav also
serve as a conduit through whom the forensic community gains access to other
services such as those provided by zooarchaeologists and archaeobotanists.
In this expanding role, the physical anthropologist is frequently requested to
assist in the recovery of remains which may have been scattered by either erosion,
carnivore, rodent, or human activity; buried; or charred or cremated. The inclusion
of the anthropologist in the scene investigation team ensures immediate input of
his or her expertise and the maximum possible recovery in the allotted time.
A request for involvement in scene investigation can come from a variety of
sources. In those areas with regional investigation departments, incorporation of
the anthropologist into the field recovery team may he routine whenever buried or
scattered remains are encountered. Where there is a local medical examiner or
coroner, he or she may request that the anthropologist be called to the scene or to
the examination room to assist with the investigation. The anthropologist’s in-
volvement may also be initially requested directly by local police and sheriff’s
departments without consultation with the coroner or medical examiner. In those
areas in which the reputation of the anthropologist has been well established,
especially from prior case work, the request is often almost automatic.
Since it is the responsibility of coroners or medical examiners to determine the
cause and manner of death, they are usually involved in death scene investigations
from the beginning (Fisher e t al., 1987). The coroner or medical examiner, upon
notification t h a t human remains have been found, must decide whether to visit the
scene prior to recovery, designate the anthropologist to complete this task, or direct
the local authorities to decide upon the method of recovery. In all cases, whether
the invitation is direct or indirect. the anthropologist must ensure that the proper
authority has been contacted before the scene is disturbed. Failure to do so can
result in difficulties in completing the death certificate and may jeopardize the
admissibility into court of physical evidence recovered from the scene.
Standard procedures need to be followed for all aspects of scene recovery, includ-
ing establishment of entry and exit routes to the scene, sequencing the recovery of
skeletal and other forms of evidence, and obtaining necessary equipment and per-
sonnel (Geberth, 1983; Fisher et al., 1987). The law enforcement officer assigned to
the case will, in most circumstances, make these decisions.
The correct techniques for scene investigation by forensic anthropologists have
been discussed at length in other publications (Morse et al., 1972, 1983, 1984;
Geberth, 1983; Skinner and Lazenby, 1983; Wolf, 1986; Fisher e t al., 1987;
Ubelaker, 1989). In addition, many physical anthropologists have had training in
archaeological field techniques and principles. A number of archaeologists are
becoming involved in scene investigation and recovery and their services can be
requested. Therefore, correct excavation, screening, and search patterns are not
discussed in this paper. Emphasis will, however, be placed on the legal responsi-
bilities of the immediate director of the recovery process which, in many cases, is
the physical anthropologist in conjunction with the chief investigative officer or
medical examinericoroner.
Galloway et a1 I ANTHROPOLOGY AND T H E LAW 41

Documentation of the recovery process

The anthropologist may be asked to be responsible for documenting the recovery
of the remains a t the scene. This necessitates that careful and sufficient recording
be made to facilitate the “reconstruction” of the scene a t some point in the future,
whether days or years have elapsed since investigation first began. Great attention
to detail is required not only to assist the investigators who will follow but also for
the prosecution attorneys who must build a n adequate case to present in court. In
addition to the prosecution, the defense must be able to understand fully how the
remains were found, their condition and exact location, and the relationship be-
tween these and other items recovered from the scene. Legal counsel must also be
able to track each piece of evidence from the location of its recovery to its intro-
duction into court. The inability to document any step of this process may place the
introduction of vital pieces of evidence in jeopardy.
The scene should be well photographed prior to anv recovery at,tempt, by the
anthropological team (Fisher e t al., 1987). This includes overall shots and close-up
photographs that should include a n indication of the case number, a scale, and
north arrow. Thirty-five millimeter color transparencies are the most commonly
used format although black and white photos are frequently taken. A neutral gray
color card is frequently included to ensure that the color represented in the pho-
tographic slide is close to natural. Increasingly video recordings are used to doc-
ument the entire recovery process. Photography, in either form, should continue as
each new piece of evidence is recovered.
In addition to photography, the scene should be mapped (Fisher et al., 1987).
Therefore the forensic anthropologist or archaeologist should be familiar with most
common methods of mapping, such a s triangulation techniques. The map, a s with
the photographs, should include a scale and north arrow and must be linked to
some permanent item of the surroundings which can be relocated in the future.
The map may be less formal if the law enforcement agency is also recording loca-
tions of the physical evidence simultaneously. In these cases, however, the num-
bering sequence and naming of items between the two or more sets of maps must
be coordinated.
Evidence recorded at the scene must be traceable throughout the investigation.
For this reason, all evidence recovered should be mapped, photographed, and the
exact location noted, along with the date and intitials of the individual responsible
for recovery (Fisher et al., 1987; Howard et al., 1988). Human remains, even
skeletonized material, are difficult to mark in the field, so paper bags or boxes can
be used and their outer portions labeled. The use of plastic bags generally should
be avoided since they may trap moisture and allow mildew and mold to develop,
further damaging the remains. The bag or box number, its contents and t,he origin
of the evidence in them should be recorded in the field notes. Prior to analysis in
the laboratory or morgue, each bag should be opened and the bag and its contents
photographed and recorded (Howard et al., 1988).

Preservation of evidence
While this paper is not concerned primarily with recovery techniques, a few
words must be devoted to the preservation of evidence which may not fall within
the general expertise of the forensic anthropologist. These include clothing, weap-
ons, hair or fibers, identifying papers, or other non-osseous material. Also, finger-
prints, footprints, and tire impressions may be present and need protection from
marring, trampling, or other disturbance by recovery personnel. Although most
anthropologists are not responsible for the analysis of these materials, such items
must be collected and recorded with the same care given to skeletal or other human
material (Fisher et al., 1987).
Bodies recovered in various states of decay frequently have a n accompanying
insect community which can provide valuable information concerning the interval
since death. Knowledge of the life cycles of indigenous insects along with published
42 YEARBOOK OF PHYSICAL ANTHROPOLOGY IVOl. 33, 1990

reports on the insect communities associated with cadavers may allow a n approx-
imation of this interval. However, the services of a forensic entomologist will
greatly refine the time determination and provide a n understanding of the pecu-
liarities in the local environment, feeding medium, or species behavior which may
distort the gross estimate (Keh, 1985; Smith, 1986). Therefore, all insect forms
should be referred to a professional forensic entomologist for analysis. Techniques
for the collection of preserved and live specimens and recording of the location of
the remains and extent of insect involvement are described elsewhere (Lord and
Burger, 1983; Haskell and Williams, 1989). Forensic entomologists often prefer to
collect their own specimens from the remains and the body recovery site since
much information resides beneath the soil surface or removed from the immediate
vicinity of the remains (N. Haskell and C. Olson, pers. comm.).
Small items may be extremely important for reconstructing the crime scene. The
recovery of bullets from within the body or from the surrounding area is often
critical to the successful prosecution of 2 case just 3s is the retrieval of anv ar&
factual material related to the individual. Therefore, the use of fine screkns is
mandated. A sensitive metal detector should be employed whenever the bullet or
other metallic debris may still be within the recovery area.
Descriptions of clothing (including sizes, if labels are legible) and jewelry, which
are found in conjunction with the remains, should be recorded a t the scene. Gen-
erally, this material is given into the custody of the chief investigating officer a t
the scene or retained by the medical examiner. The investigating officer also needs
to know the condition of any fasteners on clothing. Zippers, snaps, ties, and buttons
should be recorded as being present or missing, fastened or not. The association of
clothing with the remains should be recorded and photographed to document
whether the body was fully clothed a t the time it was left at the scene, if the
clothing was ripped or removed, and if any commonly worn items, such a s shoes or
undergarments, are not among the clothing recovered. The anthropologist, when
acting as a scene processor, delivers all recovered materials to the investigators in
a condition as close to the original as possible. If items must be altered in order to
facilitate retrieval of skeletal material, then clothing and other items should be
photographed prior to their removal or alteration. Cuts should be away from any
areas where there are fasteners or any indication of staining, tearing, or other
damage to the fabric.
Health and safety precautions
During the recovery process, protection for the physical anthropologist in the
handling of body tissue and fluids should be remembered (Klatt and Noguchi. 1989).
The viable lifespan of many infectious agents, such a s HIV and hepatitis, has not
been completely studied. Viability seems t o vary widely depending on whether the
virus is found with cellular material which is undergoing decomposition (Resnick
et al., 1986). Surgical or other protective gloves should be worn and other items of
protection should be considered such as goggles, disposable clothing, and face
masks. These precautions should also be followed in the laboratory. Vaccination for
hepatitis B is available and, as one professional forensic anthropologist recently
discovered, is a more comfortable alternative than the post-exposure therapy.
Disposal of the soft tissue must also meet both state and local health regulations.
In most jurisdictions this will require incineration or autoclaving and can usually
be arranged through the medical examiner’s office or through the university if the
anthropologist is academically employed. Since any item which has contact with
blood exudates or secretions may be potentially infective, these also should be
treated with caution.
Handling the news media
The news media frequently arrive at the scene seeking information and footage.
While mutual cooperation between the media and scene investigators is encour-
aged, local law enforcement should clear filming requests through their office
Galloway et al.1 ANTHROPOLOGY A N D THE LAW 43

(Geberth, 1983; Fisher et al., 1987). Frequently, a single investigative officer is

appointed to dispense all information at the scene.
As appealing as newspaper and television coverage may seem to be a t the time,
local and national reporting of the case requires extremely careful preparation
since i t is prone to both legal and public relations hazards. Care should be taken to
prevent the publishing or airing of news media films of the remains in order to
limit public knowledge of the details of the crime scene and as a courtesy toward
the family of the deceased. Evidence of trauma to a skeleton or other remains, if
widely circulated, may impede the initial investigation, may make i t difficult to
eventually select a jury, and may even prompt “copycat” activity. Similar care
should be taken in all subsequent interviews. Television news may also inadvert-
ently (or purposely) display unassociated skeletal material, such as anatomical
specimens or other unrelated cases housed in a n area in which the interview is
staged. If these are used in the course of the edited footage i t may appear a s if these
are the remains ofthe individuai in question. Such depictions may result in neg-
ative publicity for the news team but may also invoke public attacks against law
enforcement and the anthropologist a s well. Copies of newspaper stories and vid-
eotapes of television appearances should be maintained along with the records
concerning a case.
In short, media coverage is usually beyond the control of the anthropologist,
especially after the interview has been granted. In order to avoid conflicts, some
may prefer referring all reporters to the police or medical examiner spokesperson.
All information should be first cleared by the authorities in charge of the inves-
tigation.
PHYSICAL EVIDENCE: HANDLING AND STORAGE
Once the human remains are bagged and marked at the scene they are usually
transported to the morgue under the custody of the medical examiner or they can
be remanded by the medical examiner to the laboratory of the physical anthropol-
ogist. As a rule, items of evidence that are readily identifiable, i.e., so unique that
they could not be mistaken for another similar item and were not subject to phys-
ical change, can be admitted by the court as evidence on the basis of identification
by a witness on the stand. Skeletal material could be subject to a number offactors
such as cleaning, preservation, and sectioning for purposes of analysis, thus mak-
ing it subject to a much higher standard of authentication.
The most satisfactory proof of the identity of the skeletal material in question is
a demonstration of a “chain of custody” (also known a s a “chain of evidence”). The
links in the ”chain” consist of any and all individuals who had control of the item
ofevidenee between the tirile it w ized or obt,ained and the time it is offered into
evidence (Kuzmack, 1982). If i t is being consigned to the anthropologist, the trans-
fer of custody must be documented (Kogan, 1978). A “chain of custody” form should
include 1)the law enforcement or medical examiner case number, 2) the time and
date of each transfer, 3) the items under consideration, 4) the signature of the
person relinquishing the custody, initially the coroner, medical examiner, or the
law enforcement officer in charge of the scene, and 5) the signature of the person
receiving custody (e.g., the anthropologist). Without the ability to document each
custodial stage in the process from crime scene to final disposition (usually intern-
ment), evidence may be jeopardized and the anthropologist accused of mishandling
the remains. Obviously, the fewer people who handle the evidence the easier the
“chain of custody” is to prove (Kuzmack, 1982).
The integrity of physical evidence must be maintained a t all times. Therefore,
the storage of these items must be secure. If such facilities are not available a t the
laboratory, then analysis should be completed rapidly so that the items are kept in
the presence of the examiner a t all times. Following examination, the remains
should be returned to the medical examiner or law enforcement agency. Failure to
maintain secure conditions will provide grounds for the opposing attorney to ques-
tion its admissibility since items may have been altered or lost.
44 YEARBOOK OF PHYSICAL ANTHROPOLOGY lV01. 33, 1990

Prior to cleaning the remains, all items should be carefully checked for any
remaining trace evidence. This includes fibers and hairs which may have come
from the body, evidence of gunshots detected as radio-opaque particles on radio-
graphic films (Maples, 19861, or soot traces (Di Maio, 1985) on tissues or clothing.
Full radiographs of suspected injuries should be obtained before any cleaning is
undertaken. In one such instance, radiographs of charred remains, brought to the
anthropologists for help in establishing positive identification, showed extensive
radio-opaque traces consistent with a shotgun injury. Cutmarks and abrasions
may also contain evidence of paint or other inclusions which can link the victim to
a specific type of weapon (Andahl, 1978; Maples, 1986; Symes et al., 1988).
When analyses include procedures which will destroy or tamper with the re-
mains, the best evidence should be retained for future testing and, if a t all possible,
destructive tests be conducted on the second or third best samples. The Federal
Ir2ult.s uf CI iniiiial Procedure (1989) and the American Bar Association’s standards
for criminal discovery provide that, whenever a n expert intends to conduct tests
that may destroy the subject or otherwise dispose of relevant physical objects,
opposing counsel should be informed prior to the test (Moenssens e t al., 1986). The
balance of whether the information to be gained outweighs the costs of destroying
evidence is extremely critical in forensic cases. Thus the decision to thin-section
teeth for use in dental aging (Burns and Maples, 1976; Berg et al., 1984) or to
produce bone thin-sections for microscopic age analysis (Kerley, 1965; Ahlqvist
and Damsten, 1969; Singh and Gunberg, 1970; Thompson, 1979) must be made
with caution.
A record of all techniques used in the examination should be made including how
the estimation of age, sex race, and stature were determined. This documentation
allows the anthropologist to prepare the attorney in the types of work which have
been done and the limitations of their interpretations. It will also allow the an-
thropologist to prepare himself or herself prior to trial on references to outside
material which may be encountered during cross-examination. Photographs of the
evidence taken during initial examination and following any analysis or proce-
dure, such a s cleaning, which alters the appearance of the remains is critical.
Skeletal material is often held by the anthropologist in secure storage facilities
until the medical examiner has made final determination for disposition of the
remains. Those bones which bear vital evidence of specific peri-mortem trauma or
establish identity in a case in which positive identification is likely to be contested
may be retained after the remainder of the remains are returned to the family for
burial. This can only be done, however, with the express permission of the medical
examiner and with the knowledge of the investigators. The chain of cuslody should
then reflect which bones are returned and which have been retained.

PREPARATION OF THE REPORT

In most cases, a n oral report is given to the investigators and/or medical exam-
iner in the field or in the morgue (Brues, 1958). This should not be undertaken
prematurely. The oral report includes a n estimation of age, determination of sex
and race, and any peculiarities which may be of use in tracing identity. The age
and stature ranges are usually more generous than will be stated in the final
report. The oral report merely serves to provide a starting point from which the
investigator can begin the search through missing persons reports.
The oral report and the subsequent written version should only cover those areas
in which the anthropologist feels qualified and comfortable in providing a n opin-
ion. Although the law enforcement and legal personnel may push for conclusions
beyond the expertise of the anthropologist or beyond the limits of the data to
support these interpretations, ultimately, the anthropologist is the one who must
stand behind his or her report. The urge to push limits of training or ability in
order to assist one side or the other must be firmly resisted (Frankel, 1989). These
pressures may be particularly strong with those only recently involved in forensic
Galloway et al. I ANTHKOPOLOGY A N D T H E L A W 45

anthropology or when working with agencies who have little experience of how and
what a n anthropologist can do.
T h e written report
After analysis is complete, a full written report is prepared (Brues, 1958; Finne-
gan, 1980; Brooks and Haldeman, 1985). This is a legal document which, if the
anthropologist is the prosecution expert, will be made available to the defense
attorney in those cases where there is criminal prosecution. Therefore, it must
provide the documentation needed to support the points made and avoid specula-
tions based on minimal evidence. Experienced forensic anthropologists prefer to
write the report in the present tense in order to avoid petty cross-examination
related to issues of time.
The circumstances under which the anthropologist received or examined the
material must be noted in the report. If a scene investigation was conducted, then
she simes, location, and ail personnel Involved siiouili ’ue iisted. Il’exarriiriaiiori Look
place away from the scene, the time and location at which the analysis was con-
ducted along with the names and affiliations of all those in attendance must be
included. The name and affiliation of the person submitting the remains should be
noted or if material is sent by mail or other courier, then identifying labels and
other enclosures should be listed (Geberth, 1983).
Throughout the report, care must be taken that unverified information not be
included. If the anthropologist did not witness a n activity, or if stories and theories
concerning the case were related to him or her, then he or she cannot be said to
have direct knowledge. In order to maintain a n objective point of view, as much
outside information a s possible concerning the case should be excluded. For exam-
ple, “trophy skulls” are often assumed to be male (Ousley and Sledzik, 1990).
Skeletal material presented to the anthropologist may be accompanied by claims
that i t was recovered by a soldier from the Asian theater then stored away. Adopt-
ing the presumption that this is a “trophy skull” may result in bias toward as-
signing the sex of the skull a s “male” even though it may be anthroposcopically
and anthropometrically female. In extreme cases, this could result in concealment
of a n otherwise suspicious death. This error can be compounded by incorporation of
such “documented” material into collections upon which further research is based.
Therefore, the anthropologist must advise the personnel assisting with the case
that they are not to provide any information concerning the case or the suspected
identity of the victim, except at the anthropologist’s specific request.
The estimation of age and the determination of sex and race are stated in the
written report. It is essential that any tendency to be over-exact be curtailed. Age
ranges should be given rather than just a mean age estimate. For instance, a n age
designation of “probably between 28 and 36 years” would be appropriate while “32
years old” would not. Similarly, when possible, results should be stated with a n
indication of the accuracy such as the confidence intervals for height estimation
(Giles and Klepinger, 1988). There is disagreement among forensic anthropologists
over the amount of substantiation that must be provided for each of these points.
Many include the features and/or metric techniques that lead to the conclusions,
while others prefer to rely on their standing as experts in the field to support each
point, should i t be called into question. In the latter case, notes on each technique
should be included with the case records for later reference. Whatever the decision
on this point, it is key to remember that the use of specific techniques applied to
each case can lead to rigorous questioning on these methods during cross-exami-
nation a t trial. Listing these techniques in a written report may “provide ammu-
nition” to the opposing attorney. Since the anthropologist must be fully conversant
with all materials upon which he o r she makes the assessments, this should not
deter the anthropologist from including this information. Current, corrected, and
revised references should always be consulted.
Some attempts have been and are being made to produce a standard format for
anthropological reports (Finnegan, 1980; Brooks and Haldeman, 1985). However,
46 YEARBOOK OF PHYSICAL ANTHROPOLOGY [Val 33,1990

personal writing style, a s well a s the individual requirements of each case, makes
any “standard format” difficult. In general, the report should reflect the thorough-
ness of the analysis and the degree of certainty with which the anthropologist can
express his or her opinion. It is essential that these reports be usable to those who
are not conversant with osteological or anthropological terms and jargon. The
report must be able to stand alone without additional interpretation. Frequently
the report, without the author’s verbal testimony, is the sole contribution of the
anthropologist t o a case. For example, both sides in the case may stipulate to the
report and agree that the contents are essentially true and correct and do not merit
sworn testimony.
In some instances positive identification can be made through comparison of
postmortem radiographs of the victim and antemortem radiographic films of a n
individual suspected to be the decedent. The most frequently used method is with
dental radiographs although medical radiographs are also used (Froede et al.,
193811 Tf positive identifiration is requested w i n g either format. the anthropologist
may also choose, with permission of the investigative authorities, to consult a
qualified odontologist or radiologist. While many anthropologists are familiar with
and use comparative radiography, those who are not comfortable with these tech-
niques may be safer referring these cases to other authorities.
When comparisons between antemortem and post-mortem radiographs are
made, the number and type of submitted films should be listed in the report along
with the name of the person who provided them, the dentist or hospital name (if it
is included on the envelope, chart or other documentation), the reputed name of the
subject, and, if the films are dated, the date on which they were reportedly taken.
Since the anthropologist, in all but the most unusual cases, did not produce the
antemortem radiograph, the report should include a qualification stating that the
films are reputedly of the suspected victim or that they are labeled as being those
of the suspected victim. Similarly, dates should be reported as having been written
on the film or in the records rather than stating that the film was actually taken
on that specific date. It is wise to check all submitted films as often radiographs of
unrelated persons may, inadvertently, be included with those of the suspected
victim.
The expert witness is allowed to rely upon a certain amount of outside informa-
tion under the Federal Rules of Evidence (1989). Rule 803-8 provides a n exception
for the hearsay rule when dealing with public records and reports. As long as the
expert relies on “factual findings” reported by police officers or medical examiners,
she or he is free to use this information in the report. However, the exception to the
rule does not cover opinions, conclusions, and evaluations, leaving the line be-
tween these and “factual assertions” difficult to discern (Lilly. 1987).
Stating the accuracy of a dental or medical radiographic identification is a dif-
ficult problem. An estimation that there are over 2% billion different possibilities
in charting the human mouth has been made (Moenssens et al., 19861, making the
probability of finding two mouths with identical characteristics extremely small.
Some combinations are, however, more common (Friedman et al., 1989). Radio-
graphic identifications should be made using as many points of comparison as
possible. If the antemortem material submitted is limited or of poor quality, a
probable but not positive identification can be supported if no inconsistencies are
found which cannot be attributed to temporal differences.
Caution should be exercised when making probability statements on the report
or a t trial. If the quoted probability is not the product of valid and generally
accepted formulae, the witness might be asked on cross-examination what the
sources are of the numbers for each variable in the formula. If non-satisfactory
answers are provided, the credibility of the testimony can be greatly diminished
(Imwinkelreid, 1982). Since many of the techniques utilised by physical anthro-
pologists are based on subjective observations on anatomical traits, it is often
difficult to convey a sense of the accuracy of the technique. This is particularly true
when techniques have only been tested for statistical significance within limited
Galloway et a1 1 ANTHROPOLOGY A N D THE LAW 47

populations. In these cases i t is essential that the anthropologist acknowledge

these limitations and provide as much background information as possible to allow
the judge or jury to assess the weight given to the testimony.
If positive identification has been established, then the determinations on sex,
race, age, and stature may be considered irrelevant or even contradictory. This
information may be included a t the discretion of the anthropologist in light of the
above-mentioned caution regarding cross-examination. Such information could
prove useful when conducting research on forensic material, but i t is often better
not to include it in the forensic report and file. Separate files for research and
documentation purposes should be maintained.
Indications of trauma are frequently found on skeletal material. These should be
carefully noted with the available evidence to support ante-, peri-, or post-mortem
causes (Maples, 1986; Murphy et al., 1990). The defects should be listed with
causes with which they are consistent (e.g., “defect is consistent with gunshot
entrance wound”); however, determination ot “cause of death” (the Immediate
reason for the cessation of life) is the prerogative of the coroner or medical exam-
iner (Brues, 1958; Spitz and Fisher, 1980; Di Maio and Di Maio, 1989).
The establishment of manner of death is also the duty of the coroner or medical
examiner (Brues, 1958; Spitz and Fisher, 1980; Sauer, 1984; Maples, 1986; Di Maio
and Di Maio, 1989). This will fall within one of five categories-homicide, suicide,
accident, natural causes, or unknown. One should never confuse “cause” with
“manner of death.” These latter findings are based not only on the indications of
trauma or pathological change to the body, but also upon the circumstances sur-
rounding the death and information on events that preceded the event. This con-
clusion can change as additional information becomes available and may be rad-
ically different from that based solely on the examination of the remains. Cases
that initially appear to be homicides may prove to be suicides in which supporting
evidence such as weapons, letters, or notes were removed by concerned family or
friends. While the findings of the anthropologist may support this conclusion
(Sauer and Simson, 1984), it is not his or her responsibility to determine which will
appear on the death certificate. Under no circumstances is it the responsibility of
the anthropologist to sign the death certificate unless he or she is also a physician
or coroner as specified by law.
While discussions of possible scenarios may occur during scene investigation or
during laboratory analysis, these speculations should never appear in the written
report. Often these have little foundation other than hunch or lack of any contra-
dictory evidence which are easily dismissed during cross-examination, calling into
question the credibility of the expert witness.
Just as there are disagreements ever the amount of substantiation of technique-.
required in reports, there are also disagreements over the inclusion of a bibliog-
raphy. Extensive bibliographies are obviously cumbersome but a short list of key
references applicable to the particular case may be appropriate. The use of biblio-
graphic references is permitted under the Federal Rules of Evidence (1989) and the
Uniform Rules of Evidence (1989); however, the anthropologist should be com-
pletely familiar with all such references prior to court appearance.
The final reports are eventually made available to a number of people, including
the local law enforcement agency, the medical examiner or coroner, and the dis-
trict or county attorney. In many larger facilities, a single copy is sent to the
medical examiner or coroner who is responsible for dispersing copies along with
the summary report of the medical examinerlcoroner to the appropriate agencies.
In some states, state medical examiners must also be provided with final copies of
the reports. Other requests for reports should be cleared through the appropriate
authorities prior to release.
Payment for seruices
An invoice for services is usually submitted with or following the final report.
Fees should be agreed upon prior to involvement with a case. In some instances, a
48 YEARBOOK OF PHYSICAL A N r H R OPOLOG Y lV0l 33,1990

flat “fee per case” may be charged while, in others, payment is based on the type
of case handled or the amount of time expended on each case. The expert is entitled
to fees and should not be embarrassed to insist upon compensation for time and
expertise.
Unless fees are agreed upon prior to involvement of the anthropologist, there is
the possibility that trial participation may be mandated without compensation if
the anthropologist is privy to certain facts about the case (Byrd and Stults, 1976).
This is possible when the anthropologist is witness to the recovery or condition of
the remains or other pertinent events or items. These facts may be viewed as lay
testimony in that the anthropologist observed facts which do not require a n expert
conclusion of any type. This is distinct from expert testimony which involves a n
opinion based upon those facts and a knowledge about a specific subject matter
which is not commonly held by the general public.
If the anthropologist is employed by a university, museum, or other institution,
the appropriate financial offices of that facility should hc consulted prior to billing.
Many institutions require that such funds be incorporated into the general ac-
count, particularly if facilities or personnel are used in the processing or storage of
remains or for the writing of the report. Since institutions are pleased to find
another source of income, arrangements are often possible to funnel all or part of
these funds into special accounts for the use of the anthropologist for such expenses
as equipment purchases, travel to conferences, or for research purposes. If the
billing is sent by the anthropologist, as a private consultant, then leave time or
vaction time must frequently be used for all case-related work.
PREPARATION FOR COURT TESTIMONY
Once a decision has been made to bring a case to court, expert witnesses are
notified by subpoena a s to the approximate time of their appearances. The anthro-
pologist should insist upon a pretrial conference during which the details of the
final report can be reviewed and possible lines of questioning discussed (Philipps,
1977; Kogan, 1978). This prepares the anthropologist for the direct examination by
becoming familiar with the questioning style o f the attorney, the order of the
questions, and those areas where explanation needs special attention or could be
assisted by reference to illustrations or other aids. It also helps the lawyer in
preparing questions which best emphasize the point he or she wishes to address
through this testimony. During this time the lawyer may also wish to work
through a suitable language style so that the jury will not be overwhelmed by
complex, seemingly unintelligible jargon. For instance, describing the femur a s the
“thigh bone” or vertebrae as “bones of the spine” assists the jury in understanding
the tcstimony,
Many forensic anthropologists find that the pretrial conference is a n excellent
opportunity to discuss “what is forensic anthropology.” Since this question fre-
quently reappears a t the beginning of testimony during the actual courtroom ap-
pearance, preparation of a concise and understandable description of the necessary
skills, capabilities, goals, and limitations of the field is valuable.
Under both federal law and most state laws, the opposing attorneys usually have
the right to the reports generated by the expert witness (Giannelli, 1989). The
rules of disclosure and discovery vary from jurisdiction to jurisdiction. A majority
o f states have adopted statutes and court rules that specifically allow some pretrial
discovery of expert information for both prosecution and defense (Moenssens et al.,
1986). Generally, a criminal defendant has a due process right which requires the
prosecutor to disclose certain evidence. This is called exculpatory information since
it is material which must be disclosed (Moenssens e t al., 1986). When the expert
employed by the prosecution produces information that may benefit the defense
case, i t must be also provided to the defense. If the expert suspects that this has not
been done, he or she may feel obliged to contact the court to ensure that disclosure
has occurred.
Pretrial discovery in the federal courts is guided by the Federal Rules of Crim-
Galloway et a1 I ANTHROPOLOGY A N D THE LAW 49

inal Procedure (Rule 16) (1989). Many states have similar discovery rules. The
expert should be aware of the specific statutes of disclosure and discovery pertinent
to the jurisdiction trying the case. In general, the “reports of examinations and
tests” provision of Rule 16, requires the government to permit the defendant to
inspect and copy or photograph any results or reports of scientific tests or experi-
ments which are within the control of the government. This could be accomplished
either upon defendant’s request or by the exercise of “due diligence” on the part of
the government. The prosecutor’s office must be advised of all evidence in a case
and any change in the status of that evidence. Additionally, there is a “continuous
duty to disclose” information, reports, and scientific tests which are received by the
prosecutor after the initial disclosure (Kuzmack, 1982). Rules of discovery and
disclosure ensure not only that the opposition has the chance to call rebuttal
witnesses, but that, in those issues in which there is no dispute, the court can save
time by both sides stipulating to the facts.
The extent of the discovery rules depends upon whether the information is being
sought by the defense or the prosecution and the jurisdiction of the case proceed-
ings. If the expert is employed by the prosecution, then his or her name will, in
most jurisdictions, be given to the defense council. Generally this is accompanied
by a summary of the testimony which this person is to provide. Often a copy of their
written report is included. In most jurisdictions, the defense can also gain access to
any and all notes which the expert uses to prepare his or her testimony (Philipps,
1977).
In some jurisdictions the defendant has the right to a pretrial discovery deposi-
tion and experts should expect to be contacted by opposing counsel. A less formal
pretrial interview may also be requested. The expert should not express reluctance
to speak with the opposing attorneys (Philipps, 1977). To decline these opportuni-
ties suggests that one is uncertain of one’s analyses, uncomfortable with cross-
examination, and that one’s loyalties are solely allied with one side. Prior contact
prepares not only the attorney but also the witness for possible lines of approach,
questions regarding specific techniques, and authorities and texts upon which the
opposing attorney may rely. For example, a n attorney may inquire if certain
defects, which the anthropologist has stated are consistent with sharp force trauma
(“cutmarks”), could have been made by natural causes such a s root action. This
allows the anthropologist time, prior to court appearance, to frame a coherent
explanation as to how these two types of defect can be differentiated. A request
that the prosecution lawyers also be present during the interview is appropriate.
Any attempt to exaggerate precision or underemphasize the limitations of tech-
niques shouid be strongly resisted in these conferences. The expert’s primary duty
is to be objective and impartiai and not t o “support his or her employer.”
The application of discovery rules that apply to the defense are geared to protect
the Fifth Amendment rights of the defendant (Simon, 1977). Therefore only a
minimum amount of information may be provided to the prosecution initially.
There are, however, means by which the prosecution can obtain a greater portion
of the data to be presented (Simon, 1977). One of these is through interrogatories:
series of questions on specific issues already introduced by the initial information
provided to the prosecution regarding the testimony by the defense’s expert. Often
reciprocity laws will apply. Under these guidelines, the prosecution can obtain the
full report of a n expert if the defense has already requested and received the full
report of the prosecution’s parallel expert.
Sometimes at the request of indigent litigants or a t the discretion of the court, a n
expert could be appointed by the court. These court-appointed experts usually
report directly to the court and are subject to be called to testify by either the court
or the adversaries (Moenssens et al., 1986). The type of expert most commonly
appointed are psychiatrists, but other types of expertise including anthropology
could be requested (Giannelli, 1989). The court that has appointed a n expert will
determine reasonable “compensation” which is in civil cases paid by litigants and
in criminal cases paid from public funds.
50 YEARBOOK OF PHYSICAL ANTHROPOLOGY IVol. 33, 1990

There are also provisions which govern the use of experts who will not be ex-
pected to testify. Experts may be engaged to assess the reports of the opposition’s
experts or assist in compiling questions to be used in cross-examination. The rules
of discovery and disclosure do not apply to these experts in the same way unless
they are later called to court as witnesses. In most cases the communication be-
tween the non-testifying expert and the attorney is considered privileged and is
therefore protected (Hilton, 1972).
In some instances the defense will contact a n expert in hopes that his or her
analysis will benefit the defendant’s case. If this proves not to be the case, then the
information provided by the defendant to the expert is protected under the Fifth
Amendment (Hilton, 1972; Simon, 1977). An example of such a situation is when
the anthropologist is requested to make a photographic comparison for similarities
in morphological features. In this instance the defense client is supplying photo-
graphs of himself or herself to be compared to those taken during a holdup, in a
pornographic situation, or other criminal or compromising circumstances. The
Fifth Amendment protects the client from having opinions that they have solicited
being used against them. Without such protection, defendants would be extremely
reluctant to request the opinions of any expert, effectively denying them access to
all possible avenues of defense. In the long term, justice would be seriously im-
paired.
THE COURT APPEARANCE
Expert testimony is admissible to court if it is outside of common knowledge or
it will be helpful to the “trier of fact,” whether the trier is the judge or jury (Hilton,
1972; Haddad, 1981a; Specter, 1981; Mueller and Kirkpatrick, 1988; Giannelli,
1989). These basic criteria have been upheld in the Federal Rules of Evidence with
Rule 702 (Haddad, 1981b). The expert witness has the responsibility to present his
or her findings in a n impartial, clear, concise, and complete fashion, minimizing
ambiguity and misinterpretation in language understandable to the lay jury
(Bono, 1981; Peterson and Murdock, 1989).
The subpoena will be sent to the expert witness listing the date of the trial at
which the expert is scheduled to appear. Since this depends on the smooth work-
ings of the trial situation, i t is wise to telephone beforehand to see if there are any
changes in the schedule. It is not uncommon to experience several delays and the
expert may even arrive at the court to find that, due to last minute negotiations,
his or her testimony is not needed. For out-of-town travel, bringing a n overnight
bag is often useful.
Experts are, in most cases, expected to wait outside the courtroom until they are
summoned for testimony. Discussions about the case with other witnesses are not
permitted. Because courthouse lobbies are public areas, any discussion directly
concerning the case, even with students or colleagues, may be overheard by jurors
or other witnesses. This can, in extreme circumstances, result in a mistrial and the
entire process must begin again with a new jury.
Once called to the witness stand the expert witness, like all witnesses, must take
a n oath. He or she must have some information of bearing to the case and must be
able to remember that information and be able to communicate it effectively to the
judge and jury.
The qualifications of the expert witness usually begin with a list of the training,
current and past employment, experience in the field, membership in professional
societies, and authorship in areas pertinent to the questions a t hand. The qualifi-
cation process may be minimized if the opposing attorney agrees to accept these
qualifications. This is often done in a n attempt to avoid a n impressive listing of
credentials to the jury (Kogan, 1978; Haddad, 1981b).
The expert can be impeached (have weight of testimony diminished) through
cross-examination that highlights any inaccuracy or bias in testimony, lack of
training or experience, or lack of familiarity with the current literature in the field
(Rothblatt, 1981; Mauet, 1988). An expert who continually works only with the
Galloway et al.1 ANTHROPOLOGY A N D THE LAW 51

defense or the prosecution is also vulnerable and may be portrayed as a “hired

gun.” This apparent bias can be demonstrated effectively by competent cross-ex-
aminers (Kuzmack, 1982).
The bulk of the expert’s testimony will be elicited through direct examination.
At this time the basis upon which the opinion is founded may be presented and the
actual opinions stated. The witness is expected to answer questions fully but does
not have the right to answer questions that have not been asked (Giannelli, 1989).
Care must be taken to avoid overstating certainty about the interpretation of the
analysis. This may be difficult where pressure is exerted to avoid any sentiments
of doubt in the minds of the judge or jury. Embellishing one’s testimony with
adverbs such as “exactly,” “perfect,” “indistinguishable,” etc. makes the opinion
vulnerable to cross-examination and undermines the expert’s credibility (Im-
winkelreid, 1982).
In cases where inappropriate opinions are sought, it is better to answer that such
a n interpretation is not ”within my area u l expertise.” Liiiiitatioiis ill the aiialysis
or interpretation should be acknowledged openly (Peterson and Murdock, 1989).
Finally, one should distinguish those interpretations that are based on experimen-
tation from those based on experience or judgment, with the former carrying
greater weight (Lucas, 1989).
Until the introduction of the Federal Rules of Evidence, hypothetical questions
were frequently used to obtain this opinion (Zaremski and Goldstein, 1981; Muel-
ler and Kirkpatrick, 1988). Federal Rule 705, however, eliminates the mandatory
use of the hypothetical which required that all assumptions be explicitly stated.
Items introduced during direct examination are subject to cross-examination by
the opposing attorney. The expert may be asked a question to which he or she does
not know the answer, does not fully understand, or cannot answer without quali-
fication. Answers should be honest and concise. If a n authoritative text is intro-
duced into evidence with which the expert does not agree then this should be
stated. A more complete explanation of these items can be solicited during the
re-direct examination. The attorney who has engaged a n expert should be aware of
indications that the witness wishes to expound upon a n answer for which the
initial response was limited or cut short. The judge, also, may ask for a more
complete answer than permitted under examination by the attorney.
While qualification of the expert permits his or her testimony t o be admitted into
evidence, it does not determine the value or weight of that evidence in the delib-
erations of the judge or jury (Haddad, 1981a). Juries frequently rely on the manner
in which the evidence is presented, the demeanor of the witness, the response to
cross-examination, and the credibility of witnesses presented by the opposing side
(Rut,hblatt, 1981: Moenssens et al.. 1986: Mauet, 1988).Dress should be in keeping
with t h a t normally seen in the courtroom. The expert should attempt to remain
calm, answer clearly, and, if a point is being challenged, to permit the attorneys to
complete their arguments and the judge to provide a ruling prior to answering.
These arguments should not be taken personally but as discussions over points of
law which may have little bearing on the validity of the scientific techniques the
anthropologist chose to use or the conclusions he or she reached.
Notes used to prompt or remind oneself of the case can be brought into court
(Kogan, 1978). These are, however, then subject to being claimed a s evidence and
included into the record (Philipps, 1977; Kogan, 1978). Since this is the case, only
duplicate copies of all reports or notes should be brought into the courtroom.
In order to familiarize the jury with the details of the skeletal analysis, draw-
ings, photographs, or anatomical models may be introduced. These are typically
approved by the opposing counsel prior to being introduced. If not, then the judge
will rule over the admissibility of these items of demonstrative evidence. The rules
governing admissibility depend on the usefulness of the item toward a more com-
plete understanding by the jury of the testimony being presented (Avenbach,
1970). While graphic or gruesome depictions are often disallowed, this is usually
done so because their value to the jury does not outweigh their possible inflam-
52 YEARBOOK OF PHYSICAL ANTHROPOLOGY [Vol 33, 1990

matory qualities (Cady, 1967). If the depiction is crucial to the case then the
less-than-agreeable image is usually not legitimate grounds for exclusion. If i t is
not crucial, then opposing attorneys are usually successful in banning photographs
of such scenes as decaying bodies or indications of trauma on the body or those
photographs which show large amounts of body fluids. In all cases, arguments are
made by the attorneys representing each side and the presiding judge will rule.
The basis for such arguments should have been arranged during the pretrial con-
ference.
In some cases, actual skeletal material from the victim of a crime under prose-
cution will be introduced. This may be necessary if matches are to be demonstrated
between specific weapons or weapon types and the resultant trauma. For example,
it may be particularly helpful to show that a particular tool type, which is alleged
to have induced blunt-force trauma, may have characteristics that allow matching
with the resultant depressed fractures on the cranium.
Fees are often discussed during cross-examination (Byrd and Stults, 1976;
Tanay, 1976). A line of attack often used against expert witnesses is whether or not
they are paid for the appearance in court. Since, hopefully, some compensation is
involved for the inconvenience of time and travel if not also for the expertise, then
the expert must answer that yes, he or she is being paid. No expert can, ethically,
accept payment contingent upon the successful outcome of the trial. The expert
may add, if permitted, that the expert provides a n opinion based on the facts a s
known to him or her and that the source of the fee does not affect the answer. If the
answer is limited to a yes or no, then the full answer should be permitted during
the re-direct examination from the lawyer employing the expert.
Although analytically hearsay, techniques that are widely used, and with pub-
lications and citations in authoritative texts, have long been admitted into court
(Dick, 1980; Pattendon, 1982). This is recognized under Federal Rule of Evidence
803. Depending on the jurisdiction, standard reference treatises can be used in the
following situations: 1)only if the expert has used them in his or her analysis, 2)
if the expert recognizes them as authoritative works, or 3) if other experts in the
field consider them to be authoritative (Giannelli, 1989). The impeachment pro-
cess, utilizing such texts, usually involves presentation of passages which contra-
dict the testimony either in whole or in part.
As a n expert witness, the anthropologist should be able to lay a sound theoretical
foundation for his or her testimony. This will prove helpful on direct examination
as well a s on cross-examination. Opposing counsel may be well prepared to attack
these foundations, especially as they may engage or consult with their own experts
in preparation for trial. even if they do not intend to call any ofthese experts to the
witness stand on their behalf. Expertise can be seriously challenged if the witness
is not knowledgeable about recognized books or journals in the field (Kuzmack,
1982). Many lawyers familiarize themselves with scientific research references
prior to the trial. Reference systems such a s Index Medicus or Medline are the most
common sources for the latest publications in medicine and related disciplines
(Moenssens e t al., 1986). Opposing counsel will often bring up recognized textbooks
in the field on cross-examination and confront the witness with passages in the
text that contradict the witnesses’ statement about a theory. Even in cases where
the text is out of date the anthropologist should be familiar with these “learned
treatises” in order to be able to reconcile his or her testimony with the quote being
used. Although probably unethical, several trial practice texts mention attempting
to trick the witness into saying that he or she is familiar with a nonexistent
treatise. A knowledgeable and honest expert should not be afraid of responding
that he or she has never heard of that particular reference (Imwinkelreid, 1982).
In forensic anthropology, techniques for age and stature estimation or sex and
race determination (Krogman and Iscan, 1986; Bass, 1987) are commonly pre-
sented in court. Newer techniques have a more difficult route to acceptance. Under
the Frye rules, the “general acceptance” of a technique by the relevant scientific
community is the criterion by which admissibility is judged. This generally pre-
Galloway et al.1 ANTHROPOLOGY AND THE LAW 53

supposes that information about the techniques is widely known, usually available
in a published form, and has been tested by researchers other than the original
developer. There is also an expectation that it is being used by other experts a t
other facilities. The aim of the Frye standard is to provide for more uniform deci-
sions and prevent repeated debates over admissibility of established techniques.
With the Federal Rules of Evidence, this has changed to some extent, depending
upon which jurisidiction is involved (Mueller and Kirkpatrick, 1988). Some states
prefer to follow the Frye precedents, while others are patterned after the Federal
Rules of Evidence. There is a movement toward a consideration of the worth of
scientific evidence in a manner similar to other forms of evidence (Imwinkelreid,
1984; Giannelli, 1989). In this, the probative value (the ability to contribute to the
proving of a n argument) is compared to the dangers i t may bring with regards to
undue time expenditure, misleading or prejudicing the jury, or allowing insuffi-
cient time for the opposition to prepare. The major difference with this type of
approach is that the supporting testimony of even a singie other expert may be
sufficient to allow admission of the testimony based on a new technique.
These rules do not necessarily align with the scientific approach of hypothesis
testing accepted by the anthropological community (Black, 1988). Well-established
techniques may not be admissible if their use is not widespread. In contrast, other
techniques, such as facial reconstruction (Rhine, 1984) or footprint analysis (Rob-
bins, 1985), may be admitted while doubts within the scientific community are
held a s to the merits of these techniques (Heglar, 1987; Neufeld and Colman,
1990). A similar situation is now being seen with the controversy over DNA “fin-
gerprinting” in criminal cases.
PROFESSIONAL RESPONSIBILITIES IN THE FIELD
If the anthropologist wishes to practice in forensic investigations, membership in
one of the professional organizations, such as the International Forensic Science
Society or the American Academy of Forensic Sciences, should be considered. The
latter has a growing section for physical anthropologists that was established in
1972 (Snow, 1982; Wienker and Rhine, 1989).These organizations provide a means
of maintaining contact with new techniques in the field, addressing problems with
the older techniques, and fostering interactions with the other forensic sciences. If
one is unwilling or unable to remain abreast of the current literature, then any
standing as a n expert in the field is jeopardized.
The American Board of Forensic Anthropology, organized in 1977 under the
auspices of the Forensic Sciences Foundation, also provides for the testing and
board certification of forensic anthropologists. Certification is available to individ-
iials with 3 years experience in human identification a the cornpietion of their
doctorate in addition to the successful completion of a written and a practical
examination. Successful fulfillment of these requirements provides diplomate sta-
tus which assists in the qualification of the expert witness (Haddad, 1981b).
While certification is not mandatory prior to participating in forensic investi-
gations or in testifying as a n expert, it does strengthen the credibility of the
anthropologist as a witness. This may be helpful if the opposing counsel also has
engaged the services of a n anthropologist. The Board also serves as a referral
service for listings of available experts and as a safeguard to ensure that legal and
ethical professional standards are maintained.
Lectures on forensic anthropology
Promotion of forensic anthropology should be encouraged both with law enforce-
ment agencies and the local legal community. This may take the form of informa-
tive lectures on what the forensic anthropologist can provide, workshops and short
courses on osteology, excavation and search techniques and data collection, and
tours of facilities involved in forensic anthropological research.
Public and professional presentations that include information or photographs of
actual cases should be undertaken most carefully. Non-adjudicated cases, in
54 YEAKBOOK OF PHYSICAL ANTHROPOLOGY IVOl. 33, 1990

general, are not used without express permission of the investigating agency. This
helps preserve the ability of counsel to locate a n unbiased jury for trial and main-
tains the integrity of the expert’s testimony. As with news interviews, public
lectures t h a t do not follow the due precautions and include colorful stories as to the
circumstances of death could easily be used by opposing counsel to taint the rep-
utation of the anthropologist in a subsequent court appearance. Even introductory
lectures broadly covering forensic anthropology may be attended by opposing at-
torneys a s part of their pretrial preparations.
Aspects of specific cases may be presented if pertinent to the lecture. Specific
details about a n actual case, however, including the case number, should be
avoided. References to the victim’s identity or detailed photographs of the trauma
suffered, especially if soft tissue is present, are best eliminated from lay presen-
tations. These practices will hopefully protect the feelings of the deceased’s family
or friends who may be present in the audience or be on a tour of the anthropology
facilities. In one instance, a n anthropology department custodian recognized, 2s ;?
close friend, the decedent whose photograph was being used in the physical an-
thropology laboratory to demonstrate the accuracy of skull-antemortem photo su-
perimposition.

ETHICAL CONCERNS
Forensic anthropology, along with all the forensic sciences, is subject to a code of
ethics that is designed to maintain a high level of personal integrity and moral
standards (AAFS, 1990).Although the anthropologist adheres to a set of standards
in the pursuit of science, in addition he or she will be required to have some
knowledge of the applicable legal standards (Reid, 1980). As the field expands,
both in the number of participants and the range of duties, it is likely t h a t ethical
conflicts will increase as new choices and dilemmas are faced.
The anthropologist is consulted by either the prosecution or the defense in a
criminal case (plaintiff or defense in a civil suit) because his or her opinion is
thought to support that particular side of the case. The expert witness is expected
to provide unbiased testimony regardless of which side has requested his or her
services. Expert witnesses are not expected to take, nor should take upon them-
selves, the role of arguing for one side in opposition to the other. They are acting,
in reality, a s amicus curiae (friend of the court) regardless of who is paying their
fee. All experts who are called forward to provide testimony must do so based upon
the facts alone and in full light of the limitations of the analytical techniques that
they employ. I t is the role and duty of the attorneys to be partial, but not that of
the expert.
The avoidance of partiality is the reason why the anthropologist should be open
to testifying for the prosecution or for the defense. Consistently appearing as a
witness for only one side, engenders a reputation a s a “hired gun” (Kuzmack,
1982). Similarly, close affiliation with law enforcement agencies, such a s reserve
officer or special agent status, may be negatively interpreted and is usually dis-
couraged (Peterson, 1988).
Occasionally experts will disagree on the interpretation of the facts. The objec-
tivity of the expert witness can be tested when one anthropologist is called upon to
render a n opinion on the work of another. This difficult situation incorporates
uneasiness brought about by respect for one’s colleagues, personal feelings con-
cerning the individual whose work is being evaluated, and reluctance to draw
attention to limitations in the ability of our analytical techniques to discriminate
or identify. The process, however, is a critical component of the legal system in the
United States. Practitioners, therefore, should not be reluctant to participate in
this process as i t serves to maintain high standards among the forensic anthropo-
logical community.
Acquisition, utilization, and retention of skeletal material for research purposes
is another area of ethical concern for forensic anthropologists. This is becoming
Galloway e t al.1 ANTHROPOLOGY AND THE LAW 55

increasingly critical as reburial of newly excavated or even pre-existing prehistoric

skeletal collections is being mandated in many jurisdictions. Supplies of anatom-
ical specimens are becoming restricted and there is a shortage of adequate funds
for their purchase. Modern skeletal collections also are essential for re-evaluation
of formulae derived on collections, such as the Terry Anatomical Collection and the
Hamann-Todd Collection, which date to the early part of this century. Changes in
stature and cranial shape have been documented even within the relatively short
time since these collections were made (Jantz and Moore-Jansen, 1988; Moore-
Jansen, 1989).
Human forensic material may appear to provide a n excellent source of research
and teaching material. However, ethical and legal considerations must be met
before any such material can be retained. Once the identity of the deceased is
known, the disposition of the remains rests almost entirely with the family and yet
must meet the legal regulations relevant to the case in question. If the desire is to
d o n a k the body Y o science,” then documentation of this should be made in accor-
dance with the Uniform Anatomical Gift Act (1968, rev 1987). Retention of skel-
etons or portions of the body without authorization and approval is both unethical
and illegal.
One compromise between the need for information on recent populations and the
legal restrictions on obtaining skeletal material has been the establishment of
various computer data banks, such as the Forensic Data Bank a t the University of
Tennessee, Knoxville (Jantz and Moore-Jansen, 1988). These computerized collec-
tions of cranial and postcranial measurements on forensic cases throughout the
world have already allowed revision of the discriminant function analyses for race
and sex. The effectiveness of this process depends upon the cooperation of all
practicing forensic anthropologists in recording and submitting information. These
collections provide forensic anthropologists with considerable amounts of data for
continuing research in physical anthroplogy.
SUMMARY
Individuals wishing to engage in forensic anthropology should be cognizant of
the unique nature of the field which requires specialized training and a n aware-
ness of their responsibility to the victim, the family, law enforcement agencies, the
legal community, and society. Applying scientific knowledge of physical anthro-
pology to a forensic question is merely one aspect of the discipline. The legal
aspects are equally important. The incorporation of the anthropologist’s results
into evidence depends on adherence to the rules governing recovery, transfer, and
storage of physical evidence. In addition, court appearance by ant.hropologists as
expert witnesses must meet carefully mandated procedures. The ctiiization of
techniques of analysis is governed by rules established by the legal system rather
than those more commonly accepted by the scientific and academic communities.
In forensic anthropology, the anthroplogist is called upon to move between these
two spheres.
ACKNOWLEDGMENTS
The authors would like to thank Mr. Thomas Mauet, University of Arizona Law
School for his careful review of this paper. In the preparation of this article we are
also indebted to contributions by Dr. Diane France, Colorado State University, Dr.
Thomas Henry and Dr. Bruce Parks, Pima County Office of the Medical Examiner,
and Mr. Larry Dessems, University of Tennessee Law School. The assistance of Mr.
Walter Allen and BITNET in the computer coordination of the input of authors was
essential. Finally, we are most grateful to the reviewers and Mr. Charles Miksicek,
and Dr. Emoke Szathmary for their thoughtful comments and suggestions.
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