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This paper will address various issues in criminal justice and criminology research. It will address the importance of ethics and confidentiality to research and the legal issues that can arise when one conducts such research such as revealing one’s work to authorities in a criminal investigation. Several case examples will be brought up in which researchers were subject to prosecution upon the discovery of their research involving legal cases. Topics such as covert research and its importance to society will be addressed as well.
Ethics are a very important aspect of criminal justice research.
Ethics are critical to ensure that research is done properly, humanely, and effectively. According to several pronounced researchers, one of the main aspects of ethics is to ensure confidentiality. In order to gain more knowledge on the aspects of the different areas of social sciences, research is critical in contracting this information. Research is also critical to the advancement of life and society as well as more specific areas such as criminal justice and criminology.
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A number of researchers have found themselves spending jail time or threatened with legal prosecution unless they reveal the sources of their research. Confidentiality is as essential to research as ethics are. In order for subjects to provide researchers with the information they need, they must have a sense of safety that this information will remain relatively private, especially in the field of criminology and criminal justice research.
There are several implications that ensure the rights of research subjects are not violated, such as the Belmont Report.
Although distinctions were made between biomedical and social science research, the same restrictions on medical research in the Belmont Report were still used in overseeing social science research until the development of Institutional Review Boards (Hagan, 2017).
The National Institution of Justice also protects individuals by preventing the use of any research or statistical information that may identify them. In addition to this, the U.S. Department of Justice adopted Human Subjects policies akin to those established by the U.S. Department of Health and Human Services. Basically, these policies remove most NIJ-supported research from Institutional Review Board’s stipulations (Hagan, 2017).
While there are a number of statutes and laws protecting the rights of the participants there are few protecting the rights of the researcher. Ethics tie into confidentiality. In order for a researcher to remain ethical to his/her subjects, their research must remain confidential in that the identity if subjects are not compromised. Confidentiality is critical in producing helpful research. Lowman and Palys state that, “the primary role of research ethics is to ensure that subjects are not harmed by their participation in research. When subjects divulge information about crime or criminal justice processes, it is our ethical responsibility to ensure that the information cannot be used against them.” (Lowman and Palys, 2003). Over the years there have been several cases where researchers have found themselves in legal mess trying to protect the confidentiality of their informants. While there are laws that protect researchers from being forced to reveal their sources in a court of law, shield laws, these laws do not protect everyone (Hagan, 2017).
The 1973 Amendment to the Omnibus Crime Control and Safe Streets act states that, “… no officer or employee of the Federal Government shall use or reveal any research or statistical information furnished under this title…for any purpose other than the purpose for which it was obtained in accordance with the title.”(Hagan, 2017). However, these rules do not apply to the private researcher. Unlike priests or doctors, an independent criminal justice researcher has no legally recognized privilege of confidentiality. This makes private researchers subject to court subpoena and puts them in a position to decide if they are willing to go to jail rather than violate confidentiality. To quote Soloway and Waters’ warning, “ Let us not bask too very long in this unaccustomed legal comfort, for, while such laws seem to relieve us of responsibility prior to governmental investigation, they pertain very little after such an investigation has begun,” (Hagan,2017).
The subjects of ethics and confidentiality usually arise more prominently in cases of covert research. Covert research, as defined by Calvey, is “research situations where the real identity of the observer as a social researcher remains secret and entirely unknown to those with whom he or she is in contact. The investigator purports to be a complete participant and is in fact something else.” Covert research is often frowned upon by ethics boards and fellow researchers alike because of the lack of consent from the observed. However, research governance needs to be realistically relaxed for in-depth research into an array of criminological topics. Some topics like the study of crowd behavior and public disorder, which are standard topics for criminology, are often difficult to achieve in standard overt ways and require types of flexible covert ‘bystander’ approach. In such opportunistic circumstances, gaining informed consent is impractical and hence rather naive to formally adhere to. (Calvey, 2013).
There are several cases in which private researchers have spent time in jail and faced criminal charges for not revealing information critical to their research. In 1990, Rik Scarce was a Ph.D. sociology student at Washington State University and published the book, Eco-Warriors: Understanding the Radical Environmental Movement. When one of the groups Scarce was researching conducted a raid on the college campus, Scarce was subpoenaed to appear before a grand jury. He was jailed for 157 days for contempt of court when he refused to violate the ASA Code of Ethics and reveal names of the suspected raiders. (Hagan, 2017.)
The ASA Code of Ethics was written in 1971 by the American Sociological Association to regulate conduct of sociologists conducting research. There have been several renditions of the Code. The Code does not encourage researchers to try to be above the law or to break the law, it simply encourages them to inform participants of the risks of participating in their project and that if worst comes to word, their confidentiality could be compromised. One could argue that the 1989 ASA Code of Ethics went further than the 1997 Code by saying that ‘‘Confidential information provided by research participants must be treated as such by sociologists, even when this information enjoys no protection or privilege and legal force is applied.’’ The 1997 Code obliges researchers to be fully informed about all laws and rules that may limit or alter guarantees of confidentiality and to inform subjects about any limitations to their confidentiality guarantee. Also, the Code permits violation of confidentiality should researchers learn of threats to the life or health of research participants or others. (Long, Dorn, 1982).
A central concern of researchers writing on ethical issues of criminological research appears to be the concern for insuring confidentiality of research participation, particularly in light of the possibility of subpoena. The incident that spurred this debate involves a graduate student at Simon Fraser University named Russell Ogden who was subpoenaed to turn over his research materials on assisted suicide to a Vancouver coroner. After a lengthy legal debate, the coroner finally agreed that the costs of disrupting the researcher-participant privilege did not outweigh the benefits of knowing the privileged information. A lengthy legal battle was fought between Ogden and Simon Fraser University regarding Ogden’s contention that SFU failed to support his refusal to turn over the subpoenaed material. SFU was subsequently not held liable for Ogden’s legal fees, but the judge presiding over the case did suggest that SFU had acted inappropriately in failing to support Ogden (Fogel, 2007).
Researchers John Lowman and Ted Palys state that, “we believe that researchers should assist the courts in their search for truth as long as they do not expose research participants to harm in the process.” This brings us to the point that although private researchers are not protected by shield laws, the confidentiality of research participants should always remain just that, confidential. If it is necessary for courts to subpoena research information, participants should remain in confidence in order for useful research to continue. One way to attempt to protect research participants is the use of pseudonym’s which are aliases to protect one’s identity. However, there have been several cases where pseudonyms did not work, such as Malinowski’s book in Trobriand Islanders which the Islanders actually knew about. Lowman and Payls identify four scenarios where ethics come into conflict with the law:
Another researcher who found themselves in legal turmoil, Richard Leo, was investigating interrogation processes at a police station. Leo’s research notes were subpoenaed by a suspect’s attorney. In his notes, he had witnessed the interrogation of a suspect who was read his Miranda rights, then told by a detective that if would be in his best interest that he speak to them because when his public defender arrived they could no longer help him. The suspect confessed to murder but the confession was thrown out by the judge, ruling that the suspect’s Miranda rights were violated when the detective suggested than he was better off talking to the police than his attorney. This cost Leo his job and his research as well. His entire project was ruined due to the fact that the detectives no longer trusted to work with him or around them. Leo, like Scarce, believes that there should be more protection for scholarly research (Leo, 1995.) Scarce suggested in one of his writings that “...social science requires information gathered from large numbers of people, not from single, knowledgeable individuals. To protect our sources, we scholars are ethically bound — and, under federal "human-subjects laws," usually legally bound — to conceal their identities.” (Scarce, 2005). Scarce also points out that as social scientists, they expose themselves to an array of police and prosecutorial treatment such as interrogations, grand-jury appearances and legal intimidation. They do so in hopes of resolving society’s problems, but it has proven difficult due to such legal aspects. (Scarce, 2005.) Richard Leo concurs with Scarce that we are in need of federal legislation that will protect the rights of scholarly researchers to confidential communications with subjects. Such legislation will ensure the abilities of said researchers to protect the role of society’s factfinders. (Leo, 1995.)
In addition to Leo and Scarce, another well known case of ethics versus law is the case of researcher Mario Brajuha who was a sociology graduate. He was subpoenaed by a grand jury investigating a fire at a restaurant where Brajuha was working and observing. He had been observing the restaurant for ten months prior to the fire and had collected notes for his dissertation. While Brajuha refused to submit his notes, eventually he had to but was able to edit the notes making them anonymous. This particular case prompted the Weinstein Decision, which states that, “Serious scholars cannot be required to turn over field notes in a grand jury investigation when the government fails to establish a substantial need for them.” (Hagan, 2017.)
When researchers are pressed with the question, “What do we do when we are asked to reveal our sources of information?,” Marvin Wolfgang offers this approach, “Our position is clear: we would not honor the request. We would make every effort, short of using aggressive force, to prevent the files, from being examined or taken from the Center's premises. We would, if necessary, enter into litigation to protect the confidentiality of the records. There is no United States Supreme Court case affirming or rejecting this position.” Wolfgang continues by offering different methods to endure the anonymity of participants, such as replacing names with specific identification numbers. This is similar to the use of pseudonyms previously discussed earlier in this paper.
Wolfgang also offers several answers to questions raised over the years by researchers concerned about whether they are legally responsible to report criminal activity that occurs during their research. When asked, “Are members of a research team accessories after the fact?” Wolfgang responds, “The traditional research response to the charge of being an accessory is that he or she is a neutral, disinterested recipient of data collected only for scientific research purposes. The purpose for obtaining the information is to aid the scholarly enterprise and to provide guidance for a rational social policy. Research is not designed to treat, help, or harm individual subjects, and the social scientist is not a representative of any branch of government with an obligation to execute certain police or judicial duties.”
Wolfgang also addresses the question, “Are members of the research staff obstructing justice when they refuse to give confidential information to authorities concerning their research?”
He responded by saying, “ Courts generally construe obstruction of justice more narrowly and require obstruction of proceedings actually pending, with specific intent to do so. Unwillingness to report reflects an uncompromising respect for the conditions of scientific research that explicitly provide for confidentiality. Moreover, the research neither helps nor hinders the police and prosecutory functions of society for were it not for the scientist's inquiry, the information would not be available to authorities anyway. (Wolfgang, 1981.)
Palys and Lowman suggest two strategies for criminological researchers to use in dealing with the possibility of subpoena including: a) methodological precautions, and b) legal strategy. The use of a methodological strategy entails confusing one’s research materials in such a way that even if materials are subpoenaed they will be meaningless as no participants could be identified. (Lowman, Palys, 2003.)
In conclusion, the various types of research methods used in criminology and criminal justice research constitute a variety of ethical and legal concerns. Ethics being of utmost importance, confidentiality running in close second, and finally, accuracy of research. In order for research to be viable, researchers must closely follow ethical guidelines set forth by Institutional Review Boards, and other associations. A major part of ethics is promising the participant’s confidentiality. However, when one researches aspects of criminology and criminal justice this often involves the study of criminals. This can put the researcher in between a rock and a hard place, per say. I addressed several cases where researchers were threatened by authorities to give up months or years of their work in order to advance in criminal proceedings, and in some of those cases, the authorities won and the researchers not only lost their work but their credibility as well. Renowned researchers such as Palys and Lowman, Marvin Wolfgang, and Richard Leo offer future researchers advice on how to edit their work in order to keep authorities from subpoenaing them to giving up their writings.
There are arguments that have been raised about different types of research, such as covert research, that claim that advising the participants of their participation in a study would actively compromise the results of the study, thus ruining the research. Ethical situations in this type of research are touch and go. In order to obtain information needed about crime and criminals and behavior of such, covertness is needed to get this information and it be correct and unaffected by the participants knowing they are being observed, as this can cause them to act differently and cause the research to be compromised.
Why Confidentiality And Ethics Is Important in Investigating The Legal Concerns Of The Criminal Justice And Criminology. (2024, Feb 19). Retrieved from https://studymoose.com/why-confidentiality-and-ethics-is-important-in-investigating-the-legal-concerns-of-the-criminal-justice-and-criminology-essay
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