Visibilities, invisibilities and twilight zones at the crime scene in Portugal

Abstract

The Police are the first element of a chain of custody culminating in the court. The documents they produce mediate the understandings between the crime scene and the court. Based on the formal rules, the police give visibility to the narrative and assign legitimacy and credibility to their performance. However, the decision to turn certain aspects of the narrative visible, leaving others in a twilight zone may have repercussions in the production of a verdict. Based in a qualitative analysis of three Portuguese judicial proceedings in this paper I explore how the narrative constructed by the police, based on what they see and what is unseen, travels between subepistemic cultures. Looking at the visibilities, invisibilities and twilight zones, I will try to understand how police forces at the crime scene in Portugal construct their narratives through the use of biological traces and how these narratives are part of the construction of the evidence. I argue that in criminal investigations in Portugal, the production of a narrative with legal meaning in court can be conditioned by the co-existence of the epistemic subcultures of police work (different police forces at the crime scene) that have different knowledge, practices, understandings and ways of “seeing” the forensic evidence. The degree of technological enthusiasm that guides the performance of different police forces at the crime scene is reflected in the way they “see” the scene and in the sociocultural understandings that they produce. This technological enthusiasm and what I call here “selective professional vision” are mobilized at the crime scene and can impact the robustness and efficiency of the evidence presented in court.

Keywords:

• sub-epistemic cultures
• crime scene
• practices
• selective professional vision
• technological enthusiasm

1. Introduction

Social studies of science and forensic genetics have focused on the use of DNA technology in the criminal justice system (Jasanoff 2006; Lynch et al. 2008; Kruse 2012, 2016) in recent decades and how it has challenged the epistemic status of traditionally used evidence. The meaning attributed to the evidence during the trial is based on traces collected at the crime scene and depends on the pretrial investigation done by the police (Jasanoff 2006; Kruse 2012; Wyatt 2014a). The “practices of interpreting and assembling evidence” (Kruse 2012, 300) are located at the crime scene along with the moment of selection, recording and storage of the forensic artifacts that are crucial in the trajectory of the traces (Machado and Costa 2013; Costa 2014; Costa 2015) and in the chain of custody¹ of the evidence “by heterogeneous practices for certifying identity and establishing credibility” (Lynch et al. 2008, 128).

The police are the first element of the chain of custody, as they are responsible for constructing the first narrative about the criminal event. The performance of this narrative is reflected not only in its own field but also in the different social and technical arenas (Wyatt 2014a) that comprise the chain of custody.

Forensic evidence is part of an apparatus that consists of traces, bodies, technologies, legal practices and cultural understandings (Lynch et al. 2008), which combine to allow the construction of a narrative about a particular event (Kruse 2010, 2012; Prainsack and Toom 2013). In this sense, justice bodies are simultaneously material and social (Kruse 2016), as separating these bodies from their material template ² and their sociocultural inscriptions is impossible (Latour 1987).

Therefore, forensic evidence consists of both forensic and contextual artifacts being an inseparable part of legal, technological and social practices (Kruse 2016). Maintained by heterogeneous practices, forensic evidence is also co-produced in the biolegal narrative (Lawless 2011).

The documents produced by the police communicate between different epistemic cultures (Knorr-Cetina 1999) – cultures that create and share knowledge, which end (hopefully) with a verdict in court. In the trajectory from the crime scene to the court, several actors create knowledge: police officers, forensic scientists, lab technicians, public attorneys and judges. This knowledge is also created in diverse arenas: police station, laboratory and court. It is in the court that the judge evaluates the evidence produced along the trajectory.

Forensic science plays an important role in the transformation of traces at the crime scene into forensic artifacts, that is, objects of knowledge combining legal and scientific research, which allow those objects to be analyzed in court as forensic evidence (Wyatt 2014a). This becomes visible for the first time in the court (Kruse 2016), but it begins to be constructed at the crime scene through police work, dependent on the reference frameworks of the person who tells the stories (Kruse 2012; Toom 2012). Being constructed in a given way also means that it could be constructed in other different ways.³

These chains of custody are not only made up of traces. They are also crossed by organizational contingencies based on the strategies used by different epistemic cultures and their incorporated social understandings (Wyatt 2014a), which depend on the enactment of formal or tacit knowledge (Michael 1958), turning visible some artifacts and keeping invisible or in a twilight zone other artifacts, that is, artifacts that could have probative value but never gain procedural existence in the police work.

Looking at the visibilities, invisibilities and twilight zones, I will try to understand how police forces at the crime scene in Portugal construct their narratives through the use of biological traces and how these narratives are a part of the construction of the evidence. There is also an innovative character to the possibility of gaining some insights into the functioning of the criminal investigation practices in an inquisitorial justice system and in a Southern European country, which are rendered by analyzing the (in)visibilities of police work.

This paper is divided into three parts. In the first part, it is highlighted how forensic evidence combines scientific practices, which gives it the required objectivity for it to have legal value (forensic artifacts), and administrative practices (contextual artifacts), which guarantee the credibility of scientific evidence in court. I also examine how tacit knowledge, based on action rules and sociocultural understandings, allows the creation of knowledge. Not only are the enacted mundane practices part of the sociocultural understandings (Lynch et al. 2008), but so is the professional vision (Goodwin 1994, 606) understood as a “socially organized way of seeing and understanding events that are answerable to the distinctive interests of a particular social group”. In the second part I briefly explain the procedures of a criminal investigation in Portugal and some of its legal framework and specificities. Finally, in a third part, I present the narratives of three legal cases and produce an analysis of each case. Case 1 concerns an attempted homicide, case 2 concerns a simple theft and case 3 presents a qualified theft.

I argue that in criminal investigations in Portugal, the production of a narrative with legal meaning in court can be conditioned by the co-existence of the epistemic subcultures of police work (different police forces at the crime scene) that have different knowledge, practices, understandings and ways of “seeing” the forensic evidence. The degree of technological enthusiasm that guides the performance of different police forces at the crime scene is reflected in the way they “see” the scene and in the sociocultural understandings that they produce. This technological enthusiasm and what I call here “selective professional vision” are mobilized at the crime scene and can impact the robustness and efficiency of the evidence presented in court.

2. Ways of seeing the crime scene

Science creates the ability to document, see and register images of a crime. Through the use of rigid protocols and the harmonization and standardization of procedures, mechanical objectivity ⁴ (Porter 1996, 9) can be applied to the crime scene, allowing it to be seen without interference in the final result (Daston and Galison 2007, 17). Through the guidance of harmonized and standardized patterns of collection, storage and the analysis of biological traces at a crime scene, the scientification of police work (Williams and Johnson 2008) gains legitimacy and credibility in the legal context. The application of these patterns can be an important contribution to ensuring that the requirements demanded by science are met in court and thus bring a greater scientificity to evidence in court, often based on fragile evidence (such as testimonial evidence).

The crime scene report presents a literal narrative (Wyatt 2014a) that is relevant to understanding how police forces are trained in ways of “seeing”⁵ the space, taught to document it on a worksheet and use conditional language in order to remain coherent. In addition to the report, the use of photos allows the police to not only reinforce coherence but also register “objectively” and contribute to the narrative. Paper trails affirm the role of police in the criminal space and circumscribe police action fields and professional competence by demonstrating that they have followed a set of established procedures. However, if the photographic practice relies on the illusion of a lack of human intervention (Wyatt 2014a), it can be disclosed to subjectivities.

When arriving at a crime scene, the police officer in attendance triggers his power decision based on the concrete context, which may vary depending on the situation. If one part of the formalized work addresses the previously established rules, another part does not depend on formal procedures.

To address a forensic artifact, “mechanical objectivity” allows the production of robust knowledge. However, the production of the artifact depends on the enactment of decision-making processes (van den Eeden, de Poot, and van Koppen 2016) in a given space and time that will allow the production of documents with the capacity to be validated either by science or by legal meaning (Wyatt 2014a).

In this sense, only a part of the scientification can be considered a product of “mechanical objectivity” and submitted to the rigors and protocols of science. The other part of the scientification of police work is connected to what Lynch et al. (2008, 114) call “administrative objectivity” processes, which are founded on the bureaucratic rules inherent to the daily practices of the institutions (Lynch et al. 2008, 66).

The credibility of the evidence can become vulnerable through the enactment of the improved administrative practices on which it is based (Lynch et al. 2008; Wyatt 2014a). Depending on the compliance with rules as well as the mundane action (Wyatt 2014b) becomes more susceptible to detracting from the process of the scientification of police work.

Both the production of forensic artifacts and the production of contextual artifacts are dependent on the interpretation of the observer, sociocultural understandings, and thus the personnel idiosyncrasies of each police officer who is confronted with a criminal scenario. In that sense, distinguishing between formal and tacit knowledge as well as visible and invisible knowledge is important.

According to Star and Strauss (1999), visible knowledge is associated with formal knowledge and invisible knowledge is associated with tacit or informal knowledge. When a police officer documents a process with a written report and photos of the crime scene, he is not only giving visibility to the space but also allowing a greater inspection of his actions and a greater surveillance of his work (Wyatt 2014a). Thus, his role will be to make impure and invisible objects into visible ones.

However, visibility is not provided for everything that is invisible. Some of these things gain visibility through the photos of the crime scene and the written reports; another part of the daily work is kept invisible. A part of the daily work comes to light in one moment but another part is kept in a twilight zone throughout the whole process. This means that these artifacts, in fact, are there, they could have probative value, but they may be ignored by the police force who attends the crime scene. For example, the decision of what is photographed or the decision of what is relevant to be included in the report (Wyatt 2014a) depends largely on the sociocultural understandings of the police force on the ground.

If giving visibility to the narrative of the crime scene through police reports and photos increases the legitimacy of the police work, the actions associated with the tacit knowledge (keeping invisible or in a twilight zone other aspects of the narrative) may weaken that work.

The professional vision (Goodwin 1994), which has been adopted by different agents, may have consequences for the way knowledge is constructed and shared not only between different epistemic cultures (police, laboratory and court) but also between different “epistemic subcultures”, that is, different police forces attending the crime scene.

Although the police are the legitimate actors attending a crime scene, their intervention can be conditioned by several factors: human and technical resources, ways that knowledge is mobilized (tacit or based on formal procedures), police legal framework and other legal provisions, as the legal system. All of these factors can contribute to changing the way the criminal investigator attends crime scenes and the way the narratives are constructed.

3. Criminal investigation in Portugal – some specificities

In adversarial systems, like in the UK or USA, the disputing parties (the prosecution and defense) can present their versions of the facts. Being an occasion for a confrontation between the representatives of the state and the accused, in which the evidence is discussed and deconstructed in court, whether in terms of technical doubts, in other shortcomings of the evidence or even breakdowns in the chain of custody. In the inquisitorial legal systems, as is the case in Portugal (and most Western European countries), the judge are considered the “experts of experts.” Besides the crucial role of conducting the trial, they have to determine which pieces of evidence are admissible and evaluate them within the context presented. Thus, the judge plays an active role as a “fact finder.” The Public Prosecutor bears the burden of proof and, even though the defense may request further expertise on the same or other evidence, this has to be authorized by the judge, meaning that re-examination of evidence is rarely requested or admitted in courts, favoring the idea that expert evidence is not contested (Machado and Costa 2013).

The Law 49/2008 of 27 August (Organization and Investigation Criminal Law – LOIC) regulates the criminal investigation organization and procedures in Portugal.

Portugal has three police forces: the Judiciary Police (PJ), the Security Police (PSP) and a military police force (GNR). The first is responsible for criminal investigation in the country, the second is a police force with a security character and a great presence in urban areas and the third has a military role with intervention in rural areas.

This law states that the first step to be taken by the police after a crime is reported is to inform Public Prosecutor’s Office. However, even before receiving orders from the judicial authority, police forces may carry out urgent measures required to secure the crime scene and the evidence. As set out in Article 7 of LOIC, crimes involving homicide and sexual assaults are, specifically, under the responsibility of the PJ. This is the entity that manages the crime scene, assisted by the PSP or GNR, depending on which police force is in closest proximity.⁶ GNR and PSP, in addition to conducting urgent acts to secure evidence in crimes that are under the jurisdiction of the PJ, are also responsible for developing diligence in investigating crimes under their capability.

According to LOIC, sexual crimes and homicides are two types of crimes under the jurisdiction of the PJ. Theft, robbery (without fire arms), kidnapping or assaults are crimes within the jurisdiction of the first attenders, that is, proximity police forces. This law also states that the collection of biological traces falls under the jurisdiction of the PJ, while the collection of fingerprints is the responsibility of the PSP and GNR. Thus, when addressing crimes under the jurisdiction of the PJ, proximity police forces should only take steps to enact the most necessary measures in order to preserve the crime scene.

What is established by the law is based on the previous assumption that all police forces are capable of intervening efficiently at the crime scene, carrying out the initial investigation, preserving the crime scene and executing the initial protective measures in order to guarantee that the subsequent interventions are done correctly. Nevertheless, previous studies conducted in Portugal reveal the ambiguities of this law and the difficulties involved in its application. Some reasons are based on the absence of a clear definition of responsibilities for the criminal investigation work, the lack of technical and scientific training for the PSP and GNR and the scarcity of human and material resources that would allow these police forces to collect traces efficiently from the crime scenes (Machado and Costa 2013; Costa 2014; Costa 2015). These studies also reveal the existence of a pro-active attitude on the part of the proximity police forces (Costa 2015), even with respect to crimes that are not in their jurisdiction. This situation leads to the identification of different ways of knowing and different practices among different police forces that are present at the crime scene and have different resources (Machado and Costa 2013; Machado and Silva 2010; Costa 2014, 2015). The practices used are strongly marked by the “evidential pragmatism” (Santos 2014, 182; Costa 2015) of the police’s activities. This pragmatism could lead to a discretionary and situational understanding grounded in their different sociocultural understandings (Costa 2017) and with an impact on legal decisions.

Although Portugal began the scientification of its police work at the end of the twentieth century, its criminal investigation activities have to deal with these particular circumstances – that is, trying to balance the legal requirements and jurisdictional framework, with the scientific and technological advances and the inherent sociocultural understandings.

4. (In)visibilities of the criminal investigation in Portugal

To do this research, I first requested permission to the Portuguese Prosecutor General Office. After receiving authorization, I asked the Scientific Police Laboratory (LPC) to elaborate a list with all the cases in which there had been a collection of biological traces. A list with 263 cases was provided from all the cases that entered the LPC between 2002 and 2012, covering the whole territory, all types of crimes and all police forces. A sample of 20 cases was selected, considering the diversity of crimes, geographical diversity and different police forces attending the crime scene. The sampling of the cases was also affected by constraints of time and resources, as well as by the high non-response rate from the courts where permission was requested to access the trial proceedings. The fact that the sample was constituted on the basis of the list provided by the LPC can pose a degree of bias, since, in all analyzed cases, biological traces were collected and delivered to the laboratory. In this sense, nothing is known about the cases where biological samples were not collected.

Nevertheless, considering the cases that were analyzed and the main conclusions based on the procedures used by the police, I believe that significant differences would not be found.

Twenty judicial proceedings were consulted: five were classified as qualified theft, six were simple theft; three robberies, one assault; two of sexual abuse of a child; one attempted homicide; one rape and one kidnapping. The large majority were thefts. Half of the cases reached the prosecution stage, but 45% of them were dismissed in the investigation stage, with the most serious crimes reaching the trial stage. In those cases that reached the trial stage, 70% resulted in a conviction, in 20% there was a withdrawal from the prosecution and the remaining 10% were dismissed by the court.

If we look at the total set of proceedings, 45% of the cases were dismissed in the investigation stage and 5% in the prosecution stage. This means that half of the investigations were closed, and there is no way of knowing what happened. Thirty five percent of the remaining cases resulted in a conviction; 10% in the withdrawal of victim(s) and 5% of the case were still ongoing.

Based on a qualitative approach (Charmaz 2006), my question is: How are sociocultural understandings and the professional visions reflected in the production of forensic artifacts? All these cases have been examined in the post-doctoral research project “Trajectories of traces in crime scenes,” funded by the Portuguese Science and Technology Foundation (FCT, SFRH/BPD/63806/2009).⁷

I describe three cases that show different crimes, with different police forces attending the crime scenes (under their jurisdiction, or not), and the different situations that police forces face, and the different understandings and practices to deal with them.

The criterion used to select the extracts was one that allowed the highlighting of the polices’ understandings and practices, thereby omitting other aspects of the narratives that are not directly associated with the decision-making processes toward solving the case.

As Kruse (2016) states, narratives are constructed. From this perspective, it implies that narratives could have been constructed in multiple and alternative ways. In these cases, the narratives were constructed from the biological traces as they were seen and collected. This implies that if other traces were seen (or searched for), according to an alternative professional vision, the narratives constructed could have also been different.

4.1. CASE 1: attempted homicide

4.1.1. The narrative

This is a 2005 case of the attempted murder of a 43-year-old woman that took place when she arrived home and was preparing to enter her garage at night. The suspect was her husband. He confessed to the authorities that he stabbed the victim. The PSP, the proximity police, attended the scene and removed the car to perform the inspection and then called the PJ, as the crime fell under their capabilities. The PSP described the locale, stating that several people were at the place and the vehicle was open and with blood traces (stains) in the front seats. The victim had already been transported to the hospital, and the police officer went there to hear her story. The victim declared that when she arrived home, her husband entered the car with an open knife in his hand and stabbed her in the face, neck, arms, chest and back. She stated that while stabbing her, he said: “Since you are not for me, I’m going to kill you; I don’t mind going to jail.”

The collection of biological traces was done the next morning by a PJ officer in the PSP parking lot. The report had eight photos:

One swab containing supposedly hematic traces collected in the front door at the left side, outer side of the referred vehicle, according to photo number 4 of the photographic report; 2- One swab containing supposedly hematic traces collected in the upper part of the driver’s seat ( … ); 3- One swab containing supposedly hematic traces collected on the front door handle on the right side ( … ); 4 - One swab containing supposedly hematic traces collected on the right front door trim ( … ); 5 - One swab containing supposedly hematic traces collected in the ladies suitcase on the front seat on the right side of the vehicle, as shown in photograph no 9 ( … ).

The fingerprinting report was also done the same morning by a PSP officer who mentioned that no dactyloscopic traces had been collected. That same day, the PSP requested that the public prosecutor’s office authorize a search and seizure at the suspect’s house. Three PSP officers followed the order. At home, inside the washing machine, there was a yellow shirt and a green coat with traces of blood. In the bedroom wardrobe, a pair of green trousers, also with blood traces, was found. Inside his vehicle in the garage, a Swiss army knife was found, “probably used to perpetrate the injuries,” PSP says.

Nine pictures taken by the PSP were added to the judicial proceeding.

Photo 1: Knife used in stabbing; Photo 2: Shirt that suspect wore while stabbing with traces of blood on the left sleeve; Photo 3: More detailed photo of the right sleeve of the shirt, which the suspect wore at the stabbing and which has noticeable traces of blood; Photo 4: More detailed photo of the left sleeve of the shirt, which the suspect wore at the stabbing, with traces of blood on its wrist; Photo 5: Jacket that the suspect was wearing when he stabbed the victim; Photo 6: Left sleeve of the jacket that the suspect wore when stabbed the victim, with traces; Photo 7: Jacket pocket, left side, with traces of blood; Photo 8: Trousers that suspect supposedly wore when he stabbed the victim.

The public attorney ordered the detention of the suspect.

In addition to this photo report of the traces collected at the suspect’s house, the photo report created by the PSP of the victim’s vehicle also added nine pictures to the judicial proceeding.

Photo 1 – Vehicle viewed from the front; Photo 2 – Vehicle viewed from behind; Photo 3: Passenger compartment, driver and passenger sides, with a bag and a knitted cardigan on the right seat and a pair of glasses and exterior reviewer mirror, left side on the drivers’ seat; Photo 4 – Drivers’ seat with blood traces; Photo 5 – Passenger seat, right side front, with several blood traces; Photo 6 – Window from the front door right side, with blood traces, inner side; Photo 7 – front door, right side, inner side, with blood traces, next to the handle; Photo 8 – Front seat right side, and part of the panel, inner, with blood traces; Photo 9 – Victim’s bag, left on the front seat right side with blood traces.

The suspect made a statement saying that in the night before, he had called the victim in order to arrange a meeting for the next day. On that night – he explained –, after meeting her, he had dinner and drank too much. He arrived at the appointed place at 10 pm but she didn’t appear. He waited for 40 minutes and he decided to go and see if she was at home. He saw her getting out of the car to open the garage door and approached her and said that she had been with another man. Since she confirmed, he said that he lost his mind and stabbed her with his knife, stating that he would not have done it if he had not been so disturbed by alcohol. He said that he stopped because he became nauseous with the blood. “He didn’t want to kill her; he didn’t know what he wanted,” stated the PSP.

A buccal swab of the victim was made and sent to the LPC⁸ together with the suspect’s shirt and knife. Twelve months after the event, the LPC sent a report confirming the existence of a match between the buccal swab taken from the victim and the stain in the defendant’s shirt. Concerning the knife, LPC states that “no results were obtained possibly due to the small sample size.” When the case was to be moved to trial, the victim withdrew the complaint. Nevertheless, since the case qualifies as a public crime, according to the Portuguese law, the court continued with the prosecution. During the trial, the victim, the witnesses and the defendant remained silent and the case was dismissed for lack of evidence.

4.1.2. Police investigation of the case

In the case of this crime within the jurisdiction of the PJ, it was the PSP who attended the crime scene about three hours later, as it is one of their tasks, according to LOIC. If the first attenders already described the scene, nothing was said about whether it was isolated except for a mention to the “existence of several people.”

The PSP described the place, but nothing was said regarding the preservation of the scene. Instead, the place where the crime occurred and the procedures followed by the police were all rendered invisible.

The report stated that the vehicle was transported to the PSP parking in order to preserve the traces. The understanding that “the natural border of a scene” (Wyatt 2014a) was the car itself raises the issue of whether there seemed to be care in wanting to preserve the traces in the car at the cost of the PSP possibly neglecting the wider context (Costa 2017). In addition to having giving invisibility to the locale in which the crime occurred (near the victim’s garage), which was not photographed or inspected, nothing was said about the care taken in the car’s transportation. Who transported the car? How it was transported? What measures were taken?

The inspection of the victim’s car was conducted in the police garage. There were two photographic reports – one was generated by the PSP and the other was generated by the PJ (Figure 1 and Figure 2).

Figure 1. PSP photo report.

Figure 2. PJ photo report.

The same objects were described in different ways, using different language, using different markers, revealing different sociocultural understandings of what seemed important to make visible. In the photographic report, the same item (the right door of the car) was described differently. While the PJ described it as “containing supposedly hematic traces,” the PSP described the same as “blood traces.” While the PJ made use of conditional language, the PSP assumed it was, in fact, a blood trace. While the PJ respects the presumption of innocence the PSP assumes that the suspect is guilty. While the PJ made a blue circle in the computer image to highlight the precise location where the stain was found, the PSP put a paper marker (with a ruler) on the door handle, just beside the stain’s location. In addition to the two different ways of doing and seeing the “same,” the double intervention by two different authorities may have introduced contamination into the space.

When the PJ was called to the crime scene, they could no longer decide whether they wanted to do the inspection of the vehicle at the locale or whether the vehicle must be removed. By analyzing the vehicle in another place, the PJ may have had to deal with issues arising from the transportation from the crime scene and the investigations done by the proximity police. When the PSP did the photographic report and incorporated the scale markers into the vehicle, they may have introduced contamination, as nothing was known about the precautionary measures taken during this examination. When the PJ did their work, they had to articulate good practices and simultaneously manage the understandings done by the police who first arrived at the scene.

The next day, a search and seizure of the suspect’s house was authorized by the Public Prosecutor. Unlike the victim’s car inspection, only the PSP investigated the house and the suspect’s car. However, as with the work done in the inspection to the victim’s car, the PSP continued using the same kind of language, describing the items founded as: “knife used in the stabbing”; “shirt that the suspect was wearing when stabbing,” and so on. The suspect’s belongings were photographed (trousers, shirt, knife) but not the space itself; the surrounding space was not considered. It made invisibility except for the washing machine where the clothes were found and to the car compartment where the knife was found. Thus, if visibility was given to the victim’s vehicle, the suspect’s vehicle was maintained in a twilight zone. In addition, no indications were given regarding where belongings were photographed (whether they were in the suspect’s house or in the police office), what kind of precautions were taken in the collection of traces (e.g. with or without the use of gloves, stored together or separately, using different types of bags according to the nature of the traces), how they were transported from the suspect’s house to the laboratory or which trajectory was used. While the biological traces in the victim’s car were collected by the PJ, the biological traces at the suspect’s house were collected by the PSP. Moreover, the PJ made a second photographic report in the victim’s car; they did not do it in suspect’s house.

The photo report of the victim’s vehicle appeared only in the PSP parking lot. The biological inspection report was also done at that time. By analyzing the photo reports done by different police entities (PSP and PJ), differences can be identified in terms of procedure and which matters to make visible.

Aside from identifying the swabs collected and duly documented with pictures, the report on the collection of biological traces conducted by the PJ on the victim’s vehicle also had a description that used conditional language (Wyatt 2014a). In the photo itself, there was a blue circle to identify the precise zone from which a stain was extracted. However, while the PJ used conditional language (“supposedly hematic traces,” for instance) to describe the same objects, the PSP assumed that those objects were, in fact, blood traces: “driver’s seat with blood traces” or “victim’s bag, left on the front seat right side, with blood traces.”

Additionally, if the PSP was careful to note areas of potential for the investigation, they used markers (with a rule and self-adhesive papers) apparently with the desire of revealing and giving visibility to those critical zones. However, the PSP accomplished this in a different way from the PJ, who chose to mark these same zones in the computer (with a blue circle on the zone that mattered) in order to avoid contamination.

There was no photo report of the search and seizure at the defendant’s house. Thus, if visibility was given to the victim’s vehicle, then the suspect’s vehicle and his house – where objects with probative value were found – were maintained in the twilight. In particular, they ignored his vehicle, which could have marks of tampering with the victim’s vehicle and the knife, which was found in the car’s glove compartment. Total invisibility was given to the plate of the two vehicles by police entities without any mention or information that indicated that diligences had been made in terms of investigating this information, which could provide additional evidence of the facts.

It should be noted that this is a case with several biological traces, in which no fingerprints were taken. In fact, at no time did fingerprints appear to have been considered either in the victim’s vehicle inspection or in the suspect’s knife inspection, for instance. By choosing to collect biological traces, the proximity police can, on the one hand, affirm its competence and legitimacy in the criminal investigation process. It appears that the choice of the forensic artifacts associated with the new technologies will import a greater credibility to their work. In doing so they recognize DNA as the “triumphant hero” (Prainsack and Toom 2013). However, they may contribute to other relevant evidence to be neglected with prejudice to the truth finding in the case. This option could be associated with the assumption that this technology is more reliable than others (Cole 2001; Jasanoff 2006) and, consequently, biological traces operate as the motor of a truth machine (Lynch et al. 2008) which allows the discovery of truth beyond doubt. Thus, they seem to choose biological traces, instead of wasting time with dactyloscopic traces, when they believe they can participate and contribute as “technical agents of the scientific rationality” (Machado and Silva 2010, 156).

Finally, regarding the victim’s buccal swab, although in this case it was not the police who made it but the Legal Medical Office, her consent was not documented in the process, nor was the swab itself. Nothing is documented about where and when the buccal swab was collected. Thus, there seems to be a growing use of buccal swabs in criminal investigation, but instead of allowing an increase of rigor in the way it is used and by whom it is performed, it seems that there may be a trivialization of its use, enabling any actor involved in the criminal investigation to be considered fit and legitimated to perform the collection of a buccal swab.

The use of gloves, the use of an informed consent form to collect a buccal swab, or even the right to the presumption of innocence, are sometimes made visible, and other times remain in a twilight zone, as it occurred in this case and with consequences for the preservation of the chain of custody.

This case shows that, even in crimes within the PJ jurisdiction, the pro-active attitude (Costa 2015) of the proximity police can impact in the constructed narrative. It also shows that different sociocultural understandings from different epistemic subcultures make different issues visible and show different ways of doing and seeing. The knowledge that was produced and shared by different police forces (PSP and PJ) depends on their “selective professional vision,” which makes some artifacts visible and others hidden, according to the police’s reference frameworks (Prainsack and Toom 2013) and their degree of “technological enthusiasm.”

Using the photo reports, this case allows us to understand what each police force considers relevant at the crime scene and how tacit and formal knowledge are enacted according to the police force attending the crime scene (Costa 2017). These reports also reveal their role as a way of giving legitimacy and credibility to the work done. While PSP seems to make the photo report of the crime scene to allow them to give credibility and document their work, the PJ seems to consider this work to be insufficient and moves toward a renewed diligence as a way of claiming the epistemic and occupational space for themselves and demarcating their work and the work done by “the others” (Wyatt 2014a; Costa 2017).

The “technological enthusiasm” demonstrated by the proximity police, driving their “professional vision” for the biological traces, could have contributed for the final outcome.

Although this case was carried to court and had documental and testimonial evidence, as well as a confession, the biological evidence ultimately sealed the fate of the case. The silence of the victims and witnesses during the trial, together with a crucial biological trace – the knife –, revealed “the small sample size” that may have contributed for the final outcome.

4.2. CASE 2: theft case of a coffee shop⁹

4.2.1. The narrative

In May 2003, a theft at a coffee shop occurred between 3.30 and 6.30 am. The complaint was made at 9 am to the GNR. Two officers wrote the report stating that there were several signs of a break-in, “the filchers having introduced themselves by the roof, removed a half pane of cement and broken the other half to provide enough width at the entrance for a person of lean stature.” According to the report they rummaged in the cash register, opened the cigarette machine and removed all the packs and money, violated the flippers machine mechanism, withdrawing all the money and stole a TV. Taking into account the scenario found, the PSP believed that “there was more than one filcher as well as a vehicle according to the TV dimensions.” In view of the blood traces detected, the PSP requested the presence of their Group of Technical Support

which immediately went to the locale, collected traces, and also proceeded to the inspection of several zones that were in contact with the criminals in order to collect fingerprints. However, the effort was fruitless, as they were believed to be using gloves ( … ).

Two days later, the GNR received an anonymous phone call accusing the former owner’s son, Tomé. The GNR asked the anonymous individual if he had seen the robbery. He laughed and said: “a person does not see what he does want to see to.” Then the police officer asked him if the objects could be at the ex-owner house – Eva’s house. To this question, he answered loud and clear: “Bingo!”

After the phone call, the GNR requested authorization from the public prosecutor to conduct a home search.

Three weeks later, the former owner – Eva – was heard saying that: “( … ) on the night the theft occurred, she heard [a friend] commenting that three individuals were coming, each one with his black bag on his back ( … ).”

At the end of January 2004, the LPC sent its report.

1. A swab, stained at the end in a grayish yellow tone.

2. A piece of paper on which a brownish-red stain was detected and presented, among other references, “totoloto 0/00” ( … ).

From the analysis of these two traces, the LPC concluded that in swab I, “blood traces were detected” and in the piece of paper (II), “human blood was also detected.” They ended by saying that “the analysis will be made if a buccal swab of the suspect(s) is sent.”

In November 2004, the public prosecutor requested that the GNR inquire Ana – a witness. She said she left the Disco “Queen” together with three boys: Alberto, Luis and another one she claimed was Francisco. The three left her at home and she doesn’t know where they went after that time.

On the same day, and based on Ana’s testimony, the public prosecutor requested that Alberto, Luis and Tomé were taken to the PJ to extract a buccal swab. Luís attended on the appointed day. A new date was assigned to the others, but only Tomé was present. The PSP informed the public prosecutor that Alberto was out of the country. The prosecutor then requested that the GNR try to locate him, and some days later, the PSP informed them that he was identified in France, presenting his actual address. Nevertheless, the police sent to the laboratory the two buccal swabs to be compared with the two traces found at the crime scene.

In June 2005, the LPC sent its report, concluding that there was no identity of polymorphisms ( … ) from the biological traces present on the cigarette butt, or the buccal swabs collected from Alberto and Luis. Therefore, they should be excluded as donors of those traces. LPC also reported that in the DNA analysis of the biological traces present on the cigarette butt a profile from a male was obtained.

Taking the existing evidence into account, the case was dismissed by the Public Prosecutor and charges were not made.

4.2.2. Police investigation of the case

The theft must have occurred during the night; the complaint was made by 9 am, and one hour later, the GNR conducted their inspection. Despite the existing signs of a break-in that included a door damaged, an entrance by the roof, a cash register ransacked, a cigarette machine opened and a flippers machine violated, the lofoscopic inspection that was conducted was negative. However, in this case, the lofoscopic inspection was performed, and the police mentioned that the perpetrator(s) could have made use of gloves (which did not occur in the previous case).

In this case, an accurate photo report also existed depicting the several objects handled and a picture of the lotto bulletin sent to analysis. However, nothing is known about the locale where this bulletin was found. Concerning the cigarette butt sent to the laboratory, it was not photographed, or at least, it was absent from the report. The lofoscopic inspection report states that “no traces of identifying value were collected” and that “the biological traces supposedly hematic (blood) were sent on that day to the LPC ( … ).” It does not mention either which biological traces have been collected. Nothing is known about the cigarette butt. Reading the case files, it was only when I reached the report of the LPC that I mention of a cigarette butt and a lotto bulletin. The GNR had collected two samples and sent them to the laboratory, but failed to describe them, or sending identified samples for comparison. This situation led the LPC to inform that “the analysis will be made if a buccal swab of the suspect is sent.”

This situation was found several times in the analyzed proceedings. Giving visibility to the biological trace found at the crime scene but leaving hidden something to compare it to seems to show that either the police forces are unaware that the biological evidence is of no utility if there are no reference samples, or that they believe that at some point during the investigation new elements will emerge and contribute to solve the case. The fact that biological traces are found at crime scenes does not guarantee answers to the investigation by itself. Placing someone in a crime scene is not the same as assuming guilt (Kruse 2012; Prainsack and Toom 2013). A link between the suspects and the crime scene is needed.

If it was present in the negative lofoscopic inspection report, it was absent in the biological inspection report. This is the reason why we only realized the existence of the cigarette butt when the LPC sent the report. In this sense, nothing is known about when the traces were collected, by whom, and with which precautions. This is another example of a trace with potential probative value that is sent to a twilight zone, as it is omitted from the police report.

It must be highlighted that the police assumed that was in the presence of more than one individual, considering the size of the stolen TV. Tomé (the son of the former owner) was the previous suspect, according to the anonymous phone call. His mother – Eva – was associated to the phone call as his accomplice. Later, Ana’s testimony gave consistency to the possibility of more than one suspect, referring to three suspects: Alberto, Luis and Francisco. Tomé and his mother, and the three new suspects identified by Ana to the police, led to the idea that there could be six suspects. Ana was formally inquired, Tomé’s mother was inquired as a witness but the search to her house, requested by the police, was never made. Surprisingly, Tomé, Alberto and Luis were asked to provide a buccal swab. Francisco – the other man identified by Ana – Eva and even Ana disappeared from the list of the suspects from whom a buccal swab must be taken. In fact, the buccal swabs were requested only to the three suspects: Tomé, Alberto and Luís, keeping invisible an explanation for discarding the others.

A buccal swab was taken from Tomé and Luís. In the proceedings there is no information concerning their consent. Invisibility was given to this issue, not allowing to knowing if consent was ever given, or in which way or where it is documented. In these buccal swabs, no matches were found with the biological traces collected by the police. Alberto was identified in France. An effort was made to locate this suspect and when this was made, the police’s decision was that it was not necessary to go and inquire him, or ask the French authorities to collect a buccal swab from the Alberto, or even wait for his return to Portugal to collect the buccal swab. Consequently, Alberto was never subjected to a buccal swabbing. Even the absence of a match between Tomé and Luís with the biological traces did not lead the police to insist in the search of Alberto and the collection of a buccal swab. Moreover, Ana’s testimony made mention to another person – Francisco. However, the police did not try to identify him.

In this sense, it seems that the understanding of the GNR is that what matters is to collect biological traces and the laboratory and DNA will do the rest. Again, this is forgetting that without something to compare, technology (and DNA, in particular) will not help.

The fact that there were two identified suspects, to whom buccal swabs were collected seems to have reassured the police that based on these two buccal swabs the case would be solved, neglecting the need to carry out other tasks, like the home search or the identification of other potential suspects, or neglecting to acquire consent for taking buccal swabs. The reasons that led the police to follow these clues and leave them in a twilight zone are also invisible in the reports.

This case demonstrates that the police sociocultural understandings can drive a narrative in a certain direction. Starting with a prior understanding of the scenario, the traces are selected in order to obtain the evidence that fits with that narrative. It also shows how suspects can gain or lose visibility according to the reference framework adopted. Finally, this case also shows that some people appear more to be suspect than others (Kruse 2016).

4.3. Case 3: theft of jewelry

4.3.1. The narrative

In February 2003, there was a theft of jewelry with three male suspects. The complaint was made at 4 am, and the report stated that “Diamond” Jewelry had its protection bars forcibly lifted, the window glass broken and the exhibitor was jumbled. The police were informed by witnesses that, moments before, three males between 20 and 30 years, hooded and using hammers, robbed the shop, getting away in a black-colored vehicle, with the registration 00-00-ZZ.

The inspection report referred to the existence of “handling surfaces, external bars and exhibitors.”

Two days later, the PSP sent a request to the LPC asking for a DNA analysis from the collection of supposedly hematic traces using a swab with a trace collected in a plastic exhibitor ( … ) that was inside the showcase.

Three months after the event, the owner was interviewed, stating that the perpetrators were three-hooded individuals who were in a dark-colored vehicle that was seen by a neighbor ( … ).

One week later, the police officer who was at the crime scene made a statement:

( … ) the assault was perpetrated by three hooded male individuals ( … ) who were in a dark colored vehicle, registration 00-00-ZZ, according to information given by an eyewitness, who at the time of the event was not able to identify the perpetrators and preferred anonymity.

An informatic search was performed on vehicles with registration that started with the pair ZZ and ended with 00, and 19 vehicles with those characteristics were identified over several models, brands and different geographic locations, which is why it is impossible for this brigade to determine which vehicle was involved in the assault.

In July, the LPC sent the report stating that in the sample “blood traces were detected” and the DNA analysis “could be done if a buccal swab of the suspect(s) was sent.”

In the beginning of the following year, comparing this case with other cases with similar modus operandi, the police identified seven Romanian suspects: five male and two female. The PSP sent five buccal swabs to the LPC. The swabs had been collected from five of the seven suspects of Romanian nationality, indicating that they were “accompanied by the respective Declaration of Authorization for the collecting for identification of blood traces collected in the inspections related to the jewelries ( … ).”

In November, the LPC sent its report with no polymorphisms matching the hematic traces detected on the swab collected at “Diamond” jewelry to the buccal swabs of the five suspects. However, a male profile was detected.

Pictures of the buccal swabs taken from the suspects were attached to the report as well as the informed consents, dated and signed.

None of the five suspects did match with the trace collected in the exhibitor and the case was closed in the investigation stage.

4.3.2. Police investigation of the case

The lofoscopic inspection highlights the existence of “handled surfaces: exterior bars and exhibitors.” In addition, the biological traces report states that the police collected “01 swab with a supposedly hematic trace from a plastic exhibitor of earrings, which were inside the broken showcase.”

In the PSP narrative, nothing was said about the way the first officer attended the locale, and was cautious not to damage any traces with potential identifying value. The fact that nothing was said could indicate that it was not seen as relevant to have other entities assess whether the performance was well or poorly conducted. Since only biological traces were collected, we can conclude that in this case, the PSP only had the option to collect the supposedly hematic trace, devaluing other potential traces with identifying value (such as fingerprints or the car’s registration) and other elements collected at the crime scene, such as the eyewitness information.

Although the judiciary team had been to the locale, nothing was said about what they performed. A photo report at the crime scene or collection of traces themselves was not done.

Once again, the first attender – in this case, PSP – sent the trace collected to the laboratory, but nothing followed to compare, as occurred in case 2 (Figure 3).

Figure 3. Bucal swabs and corresponding consents.

The PSP report noted that five swabs with the corresponding consent were sent. This information was imprecise, since one of the consents was missing. Andrei’s consent was not included, and the reasons for that absence was not indicated – whether he consented or not or whether the consent was lost.

Therefore, it may seem legitimate to conclude for the absence of a routinized procedure for the collection of reference samples for comparison. If a reverent attitude toward science can be observed by the police officers, this does not appear to be accompanied by the necessary good practices required, which legitimize its use in a legal context. It also appears that for the first attenders the collection of biological traces is the crucial step of the scientification of the police work, neglecting the procedures that sustain the coproduction of science and law.

Although there is an eyewitness who identified some suspects in the jewelry case, the fact that anonymity was requested may have led the police not to pursue the information provided by the eyewitness. Only after studying the modus operandi and leads from other cases it became possible to identify the seven Romanian suspects. If the information provided by the anonymous eyewitness was discarded in a first moment, later, when associating it with other similar cases, the police used the eyewitness information to conclude that they were looking for five male suspects, removing suspicion over the two Romanian females. Given that the eyewitness’s statement mentioned only three suspects, the police only collected buccal swabs from the five male suspects. The report stated that the perpetrators wore hoods, which made it difficult to ascertain if they were male or female. Consequently, the assumption that all perpetrators were male determined an investigative narrative that left the two female suspects in the twilight zone of discarded leads.

Although this case had the advantage of comparing three events in order to find the authors of several crimes perpetrated in the same area, the suspicion lies with the Romanian group. Using the professional stock scripts and the shared knowledge arising from the association of several cases with identical modus operandi, the investigation can be facilitated and reach out to suspects more easily. Again, this makes certain people more suspicious than others (Kruse 2016). In this case, Romanian nationals were deemed more suspicious than others, and men more suspicious than women.

Nevertheless, the LPC report discarded suspicion over the female individuals. It was not necessary to collect their buccal swabs insofar as the analysis of the crime scene traces detected a male profile. In any case, the police failed to identify the perpetrator(s), even if they were following one or several male suspects.

The relevance of this case lies in the way it shows how the professional vision of police forces is directed toward the search for biological evidence, which can lead to a weak narrative, instead of complementing the biological evidence with other evidence that, if carefully considered, could lead to stronger evidence in the aid of justice, notwithstanding the subjectivities that intervene in the construction of the narrative.

5. Conclusion

The analysis of these three cases reveals that forensic artifacts produced in criminal investigations in Portugal rest largely on the way that contextual artifacts, sociocultural understandings and the “selective professional vision” are mobilized by different “epistemic subcultures” to produce knowledge.

To the PJ, the contextual artifacts may offer coherence, credibility and legitimacy to forensic artifacts collected at the crime scene; to the proximity police, forensic artifacts seem to allow contextual artifacts to gain credibility. The care with the chain of custody and the production of forensic artifacts in the proximity police context seems to rest on the fulfillment of contextual artifacts such as notice report, entrance hour, exit hour, signature, etc., that do not seem care whether the elements fit together and are meticulously articulated with the discovered forensic artifacts.

Without a methodical and structured way of working, the cases are evaluated in a discretionary way, with some information highlighted and some turned invisible or kept in a twilight zone.

Biological traces seem to be chosen by police forces at crime scenes. Despite the current knowledge that criminals avoid leaving evidence of their passage, namely, by using gloves (Machado and Prainsack 2013), there were cases in which this did not occur (case 1). However, the proximity police opted to give invisibility to fingerprint collection, which could have helped the investigation through its association with the production of other artifacts.

The police have different ways of producing photo reports; they have different ways of describing the same objects, and the description (or lack of description) of these same objects reveals different understandings and different cultures of action.

Concerning the buccal swabs in the cases analyzed here, it was possible to understand that a discretionary use of swabs is occurring. Swabs are taken from the victim (case 1), from the suspect (case 3) or they are collected in legal medicine offices (case 1) by the PJ (case 3), or in other cases (not analyzed here) by the proximity police themselves (Costa 2017). A discretionary use of informed consent was also identified, visible in some cases, in a twilight zone in other situations.

The police intervention appears legitimated by an uncritical use of DNA technologies (Wyatt 2014a), resting on the euphoria and belief in the infallibility of DNA technologies. In the legitimate yearning to find unmistakable answers for the crimes under investigation, first attenders neglect other relevant questions in their daily practices.

More than the scientific practices, it seems that the individual practices and the sociocultural understandings shape the evidence (Kruse 2012). Therefore, it is often the tacit knowledge that determines the trajectory of the trace and its interpretation in the legal context.

The technological enthusiasm that in recent years has marked the criminal investigation in Portugal, if it has contributed to the development of the scientification of the police work, it has not yet been able to claim the epistemic space of the PJ. Allowing the proximity police to extend their skills, they neglect important premises of the articulation between practical knowledge, legal understanding and production of knowledge, which are crucial for successful investigative tasks.

In this sense, it seems plausible to conclude that in the same way that epistemic cultures of the criminal justice system (Knorr-Cetina 1999) have different understandings of what is valid knowledge and how that knowledge must be produced (Kruse 2016), different police “epistemic subcultures” also have different understandings of what is valid knowledge and how it must be achieved. If all police forces try to highlight forensic artifacts that will assist the justice system, then the organizational elements, the sociocultural understandings and the “selective professional vision” mobilized by different police forces can uncover the contextual elements that create scientific evidence rather than the scientific evidence itself.

Therefore, if the narrative must be constructed and then grounded on the traces collected at the crime scene, it seems that in the Portuguese context, the proximity police’s vision is directed to see biological traces which will (supposedly) allow giving coherence to their narratives. If other traces were seen (or searched for), according to a different professional vision, the narratives constructed could have been different and also the outcome of the cases.

The police forces construct their narratives through the (biological) traces that they find at a crime scene and these same narratives that are based on their “selective professional vision” that a constructs the evidence.

Using a selective professional vision, proximity police forces not only do not respond to their own interests – to find the author of a crime – but also preclude the pursuit of the interests of justice. At most, it allows answering to the immediate interests of a certain professional group – first attenders – that is driven by their technological enthusiasm, while conditioning the potential contributions that science could provide to justice. Grounding their work in practical actions more than in compliance with the formal rules, proximity police forces in their auxiliary tasks to the PJ may contribute to undermine the scientification process. Consequently, they can condition the trajectory of traces, weakening (instead of strengthening) the story and the legal understanding that the coproduction of science and law claim. They also contribute to the production of a distorted narrative, casting doubt on the chain of custody and the robustness of the evidence in the court (Machado and Costa 2013; Costa 2014, 2015).

The belief in DNA’s potential, and the degree of “technological enthusiasm” that police forces assign to this technology in Portugal is grounded in the local tensions that are created by the transference of a technology that has its origins in societies and cultures with different traditions of technology governance. This can determine the value that forensics science has as an auxiliary to the judicial system, and may ultimately render it into an apparent credibility (Wyatt 2014a) without the desired effects on justice. Without a Public Prosecution Service or judges actively questioning the practices along the chain of custody, the idea that DNA is not contested by any epistemic culture of the Portuguese criminal investigation panorama is increasingly reinforced.

Disclosure statement

No potential conflict of interest was reported by the author.

Additional information

Funding

This work was supported by Fundação para a Ciência e a Tecnologia [grant no: FCT, SFRH/BPD/63806/2009]; Exchange [grant no: 648608].

Notes

1. According to Lynch et al. 2008, 268), a chain of custody allows to affirm the identity between the evidence gathered at a crime scene and the evidence presented in court. It pertains to “formal requirements for assuring the courts that the movements of evidence were continuously monitored and that proper analytic procedures were adhered to” (Lynch et al. 2008, 268), see also Toom (2012).

2. This term was coined by Foucault and refers to the set of relation strategies or forces that support or are supported by different types of knowledge (Foucault 1979).

3. See van den Eeden, de Poot, and van Koppen (2016, 476) where they explore the effects of prior information: “[o]bjects may be interpretable on more than one way, depending on the exploration adopted of what happened.”

4. Porter (1996, 9) refers to the mechanical objectivity to account to the importance given to impersonality of numbers in the face of human experience. According to the author “[t]he decision taken through the figures has the appearance to be fair and impartial”, see also Daston and Galison (2007).

5. Goodwin uses the term “professional vision” (1994).

6. This issue is not exclusive to Portugal. In other countries, the closest police forces first attend at the crime scene. See Lynch et al. (2008), about the Swedish case. See also Costa (2015), comparing Portugal and the UK.

7. The present paper is the result of support from the Portuguese Science and Technology Foundation under the Strategic Project (UID/SOC/50012/2013). This project has received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation program (grant agreement N.° [648608]), within the project “EXCHANGE – Forensic geneticists and the transnational exchange of DNA data in the EU: Engaging science with social control, citizenship and democracy.” Helena Machado is an FCT investigator funded by the Portuguese Foundation for Science and Technology within the grant IF/00829/2013.

8. Although the narratives of police forces often employ colloquial terminology (break-in, robbery and so on) the case was typified as a theft.

9. All names are fictitious in order to protect the identity of those involved.