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Ethics and the Practice
of Forensic Science
I N T E R N AT I O N A L F O R E N S I C S C I E N C E
A N D I N V E S T I G AT I O N S E R I E S
Series Editor: Max Houck
Forensic Examination of Hair
James R. Robertson
ISBN 9780748405671 • 1999
Forensic Examination of Fibres, 2nd edition
J. Robertson and M. Grieve
ISBN 9780748408160 • 1999
Forensic Examination of Glass and Paint:
Analysis and Interpretation
B. Caddy
ISBN 9780748405794 • 2001
Forensic Speaker Identification
P. Rose
ISBN 9780415271827 • 2002
Bitemark Evidence
B. J. Dorion
ISBN 9780824754143 • 2004
The Practice of Crime Scene Investigation
J. Horswell
ISBN 9780748406098 • 2004
Fire Investigation
N. Nic Daéid
ISBN 9780415248914 • 2004
Forensic Computer Crime Investigation
Thomas A. Johnson
ISBN 9780824724351 • 2005
Analytical and Practical Aspects of
Drug Testing in Hair
Pascal Kintz
ISBN 9780849364501 • 2006
Nonhuman DNA Typing: Theory and
Casework Applications
Heather M. Coyle
ISBN 9780824725938 • 2007
Chemical Analysis of Firearms,
Ammunition, and Gunshot Residue
James Smyth Wallace
ISBN 9781420069662 • 2008
Forensic Science in Wildlife Investigations
Adrian Linacre
ISBN 9780849304101 • 2009
Scientific Method: Applications in Failure
Investigation and Forensic Science
Randall K. Noon
ISBN 9781420092806 • 2009
Forensic Epidemiology
Steven A. Koehler and Peggy A. Brown
ISBN 9781420063271 • 2009
Ethics and the Practice of Forensic Science
Robin T. Bowen
ISBN 9781420088939 • 2009
Introduction to Data Analysis with R for
Forensic Scientists
James Michael Curran
ISBN: 9781420088267 • 2010
Forensic Investigation of Explosions,
Second Edition
A. Beveridge
ISBN 9781420087253 • 2011
Firearms, the Law, and Forensic Ballistics,
Third Edition
Tom Warlow
ISBN 9781439818275 • 2011
The Neuroscience of Handwriting:
Applications for Forensic Document
Examination
Michael P. Caligiuri and Linton A. Mohammed
ISBN 9781439871409 • 2012
Forensic Metrology: Scientific Measurement
and Inference for Lawyers, Judges, and
Criminalists
Ted Vosk and Ashley F. Emery
ISBN 9781439826195 • 2015
Fingerprints and Other Ridge Skin
Impressions, Second Edition
C. Champod, C. Lennard, P. Margot,
and M. Stoilovic
ISBN 9781498728935 • 2016
Ethics and the Practice of Forensic
Science, Second Edition
Robin T. Bowen
ISBN 9781498777131 • 2017
Ethics and the Practice
of Forensic Science
Second Edition

Robin T. Bowen
CRC Press
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Library of Congress Cataloging-in-Publication Data

Names: Bowen, Robin T., author.

Title: Ethics and the practice of forensic science / by Robin T. Bowen.
Description: Second Edition. | New York : CRC Press, [2017] | Series:
International forensic science & investigation | Revised edition of the
author’s Ethics and the practice of forensic science, c2010. | Includes
bibliographical references and index.
Identifiers: LCCN 2017014577| ISBN 9781498777131 (hardback : alk. paper) |
ISBN 9781315152387 (ebook)
Subjects: LCSH: Forensic sciences--Moral and ethical aspects--United States.
| Forensic scientists--Professional ethics--United States. | Forensic
sciences--Moral and ethical aspects. | Forensic scientists--Professional
ethics.
Classification: LCC HV8073 .B649 2017 | DDC 174/.936325--dc22
LC record available at https://lccn.loc.gov/2017014577

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For my daddy; the humor and sarcasm have come
in handy during my research and life!
Miss you every day….
Contents

Preface xiii
Acknowledgments xv
Author xvii

1 What Is Ethics? 1
Introduction 1
Ethical Theories 2
The Study of Ethics 3
Utilitarianism: The Greater Good 4
Deontological Ethics: Obligation and Intention 6
Comparing Approaches for Forensic Science 8
Ethical Decision-Making 9
Framework for Ethical Decisions 12
Rule 1: Inherent Good Surpasses Noninherent Good 13
Rule 2: Noninherent Evil Surpasses Inherent Evil 13
Rule 3: When Selecting between Levels of Good or Evil,
Select the Highest Good or the Lowest Evil 14
Result of Decisions 14
Conclusion 17
References 17

2 An Ethical Approach to Forensic Professionalism 19

Introduction 19
Education 20
Competence 23
Professions and Professionalism 25
Awareness 26
National Academy of Sciences Report 27
President’s Council of Advisors on Science and Technology 29
Conclusion 29
References 30

vii
viii Contents

3 Ethics in Forensic Science 31

Introduction 31
Crime Scene 32
Laboratory 33
Role of the Scientific Expert Witness 36
Qualification 39
Parameters 41
Misconduct 43
Conclusion 47
References 48

4 The Ethics of the Criminal Justice Culture 49

Introduction 49
Recruitment 51
Culture 51
Ethics of Criminal Justice 54
Ethics Training 56
Unethical Behavior 57
Sources of Pressure for the Forensic Scientist 63
Conclusion 64
References 65

5 Changing the “Game” of Policing: Ethics

and Efficacy in Police Reform and Forensic
Investigations 67
The Policing Field and the Disposition It Creates 69
Consequences of the Policing Game 70
Retaliatory Violence against Police 74
“Doing Right” in Policing 75
Identifying the Summum Bonum of Policing: Strong
Neighborhoods 76
“Doing Right” by Neighborhood Type: A Situational Ethics
toward the Greatest Good 80
Forensic Investigations and Building Strong Neighborhoods 81
Conclusion 83
Author Biographies 83
References 84
Contents ix

6 Ethics in the Courtroom: The Scientist’s

Perspective 87
Introduction 87
Role of Attorneys 89
Attorney–Expert Relationship 90
Admissibility of Scientific Evidence 93
The Frye Case 93
The Daubert Case 95
Misconduct 96
Examples of Misconduct 99
Duke Lacrosse Case, 2006 99
Joseph Buffy, 2016 101
Conclusion 102
References 102

7 Ethics in Science and Research 105

Introduction 105
Science, Technology, and Society 106
Research and Publication 108
Ethics in Science and Research 112
Uncertainty 114
Measurement Uncertainty 114
Goodness of Measurements 117
Misconduct 118
Conclusion 120
Author Biography 121
References 121

8 Unethical Behavior: The Fork in the Road 123

Introduction 123
Unethical Behavior 126
Motivation 131
Justification 134
Consequences 135
Whistle-Blowing 137
Conclusion 141
References 141
x Contents

9 Good Examples of Bad Behavior 143

O. J. Simpson Case 143
Annie Dookhan 145
St. Paul Crime Laboratory 146
Case Studies 147
Competency Issues 147
Austin Police Department Crime Laboratory 147
Personal Gain 148
Oregon State Police Crime Laboratory 148
Abuse of Power 148
Massachusetts State Crime Laboratory (Amherst) 148
Florida Department of Law Enforcement 149
Wrongful Convictions 149
Validity of Bite Mark Evidence 149
Overstatement of Hair Evidence 150
Fabrication 150
New Jersey State Police Office of Forensic Science 150
Advocacy 151
Colorado Department of Public Health and
Environment Laboratory 151
Notorious Examples of Misconduct That Every Forensic
Scientist Should Know 151
Fred Zain 151
Michael West 152
Kathleen Lundy 152
Joyce Gilcrist 152
Houston Police Department Crime Laboratory 153
Sandra Anderson 153
Making a Murderer 153
Conclusion 154
References 154

10 Codes of Ethics 155

Introduction 155
The National Commission on Forensic Science and the
Organization of Scientific Area Committees 157
Developing Codes of Ethics 157
Purpose 159
Familiarity with Codes of Ethics 160
Survey of Forensic Science Ethics Documents 162
Contents xi

The American Academy of Forensic Sciences 168

Article II. Code of Ethics and Conduct 168
Section 1—The Code of Ethics and Conduct 168
Section 2—Member and Affiliate Liability 169
Section 3—Sanctions 169
The American Board of Criminalistics 170
Rules of Professional Conduct 170
American Society of Crime Laboratory Directors 172
The International Association for Identification 174
Codes of Ethics and Standards of Professional Conduct 174
Professionalism 174
Competency and Proficiency 175
Clear Communication 175
Organizational Responsibility 176
Conclusion 176
References 176

Appendix A: Additional U.S. Forensic Science

Professional Codes of Ethics 179
Appendix B: U.S. Law Enforcement Professional
Codes of Ethics 211
Appendix C: International Forensic Science
Professional Codes of Ethics 219
Appendix D: When Ethics Are Used to Retaliate 235
Bibliography 239
Index 245
Preface

What are ethics? How do ethics differ from morals? What ethical concerns
are inherent in forensic science? Everyone learns basic ethics from the time
he or she is born, so why is it necessary to explore the topic? Who decides
what is ethical? Who regulates against those who have been unethical? These
are just some of the questions posed when discussing the topic of ethics in
regard to forensic science. Approaching the topic of ethics is quite daunting
for a variety of reasons: It is philosophical in nature, there is not always a
clear distinction between right and wrong, it is closely related to personal
beliefs, and it is viewed as noncritical training. Personal character may influ-
ence ethical decisions, so to fully explore the subject of ethics, people should
possess open-mindedness and a willingness to discuss their points of view,
as well as to acknowledge points that differ from their own. Answers to the
questions posed previously and many more will be presented in a manner
that encourages contemplation, discussion, and reflection. The reader should
consider the information provided and relate it to his or her everyday life as
the information will have less of a focus on right versus wrong and more of a
focus on what is better or worse within specific circumstances.
Forensic science is a profession of scientists whose work answers ques-
tions for the law through reports and testimony (Houck and Siegel, 2006).
It is composed of a variety of disciplines that work with the legal system.
Common statements made by the forensic science community in regard to
ethics include the following:

• Forensic scientists are ethical by nature.

• It is not possible to teach a person ethics; people are ethical or they
are not.
• The topic of ethics is boring and/or too philosophical.
• A course, lecture, or text is not going to make an unethical person
ethical.
• Explain what is right and wrong for given situations so that ethical
dilemmas are not an issue.

Although such points have some validity, they do not provide a clear picture
of the purpose in discussing ethics as it relates to forensic science. Before
delving into this text, consider the purpose for reading it: What are you

xiii
xiv Preface

hoping to learn? What professional problems should be addressed? Why is

the topic important to individuals, agencies, organizations, and/or the foren-
sic science profession?
Though everyone would like to believe that all forensic scientists are
ethical in nature, it is simply not the case. Circumstances coupled with
pressure, motivation, and opportunity can cause anyone to cross the pro-
verbial ethical line. Throughout my years of studying ethics as it relates to
forensic science, the statement, “You cannot teach someone ethics,” has been
a recurring theme. The point of publications that explore the topic of ethics
is not necessarily to teach ethics as much as to create awareness of the subject,
including professional risks. Knowledge, discussion, and analysis are impor-
tant to avoid ethical dilemmas in the future, while learning from mistakes
colleagues have made in the past. Information also provides people with the
tools necessary to refocus after misconduct has affected the workplace or
the profession. Finally, although it would be much easier to have a rulebook
containing do’s and don’ts for every situation a professional may encounter,
it is unrealistic. Variables, such as the people involved, the agencies and their
affiliations, common professional pressures, the circumstances of the situ-
ations, and the consequences and effect on innocent people, create unique
situations. Due to these variables, it is impossible to have a set of rules that
comprise any and all situations.
Ethics is an extremely important topic in professional cultures such as
law, business, medicine, science, and technology. A culture is a large group
of people with shared beliefs, laws, morals, standards, and characteristics,
and forensic science overlaps with other professional cultures. The common
view shared within a culture influences behavior, communication methods,
and values. Values describe a belief that a specific method of conduct is per-
sonally or socially preferred. Components of professional cultures include
managerial styles, traditions, loyalties, hierarchy, legacy, and decision-
making rules. It is important to explore how cultures communicate with,
and about, each other to gain a deeper understanding. Discussing ethics
among cultures begins with recognizing common interests or goals and
valuing diversity. To work with other professional cultures, it is imperative
to understand their values, to maintain positive cooperation and conflict
resolution, to determine potential diversity within the culture, to listen
carefully, and to show respect for differences. Most professions have had
examples of misconduct. Throughout this book, we will explore the intrica-
cies of ethics as it relates to the forensic science profession. By the end of this
book, the reader will have a greater appreciation of the professional culture
of forensic science as well as the professional cultures that work with, and
against, the rules of the forensic science profession, thus creating pressures
that may lead to unethical behavior.
Acknowledgments

Studying ethics is a daunting task because there are no right answers, just a
series of questions that could be answered in many ways, depending on the
circumstances. The gray area is what makes ethics fun and frustrating at
the same time! I have been lucky to have the opportunity to research, study,
and teach about how ethics is at the core of the forensic science profession
over the past 10 years. I have found out firsthand how an individual with a
small amount of power can change the course of a person’s life and career.
Despite the bad apples and the tough situations, the vast majority of forensic
scientists, law enforcement officers, lawyers, and related professionals are
trying their best to make a positive impact on society while maintaining the
utmost integrity.
I consider myself lucky to be doing what I love while surrounded by
amazing people: To my parents for believing in me and always being on my
side, no matter what. To my husband for putting up with my goals, lists, and
constant desire to do better and be better, and all of the challenges that go
along with those things! One more huge goal and then I promise I will try to
be more boring. To James, mommy is sorry that this book has taken so long
but it is done and now we can schedule some playdates with your friends!
To Evelyn, thank you for giving me the writing break that I needed so I could
refocus and finish. I could not wait to meet you and see what the future has
in store for you and your brother; I hope that mommy makes you both proud.
To Ace and Julius, thank you for listening and providing constant hugs. To
Bernie, Gina, Emily, and Isabelle—I love you! To Brigid, Christie, Lindsey,
Liz, Marcie, Midge, and Samantha—thank you for being my A-team and
always keeping it real; your friendships mean the world to me and I would
not be who I am without each of you. To my students who inspire me to keep
growing and to be the change that I want to see. I am proud of you and hope
that you continue to challenge yourselves to look at the other side of the situ-
ation. Finally, to Suzanne, Jim, and Josh—thank you for contributing your
expertise in this edition.

xv
Author

Robin T. Bowen has an undergraduate degree in forensic and investigative

sciences, a graduate degree in secondary science education, and is currently
pursuing her doctorate in instructional design and technology from West
Virginia University, Morgantown, West Virginia. She also teaches a number
of courses at the undergraduate level and is the minor coordinator in the
department of forensic and investigative sciences at West Virginia University.
Bowen was formerly the assistant director for Forensic and Investigative
Sciences Outreach, a program that developed research, scientific resources,
and professional training for forensic scientists and related professionals.
Her primary responsibilities included coordination of continuing education
programs, management of research projects, and correspondence of progress
to the National Institute of Justice. Ms. Bowen has participated as an advi-
sory member of the Outreach and Communication Interagency Working
Group under the National Science and Technology Council Subcommittee
on Forensic Science. She is a member of the Editorial Advisory Board for
the revised edition of Encyclopedia of Forensic Sciences and was the primary
developer of the Forensic Educational Alliance, an initiative to offer a variety
of forensic science continuing education online courses.

xvii
What Is Ethics?
1
Introduction

Ethics is a branch of philosophy dealing with what is morally right and wrong,
good and bad (ethic in Merriam-Webster). Right and wrong refers to behav-
iors or conduct, whereas good and bad refers to outcomes and consequences
of behaviors. The discussion of ethics in forensic science explores a profession
that shares moral values or qualities within its own community and in rela-
tion to coexisting professions. Ethics can be viewed as the general study of
the ideals regarding human behavior and the guiding principles. It accounts
for individual morals, a group dynamic, and guidance of groups, while pro-
tecting rights of those involved in a particular group, agency, or profession.
Plato stated that people typically think of ethics as practical knowledge, not
theoretical knowledge; but in reality, it is both. Ethics are not meant to dic-
tate actions but to offer the tools and direction for dealing with situations.
The goal of ethics is to protect the rights and needs of professions (or groups)
when situations are not just black and white. Ethics are standards of conduct
that prescribe behavior but do not describe actual behavior (Resnik, 1998).
If ethics deal with right and wrong in terms of ideals, then what constitutes
morals, and how do these differ from ethics?
Morality is the operational side of ethics that provides a basis of right and
wrong for application of ethics. Ethics are applicable to situations and are
practiced, whereas morals are known. Morals tend to be specific and generally
agreed the standards of conduct in society. Though people tend to confuse
ethics and morals, morality and integrity are more similar and may be used
interchangeably when referring to personal actions. Morals may be thought
of as a guide to leading a moral life, or conducting oneself by the golden
rule with actions in the spirit of everybody wins. Honesty and integrity are
society’s most general moral values that apply to everyone (right or wrong).
Just because people are honest and have morals does not mean that they will
not face ethical issues at some point in their lives. Learning about ethics as it
relates to a profession will serve as a guide to overcome ethical dilemmas. The
learning process involves constant questioning and discussion of ethical val-
ues as the profession evolves. Ethical principles, such as obligation, fairness,
mercy, and duty, are validated by consistency, relevant factors, and suitability
for human experience.

1
2 Ethics and the Practice of Forensic Science

Moral standards may be universal even if moral judgment is individualized

and influenced by society. Aristotle’s virtue theory’s perspective is that the
goal of ethics is the development of moral goodness. A person must por-
tray character traits that fit social and moral values while having the desire
to act morally. A person who seeks to make practical moral judgments will
strive for moderation in lieu of extremes. Although moderation depends on
the individual, appropriate actions are dictated through reason. According
to Socrates, “Virtue is knowledge and knowledge is virtue.” In other words,
if a person knows what is right, he or she will act on what is right. This state-
ment also implies that wrongdoing is involuntary and based on unawareness,
which illustrates the reason for some examples of unethical behavior that are
examined in Chapter 9. So how does a person know what actions are right?
A study conducted by James Rest and his colleagues determined that ethi-
cal behavior is a result of four processes: (1) moral sensitivity or the ability
to interpret situations, recognize the ethical issue, and understand conse-
quences; (2) moral judgment or the ability to decide which act is morally jus-
tified; (3) moral motivation or the commitment to doing what is ethical, using
ethical standards, and taking responsibility for consequences; and (4) moral
character or the courage, determination, and confidence to execute ethical
behavior (Johannesen et al., 2008). Before moving forward, it is important to
first look at the evolution of ethics as a branch of philosophy and the various
schools of thought on the topic.

Ethical Theories

Ethics is the analysis of fundamental moral concepts of right and wrong.

Ethical theories guide people through moral problem solving. Theories are
hypotheses that explain a topic or problem and are evaluated based on their
rationality, consistency, and usefulness to the issue in question (Macrina,
2000). Ethical theories should be general, supportive, abstract, noncontra-
dicting, internally consistent, and in agreement with moral intuition. The
main features of ethical theories reduce problems by providing general
principles that are relative to a variety of issues, provide a checks and bal-
ances system for moral principles based on consistency, and expand areas of
knowledge (in regard to other disciplines).
The subject of ethics is subdivided into the following theories: normative
ethics, metaethics, and applied ethics. Normative ethics is the study of moral
standards, principles, concepts, values, and theories, and seeks to determine
what is right or wrong to justify the standards for behavior. This type of the-
ory is the foundation for creating moral principles of conduct for decision-
making. Metaethics is the study of the nature of moral standards, principles,
values, and theories. It explores the meanings of moral concepts and analyzes
What Is Ethics? 3

the moral reasoning. Applied ethics is the study of ethical dilemmas, choices,
and standards of application in particular contexts, including occupations,
professions, and situations (Resnik, 1998). They are the investigations of
moral conduct based on facts and are the focus when discussing the ethics of
forensic science.

The Study of Ethics

The goals of studying ethics include providing awareness for professionals

to differentiate between appearance and reality, fostering critical thinking
to encourage open discussion, preventing future issues, nurturing personal
responsibility (the ability for individuals to determine how their actions sup-
port broader goals and fit in the big picture), and providing familiarity with
the professional system in regard to checks and balances and cultural norms.
In striving for these goals, the manner in which one learns ethics should
be considered. The concept of learning ethics should be general in nature,
conducted in a safe environment that allows for honest discussion, incorpo-
rates the use of questioning, shapes individuals’ thoughts about proper con-
duct, helps avoid future issues, involves open communication, and allows for
varied perspectives from which individuals may challenge their commonly
held beliefs and/or approaches to situations. Giving care and attention to how
ethical concepts are presented to people will allow a greater success rate for
achieving the various goals of studying ethics.
Some important steps should be taken when studying ethics. The first step
encourages awareness and receptiveness to moral and ethical issues. The sec-
ond step supports the development of critical thinking and analytical skills.
During the second step, one learns to better distinguish the concepts and to
prevent bad solutions. A bad solution may cause more problems if the right
questions are not asked from the beginning. An example of a bad solution
might be, “Isabelle forgot to sign the evidence log. I know she was the last exam-
iner to have the evidence, so I will sign her name since she probably forgot.”
This example shows a bad solution that began with good intentions. The solu-
tion, although good for the present time, could create additional problems in
the future. In this example, additional problems will occur when the origi-
nal examiner is questioned regarding the evidence log in court. The critical
thinking step provides the necessary skills for people to learn how to convey
information to colleagues or supervisors to assure that the proper procedures
are taken to correct mistakes. The third step in studying ethics occurs when
people become more personally responsible. Using the first two steps and
increasing the ability to respond to situations will help people achieve personal
responsibility. Gaining a sense of personal responsibility will create a sense of
empowerment for people and will lead to more productive searches for truth.
4 Ethics and the Practice of Forensic Science

The final step is to recognize how professional cultures operate. In this case,
forensic science as a profession seeks to use scientific evidence to provide infor-
mation related to crimes. In striving to meet the goal of the profession, the trust
given to forensic scientists may create the potential for corruption and abuse of
power. As Doug Lucas (2007) states, “We are holders of a public trust because
a portion of the vital affairs of other people has been placed into our hands by
virtue of the role of our laboratories in the criminal justice system.” To assure
ethical behavior, the professionals in the field must undergo a system of checks
and balances. Cumulatively, the steps taken when studying ethics are applied
in a certain context.
To understand ethics, it is important to have an awareness of the vary-
ing contexts in which ethics is studied (Resnik, 1998). The first, personal con-
text, is the objective testing and questioning of personal values and ethics.
It is a person’s individual sense of ethics and justice. There are five elements
to personal ethics: (1) discretion, or the ability to make choices in situations
that have no clear rules; (2) duty, or deciding between competing obligations;
(3) honesty; (4) loyalty; and (5) respect for others (Braswell et al., 2008). People
may also study ethics in a social context. The social context involves how peo-
ple relate to others based on the given circumstances. In this context, under-
standing a person’s history and environment before judging his or her actions
is essential. Criminal justice, or field specific, is a process-specific context used
to study ethics as it relates to law and enforcement procedures, or in this case,
forensic science. This field-specific context combines the aspects of social and
personal perspectives. The criminal justice system must balance peace and
order, liberty and security, and fulfillment and happiness to adequately merge
social and personal contexts. If something is illegal, does it mean that it is ethi-
cal? The law is what people must do, whereas ethics are what people should
do (Johannesen et al., 2008), and morals are the underlying values that guide
actions and the process of determining ethics and laws. Some examples of
laws that are unethical include slavery, prohibition, religious rules concern-
ing customary dress, and minority citizens’ right to vote. Another example
is protestors of the Vietnam War; though illegal, people felt that their actions
were justified ethically. Forensic ethics is studied by understanding personal,
social, and criminal justice contexts. Once contexts of ethics are better under-
stood, approaches to ethical theories may be explored.

Utilitarianism: The Greater Good

The utilitarian approach is also known as the consequentialist or teleological

ethical theory. The basic principle is that human beings judge the morality of
actions in terms of the consequences or results of those actions. Moral acts
elicit good consequences—those that create happiness and are justifiable.
What Is Ethics? 5

Immoral acts elicit bad consequences—those that induce pain and suffering
and are unjustifiable. In this approach, actions may be moral or immoral
based on the capacity to achieve the greatest good for the greatest number
of people. For example, an increase in funding for crime laboratories is good
because it helps the agencies, the employees, and society. In contrast, an
increase in funding specifically for a single discipline within the laboratory
would not impact as many people. In this case, then, the former is considered
the moral act.
John Stuart Mill (1806–1873) and Jeremy Bentham (1748–1832) developed
the utilitarian outcome-based approach in the eighteenth and nineteenth cen-
turies. Bentham focused on the concept of pleasure versus pain, whereas Mill
studied happiness versus unhappiness. Although Mill contributed to devel-
oping the approach, he disagreed with Bentham as he was more concerned
with the quality of happiness rather than the quantity. Pleasure and pain are
determined by considering the duration, intensity, long-term consequences,
and likelihood of outcomes to all parties influenced by the action. Summing
up all consequences and assessing the outcome assure that individual inter-
ests are considered.
Bentham used normative ethics by seeking which behavior was morally
right or wrong and trying to establish norms for behavior. His goal was to
merge competing views: the nature of man’s ego with societal influence and
goals. He felt that man and society could coexist based on common motiva-
tions he referred to as sanctions: (1) physical sanctions, or the natural sen-
sation of happiness and pain; (2) political sanctions, the legal acts that can
counteract immoral acts; (3) moral sanctions, approval or disapproval from
those around a person; and (4) religious sanctions, the blessing or condemn-
ing by a supreme being, consistent with one’s faith. The weakness of the utili-
tarian theory was that the core principle was vague and did not account for
individual rights. The principle evolved and became known as the greatest
happiness principle, which allowed more needs to be met within a commu-
nity. The new version of the principle focuses on the morality of an action
that creates happiness or the principle of utility (Mill, 1863).
Utility in modern-day professions centers around duty and obligation.
Cases of conflicting duties require that action be taken in a situation if and
only if (1) doing the action (a) treats as few people as possible as mere means
to an end and (b) treats as many people as ends as consistent with treating as
few people as possible as mere means to the ends; and (2) taking the action
in the situation brings about as much overall happiness as consistent with
actually doing the action. These guidelines, presented in Justice, Crime, and
Ethics, will assist a person in circumventing problems of binding and con-
flicting duties. They will also focus attention on what is specifically good or
bad for the greatest amount of people (Braswell, 2008). The whole process has
been described as systemized common sense.
6 Ethics and the Practice of Forensic Science

Deontological Ethics: Obligation and Intention

Immanuel Kant, an eighteenth-century German philosopher, believed that

humans have certain duties regardless of the consequences they evoke. The
deontological approach states that moral actions occur out of obligation
and are judged based on the intention and motivation for the action. Duty
is an expression of free will to do the right thing even if no one is paying
attention. If a person performs his or her duty, the action is considered right
because duties are morally binding obligations. Actions not motivated by
duty are motivated by inclination, self-interest, or impulse. There are two
primary levels of deontological theories. The first level is extreme or incon-
sequential, in which consequences are not considered at all; people believe
that consequences have no relationship to morals (Kant, 1964). An example
of this view is a person’s duty to tell the truth, no matter the potential con-
sequences. A forensic scientist should state the facts and opinions regarding
evidence even if the facts provide support for the opposing counsel’s case.
Another common duty is to help other people. According to the extreme
deontological theory, helping others is good even if the person is helping
to do something wrong. For example, as a fellow crime scene investigator
is swabbing bloodstain evidence, he or she contaminates the sample. In the
spirit of deontological theory, the person’s coworker helps the investigator
by omitting that particular swab from the evidence log. Although this is
helpful to the investigator, it is noncompliant with proper procedure. The
duty of helping is fulfilled without regard to the consequences.
The second level of deontological theory is moderate, in which conse-
quences are applied in addition to other factors; this level is much closer to
consequentialist theory. Kant believed that the consequentialists, those who
follow the Utilitarian approach, are omitting a large part of ethics by neglect-
ing their duty and the intention to do right. Kant (1964) demonstrated his
feeling by stating, “It is impossible to conceive anything at all in the world,
or even out of it, which can be taken as good without qualification, except
good will”. The key to the deontological approach is human intention rather
than consequences of given actions (e.g., “I intended to sign the chain of cus-
tody form before handing it over to the chemistry section”). Moral worth
is based on the intention of the action; if the action taken is for the sake of
duty, it is considered moral under the deontological approach. Suppose a rob-
bery at a local store is called in at the end of a shift, Jim offers to respond to
the scene because he knows this will give him overtime pay, whereas Bernie
offers to respond to the scene because he is familiar with the store’s owners
and wants to help. Although both actions have the same consequence—the
scene is staffed and processed—Kant would argue that there is a moral dif-
ference. Bernie acted out of his sense of duty, whereas Jim was motivated by
What Is Ethics? 7

self-interest. Although neither person did anything wrong, one did not have
the right motivation, which makes the act immoral according to Kant (1964).
Although consequences may be considered in the deontological theory, they
are not as important as intention.
One of the main differences between the deontological approach and
other ethical models is that a person’s ideas do not change from one situa-
tion to another. While holding onto ideas eliminates some of the gray area
that ethical issues often bring, the former relies on all people applying the
same reasoning to all situations. Gray areas occur when there is more than
one right answer or method and people must choose what is most right or
most wrong in that particular situation. Kant was labeled ignorant, and his
approach was highly criticized because of its vast difference from utilitar-
ian views. Kant rejected happiness as a reward for good moral behavior
because he felt that happiness is an ideal and cannot be fully comprehended.
An example for demonstrating this perspective is drug dealers. The dealers
typically have wealth and live in luxury, which one would presume leads
them to happiness. If happiness is a virtue, would the drug dealers be con-
sidered virtuous despite their method of achieving happiness? According
to Kant, instead of thinking, “Will an action make me happy?” the thought
is, “Will the action make me worthy of happiness?” (Souryal, 2003).
The deontological theory is not problem free. The first problem that
may arise is conflicting duties. A duty is anything a human must do; police
officers have a duty to arrest people who drive under the influence; foren-
sic scientists have a duty to state what evidence shows and provide expert
opinions based on evidence; judges have a duty to qualify a subject-matter
expert as an expert witness and to act as the gatekeeper in the courtroom. In
all of these duties, the end result may not produce the greatest good or the
most happiness; however, the duties are required. What if the duties conflict?
For example, if a scientist knows that certain tests need to be completed,
it is his or her duty to do so. What if the scientist’s supervisor states that
the results are needed within the hour? Although the scientist has a duty to
complete all necessary testing, he or she also has a duty to obey the super-
visor. Which duty is more important and will provide the greatest moral
worth? Unfortunately, Kant does not provide guidance as to the hierarchy
of duties. Another problem with the deontological approach occurs when
people begin to make exceptions regarding their own duties. To avoid this
issue, it is essential to keep in mind that people, as individuals, are no dif-
ferent or more important than anyone else. People must respect the lives of
others as much as their own, through fairness and equality, to truly use the
deontological approach for an ethical life.
Moral actions are guided by duty and are based on dutiful principles or
laws. The rules of conduct or laws to which Kant refers are maxims, such
8 Ethics and the Practice of Forensic Science

as “honesty is the best policy” or “innocent until proven guilty.” Maxims

should be universally accepted and commanding so people cannot make up
rules as they go and to ensure consistency in action without exception. There
are two types of maxims: hypothetical and categorical. Hypothetical max-
ims are conditional instructions that stress what ought to be done, such as,
“If I want to get a job in forensic science, then I ought to stay out of trouble.”
Categorical maxims are unconditional orders to state the principles that
need to be done, for example, “Tell the truth.” In comparison, the hypotheti-
cal maxim would state, “If you want to stay out of trouble, tell the truth”
(Souryal, 2014). In the study of ethics, categorical maxims provide a founda-
tion for ethical decision-making.

Comparing Approaches for Forensic Science

The comparison of the utilitarian and deontological approaches of ethics as

they relate to forensic science is better understood when observing a common
topic in the field. Take, for example, the opening of cases by the Innocence
Project.1 From the consequentialist perspective, what are the consequences
of reopening of past cases? Does this act benefit the Innocence Project,
society, or both? Is the Innocence Project using society as a means to an
end? In examining the consequences, it is helpful to consider outcomes. The
potential positive outcomes are freeing individuals who were wrongly con-
victed, supporting guilt, showing the strength of forensic evidence such as
DNA, and giving hope to those who believe they were wrongly convicted.
The potential negative outcomes of the Innocence Project include not hav-
ing the necessary resources, that is, scientists or funding to examine the
current cases, to complete backlog cases, and to rework past cases. Initially,
such negative outcomes may reflect badly on science if people are proven
innocent with the reexamination of evidence, and more people will request
cases be reopened or evidence be retested, which will take a good deal of
time, money, and resources.
Critical Thinking

• In the deontologist’s view, do those heading the Innocence Project

have a duty to reopen past cases?
• How many cases would scientists be required to retest?

1 The Innocence Project assists prisoners who have the potential to be proven innocent by
DNA testing. The group began its work in 1992 by Barry C. Scheck and Peter J. Neufield.
More information can be found at www.innocenceproject.org.
What Is Ethics? 9

• Is the Innocence Project serving the society by showing potential

flaws in science and the judicial system?
• Based on duty, what legitimate restraints should the society impose
on the Innocence Project cases?

When considering means–end relationships, with either approach, it is

useful to answer questions that assist in determining the degree of ethical
issues involved. A means–end relationship is best explained by the relation-
ship between one’s methods and one’s results. As paraphrased from Ethics in
Human Communication (Johannesen et al., 2008), here are some questions to
determine the level of ethics in any means–end relationship:

1. Are the means actually unethical or just unpopular, unwise, or

ineffective?
2. Is the end truly good, or does it simply seem so because we want it?
3. Is it possible that the ethically bad means will actually produce a
good end?
4. Is the same end achievable using more ethical means?
5. Is the good end much better than the potential bad effects of the
means used to attain it?
6. Could the use of unethical means be justified to those most affected
by them?

Means–end relationships are a crucial factor to consider in ethical

decision-making.

Ethical Decision-Making

Given the information presented, how does one then translate ethical theories
and approaches to real-world application? How does a person interpret this
knowledge into something useful for personal and professional life? These
pieces are part of the bigger picture in that all of the previous information
guides ethical decision-making. To make ethical decisions, it is important to
ask the right questions, to focus on the main issues, to balance the determina-
tion with compromise, to debate possibilities, and to make the decision that
stems from these recommended steps. Additional factors that influence ethi-
cal decision-making include families, friends, environments, community,
culture, law, and religion. These factors along with personal opinion shape a
person’s concept of right and wrong. Cumulatively, the ideas of the various
approaches presented provide a foundation to explore the issues involved in
ethical decision-making.
10 Ethics and the Practice of Forensic Science

When attempting to make a decision, analyzing the issue from multiple

perspectives is the best place to begin. The next step is to consider the facts
involved: What is beneficial and what is unnecessary? It is then helpful to
consider the perspectives that others might take regarding the issue. If time
allows, open the issue or decision up for debate; asking questions and receiv-
ing feedback may help a person discover creative solutions or enable alternate
perspectives to emerge. Though feedback is generally positive, it has been
shown that social interests tend to have the most significant impact on ethi-
cal decision-making, stemming from the external pressures. Conceptually,
the pressure from social interests is relative to peer pressure; what answer is
preferred by the majority? It is not uncommon for decisions to be acquired
without adequate time to stop, think, examine, and deliberate the actions for
that ethical value. In these cases, people should rely on their personal charac-
ter as a guide. After the initial process, one or more decisions may emerge. At
this point, it is wise to weigh the pros and the cons of each potential outcome:
What are the values of the action compared with the consequences that may
occur? Applying situational ethics may help a person to rationalize decisions
or actions. Situational ethics simply depend on the particular situation’s cir-
cumstances. However, situational ethics creates a double standard in rela-
tion to ethical principles because what works for one person or group may
not work for another. These steps provide the initial foundation for ethical
decision-making.
Typically, moral judgments made in routine situations are easier because
there is consistency of choices based on rules and regulations. Unusual situ-
ations are more difficult because they can involve conflicting values of reli-
gion, culture, or law, and are not as familiar to a person. One framework
for ethical decision-making presented in Ethics of Human Communication
(Johannesen et al., 2008) stems from Rushworth Kidder regarding ethics in
journalism. This framework was developed to explore the underlying struc-
ture of decision-making:

1. It is an ethical issue and it consists of x, y, and z.

2. This person/these people are responsible for making the decision.
3. The relevant facts are x, y, and z.
4. It is truly a matter of right or wrong, ethical or unethical.
5. Is it a choice between competing ethical or right actions?
6. Common theories should be applied to determine what is at stake.
7. Look at both options to see if a third option, or compromise,
transpires.
8. Make a decision.
9. Evaluate the situation to learn what would or would not be done if
the situation occurred again.
Another random document with
no related content on Scribd:
 General Miles,
Report
(Annual Reports of the War Department, 1898,
volume 1, part 2, page 36).

{618}

UNITED STATES OF AMERICA: A. D. 1898 (July-September).

The War with Spain.
Capture of Manila.
Relations with the Filipino insurgents.
General Merritt's report.
Aguinaldo declared President of the Philippine Republic.

"Immediately after my arrival [July 25] I visited General

Greene's camp and made a reconnaissance of the position held
by the Spanish, and also the opposing lines of the insurgent
forces, hereafter to be described. I found General Greene's
command encamped on a strip of sandy land running parallel to
the shore of the bay and not far distant from the beach, but
owing to the great difficulties of landing supplies, the
greater portion of the force had shelter tents only, and were
suffering many discomforts, the camp being situated in a low,
flat place, without shelter from the heat of the tropical sun
or adequate protection during the terrific downpours of rain
so frequent at this season. I was at once struck by the
exemplary spirit of patient, even cheerful, endurance shown by
the officers and men under such circumstances, and this
feeling of admiration for the manner in which the American
soldier, volunteer and regular alike, accept the necessary
hardships of the work they have undertaken to do, has grown
and increased with every phase of the difficult and trying
campaign which the troops of the Philippine expedition have
brought to such a brilliant and successful conclusion.

"I discovered during my visit to General Greene that the left

or north flank of his brigade camp extended to a point on the
'Calle Real' about 3,200 yards from the outer line of Spanish
defenses of the city of Manila. This Spanish line began at the
powder magazine, or old Fort San Antonio, within a hundred
yards of the beach and just south of the Malate suburb of
Manila, and stretched away to the Spanish left in more or less
detached works, eastward, through swamps and rice fields,
covering all the avenues of approach to the town and
encircling the city completely. The Filipinos, or insurgent
forces at war with Spain, had, prior to the arrival of the
American land forces, been waging a desultory warfare with the
Spaniards for several months, and were at the time of my
arrival in considerable force, variously estimated and never
accurately ascertained, but probably not far from 12,000 men.
These troops, well supplied with small arms, with plenty of
ammunition and several field guns, had obtained positions of
investment opposite to the Spanish line of detached works
throughout their entire extent; and on the particular road
called the 'Calle Real,' passing along the front of General
Greene's brigade camp and running through Malate to Manila,
the insurgents had established an earthwork or trench within
800 yards of the powder-magazine fort. They also occupied as
well the road to the right, leading from the village of Pasay,
and the approach by the beach was also in their possession.
This anomalous state of affairs, namely, having a line of
quasi-hostile native troops between our forces and the Spanish
position, was, of course, very objectionable, but it was
difficult to deal with, owing to the peculiar condition of our
relations with the insurgents, which may be briefly stated as
follows:

"Shortly after the naval battle of Manila Bay, the principal

leader of the insurgents, General Emilio Aguinaldo, came to
Cavite from Hongkong, and, with the consent of our naval
authorities, began active work in raising troops and pushing
the Spaniards in the direction of the city of Manila. Having
met with some success, and the natives flocking to his
assistance, he proclaimed an independent government of
republican form, with himself as president, and at the time of
my arrival in the islands the entire edifice of executive and
legislative departments and subdivision of territory for
administrative purposes had been accomplished, at least on
paper, and the Filipinos held military possession of many
points in the islands other than those in the vicinity of
Manila. As General Aguinaldo did not visit me on my arrival
nor offer his services as a subordinate military leader, and
as my instructions from the President fully contemplated the
occupation of the islands by the American land forces, and
stated that 'the powers of the military occupant are absolute
and supreme and immediately operate upon the political
condition of the inhabitants,' I did not consider it wise to
hold any direct communication with the insurgent leader until
I should be in possession of the city of Manila, especially as
I would not until then be in a position to issue a
proclamation and enforce my authority, in the event that his
pretensions should clash with my designs.

"For these reasons the preparations for the attack on the city
were pressed and military operations conducted without
reference to the situation of the insurgent forces. The wisdom
of this course was subsequently fully established by the fact
that when the troops of my command carried the Spanish
intrenchments, extending from the sea to the Pasay road on the
extreme Spanish right, we were under no obligations, by
pre-arranged plans of mutual attack, to turn to the right and
clear the front still held against the insurgents, but were
able to move forward at once and occupy the city and suburbs.

"To return to the situation of General Greene's brigade as I

found it on my arrival, it will be seen that the difficulty in
gaining an avenue of approach to the Spanish line lay in the
fact of my disinclination to ask General Aguinaldo to withdraw
from the beach and the 'Calle Real,' so that Greene could move
forward. This was overcome by instructions to General Greene
to arrange, if possible, with the insurgent brigade commander
 in his immediate vicinity to move to the right and allow the
American forces unobstructed control of the roads in their
immediate front. No objection was made, and accordingly
General Greene's brigade threw forward a heavy outpost line on
the 'Calle Real' and the beach and constructed a trench, in
which a portion of the guns of the Utah batteries was placed.
The Spanish, observing this activity on our part, made a very
sharp attack with infantry and artillery on the night of July
31. The behavior of our troops during this night attack was
all that could be desired, and I have, in cablegrams to the
War Department, taken occasion to commend by name those who
deserve special mention for good conduct in the affair. Our
position was extended and strengthened after this and resisted
successfully repeated night attacks, our forces suffering,
however, considerable loss in wounded and killed, while the
losses of the enemy, owing to the darkness, could not be
ascertained.

"The strain of the night fighting and the heavy details for
outpost duty made it imperative to re-enforce General Greene's
troops with General MacArthur's brigade, which had arrived in
transports on the 31st of July. The difficulties of this
operation can hardly be overestimated. The transports were at
anchor off Cavite, 5 miles from a point on the beach where it
was desired to disembark the men.
{619}
Several squalls, accompanied by floods of rain, raged day
after day, and the only way to get the troops and supplies
ashore was to load them from the ship's side into native
lighters (called 'cascos') or small steamboats, move them to a
point opposite the camp, and then disembark them through the
surf in small boats, or by running the lighters head on to the
beach. The landing was finally accomplished, after days of
hard work and hardship; and I desire here to express again my
admiration for the fortitude and cheerful willingness of the
men of all commands engaged in this operation. Upon the
assembly of MacArthur's brigade in support of Greene's, I had
about 8,500 men in position to attack, and I deemed the time
had come for final action. During the time of the night
attacks I had communicated my desire to Admiral Dewey that he
would allow his ships to open fire on the right of the Spanish
line of intrenchments, believing that such action would stop
the night firing and loss of life, but the admiral had
declined to order it unless we were in danger of losing our
position by the assaults of the Spanish, for the reason that,
in his opinion, it would precipitate a general engagement, for
which he was not ready. Now, however, the brigade of General
MacArthur was in position and the 'Monterey' had arrived, and
under date of August 6 Admiral Dewey agreed to my suggestion
that we should send a joint letter to the captain-general
notifying him that he should remove from the city all
non-combatants within forty-eight hours, and that operations
against the defenses of Manila might begin at any time after
the expiration of that period.

"This letter was sent August 7, and a reply was received the
same date, to the effect that the Spanish were without places
of refuge for the increased numbers of wounded, sick women,
and children now lodged within the walls. On the 9th a formal
joint demand for the surrender of the city was sent in. This
demand was based upon the hopelessness of the struggle on the
part of the Spaniards, and that every consideration of
humanity demanded that the city should not be subjected to
bombardment under such circumstances. The captain-general's
reply, of same date, stated that the council of defense had
declared that the demand could not be granted; but the
captain-general offered to consult his Government if we would
allow him the time strictly necessary for the communications
by way of Hongkong. This was declined on our part for the
reason that it could, in the opinion of the admiral and
myself, lead only to a continuance of the situation, with no
immediate result favorable to us, and the necessity was
apparent and very urgent that decisive action should be taken
at once to compel the enemy to give up the town, in order to
relieve our troops from the trenches and from the great
exposure to unhealthy conditions which were unavoidable in a
bivouac during the rainy season.

"The seacoast batteries in defense of Manila are so situated

that it is impossible for ships to engage them without firing
into the town, and as the bombardment of a city filled with
women and children, sick and wounded, and containing a large
amount of neutral property, could only be justified as a last
resort, it was agreed between Admiral Dewey and myself that an
attempt should be made to carry the extreme right of the
Spanish line of intrenchments in front of the positions at
that time occupied by our troops, which, with its flank on the
seashore, was entirely open to the fire of the navy. It was
not my intention to press the assault at this point, in case
the enemy should hold it in strong force, until after the navy
had made practicable breaches in the works and shaken the troops
holding them, which could not be done by the army alone, owing
to the absence of siege guns. … It was believed, however, as
most desirable, and in accordance with the principles of
civilized warfare, that the attempt should be made to drive
the enemy out of his intrenchments before resorting to the
bombardment of the city. …

"All the troops were in position on the 13th at an early hour

in the morning. About 9 a. m. on that day our fleet steamed
forward from Cavite and before 10 a. m. opened a hot and
accurate fire of heavy shells and rapid-fire projectiles on
the sea flank of the Spanish intrenchments at the powder
magazine fort, and at the same time the Utah batteries, in
position in our trenches near the 'Calle Real,' began firing
with great accuracy. At 10.25, on a prearranged signal from
our trenches that it was believed our troops could advance,
the navy ceased firing, and immediately a light line of
skirmishers from the Colorado regiment of Greene's brigade
passed over our trenches and deployed rapidly forward, another
line from the same regiment from the left flank of our
earthworks advancing swifty up the beach in open order. Both
these lines found the powder-magazine fort and the trenches
flanking it deserted, but as they passed over the Spanish
works they were met by a sharp fire from a second line
situated in the streets of Malate, by which a number of men
were killed and wounded, among others the soldier who pulled
down the Spanish colors still flying on the fort and raised
our own.

"The works of the second line soon gave way to the determined
advance of Greene's troops, and that officer pushed his
brigade rapidly through Malate and over the bridges to occupy
Binondo and San Miguel, as contemplated in his instructions.
In the meantime the brigade of General MacArthur, advancing
simultaneously on the Pasay road, encountered a very sharp
fire, coming from the blockhouses, trenches, and woods in his
front, positions which it was very difficult to carry, owing
to the swampy condition of the ground on both sides of the
roads and the heavy undergrowth concealing the enemy. With
much gallantry and excellent judgment on the part of the
brigade commander and the troops engaged these difficulties
were overcome with a minimum loss, and MacArthur advanced and
held the bridges and the town of Malate, as was contemplated
in his instructions.

"The city of Manila was now in our possession, excepting the

walled town, but shortly after the entry of our troops into
Malate a white flag was displayed on the walls, whereupon
Lieutenant Colonel C. A. Whittier, United States Volunteers,
of my staff, and Lieutenant Brumby, United States Navy,
representing Admiral Dewey, were sent ashore to communicate
with the Captain-General. I soon personally followed these
officers into the town, going at once to the palace of the
Governor-General, and there, after a conversation with the
Spanish authorities, a preliminary agreement of the terms of
capitulation was signed by the Captain-General and myself.
This agreement was subsequently incorporated into the formal
 terms of capitulation, as arranged by the officers
representing the two forces, a copy of which is hereto
appended and marked.
{620}
Immediately after the surrender the Spanish colors on the sea
front were hauled down and the American flag displayed and
saluted by the guns of the navy. The Second Oregon Regiment,
which had proceeded by sea from Cavite, was disembarked and
entered the walled town as a provost guard, and the colonel
was directed to receive the Spanish arms and deposit them in
places of security. The town was filled with the troops of the
enemy driven in from the intrenchments, regiments formed and
standing in line in the streets, but the work of disarming
proceeded quietly and nothing unpleasant occurred.

"In leaving the subject of the operations of the 13th, I

desire here to record my appreciation of the admirable manner
in which the orders for attack and the plan for occupation of
the city were carried out by the troops exactly as
contemplated. I submit that for troops to enter under fire a
town covering a wide area, to rapidly deploy and guard all
principal points in the extensive suburbs, to keep out the
insurgent forces pressing for admission, to quietly disarm an
army of Spaniards more than equal in numbers to the American
troops, and finally by all this to prevent entirely all
rapine, pillage, and disorder, and gain entire and complete
possession of a city of 300,000 people, filled with natives
hostile to the European interests, and stirred up by the
knowledge that their own people were fighting in the outside
trenches, was an act which only the law-abiding, temperate,
resolute American soldier, well and skillfully handled by his
regimental and brigade commanders, could accomplish. …

"The amount of public funds and the numbers of the prisoners

of war and small arms taken have been reported in detail by
cable. It will be observed that the trophies of Manila were
nearly $900,000, 13,000 prisoners, and 22,000 arms.
Immediately after the surrender my headquarters were
established in the ayuntamiento, or city office of the
Governor-General, where steps were at once inaugurated to set
up the government of military occupancy. … On the 16th a
cablegram containing the text of the President's proclamation
directing a cessation of hostilities was received by me, and
at the same time an order to make the fact known to the
Spanish authorities, which was done at once. This resulted in
a formal protest from the Governor-General in regard to the
transfer of public funds then taking place, on the ground that
the proclamation was dated prior to the surrender. To this I
replied that the status quo in which we were left with the
cessation of hostilities was that existing at the time of the
receipt by me of the official notice, and that I must insist
upon the delivery of the funds. The delivery was made under
protest.

"After the issue of my proclamation and the establishment of

my office as military governor, I had direct written
communication with General Aguinaldo on several occasions. He
recognized my authority as military governor of the town of
Manila and suburbs, and made professions of his willingness to
withdraw his troops to a line which I might indicate, but at
the same time asking certain favors for himself. The matters
in this connection had not been settled at the date of my
departure. Doubtless much dissatisfaction is felt by the rank
and file of the insurgents that they have not been permitted
to enjoy the occupancy of Manila, and there is some ground for
trouble with them owing to that fact, but, notwithstanding
many rumors to the contrary, I am of the opinion that the
leaders will be able to prevent serious disturbances, as they
are sufficiently intelligent and educated to know that to
antagonize the United States would be to destroy their only
chance of future political improvement.

"On the 28th instant I received a cablegram directing me to

transfer my command to Major-General Otis, United States
 Volunteers, and to proceed to Paris, France, for conference
with the peace commissioners. I embarked on the steamer
'China' on the 30th in obedience to these instructions."

Report of General Wesley Merritt

(Annual Reports of the War Department, 1898,
volume 1, pages 39-45).

"Aguinaldo … retired to Malalos, about 25 miles to the

northward, leaving his troops entrenched round Manila, and
there with considerable pomp and ceremony on September 29th,
1898, he was declared First President of the Philippine
Republic, and the National Congress was opened with Pedro
Paterno as President of that assembly."

G. J. Younghusband,
The Philippines and Round About,
page 27.

UNITED STATES OF AMERICA: A. D. 1898 (July-December).

War with Spain.
Suspension of hostilities.
Negotiation of Treaty of Peace.
Instructions to American Commissioners.
Relinquishment of Spanish sovereignty over Cuba and cession
of Porto Rico, the island of Guam and the Philippine Islands
to the United States.

In his message to Congress, December 5, 1898, President

McKinley gave the following account of his reception of
overtures from Spain, for the termination of the war, and of
the negotiations which resulted in a treaty of peace:

"The annihilation of Admiral Cervera's fleet, followed by the

capitulation of Santiago, having brought to the Spanish
Government a realizing sense of the hopelessness of continuing
a struggle now become wholly unequal, it made overtures of
 peace through the French Ambassador, who, with the assent of
his Government, had acted as the friendly representative of
Spanish interests during the war. On the 26th of July M.
Cambon presented a communication signed by the Duke of
Almodovar, the Spanish Minister of State, inviting the United
States to state the terms upon which it would be willing to
make peace. On the 30th of July, by a communication addressed
to the Duke of Almodovar and handed to M. Cambon, the terms of
this Government were announced, substantially as in the
protocol afterwards signed. On the 10th of August the Spanish
reply, dated August 7th, was handed by M. Cambon to the
Secretary of State. It accepted unconditionally the terms
imposed as to Cuba, Porto Rico and an island of the Ladrone
group, but appeared to seek to introduce inadmissible
reservations in regard to our demand as to the Philippine
Islands. Conceiving that discussion on this point could
neither be practical nor profitable, I directed that, in order
to avoid misunderstanding, the matter should be forthwith
closed by proposing the embodiment in a formal protocol of the
terms upon which the negotiations for peace were to be
undertaken.
{621}
The vague and inexplicit suggestion of the Spanish note could
not be accepted, the only reply being to present as a virtual
ultimatum a draft of protocol embodying the precise terms
tendered to Spain in our note of July 30th, with added
stipulations of detail as to the appointment of commissioners
to arrange for the evacuation of the Spanish Antilles. On
August 12th M. Cambon announced his receipt of full powers to
sign the protocol submitted. Accordingly, on the afternoon of
August 12th M. Cambon, as the plenipotentiary of Spain, and
the Secretary of State, as the plenipotentiary of the United
States, signed a protocol providing:

Article I—
Spain will relinquish all claim of sovereignty over and title
to Cuba.
Article II-
Spain will cede to the United States the island of Porto Rico
and other islands now under Spanish sovereignty in the West
Indies and also an island in the Ladrones to be selected by
the United States.

Article III-
The United States will occupy and hold the city, bay and
harbor of Manila pending the conclusion of a treaty of peace,
which shall determine the control, disposition and government
of the Philippines.

The fourth article provided for the appointment of joint

commissions on the part of the United States and Spain, to
meet in Havana and San Juan, respectively, for the purpose of
arranging and carrying out the details of the stipulated
evacuation of Cuba, Porto Rico and other Spanish islands in
the West Indies.

The fifth article provided for the appointment of not more

than five commissioners on each side, to meet at Paris not
later than October 1st, and proceed to the negotiation and
conclusion of a treaty of peace, subject to ratification
according to the respective constitutional forms of the two
countries.

The sixth and last article provided that upon the signature of
the protocol hostilities between the two countries should be
suspended and that notice to that effect should be given as
soon as possible by each government to the commanders of its
military and naval forces. Immediately upon the conclusion of
the protocol I issued a proclamation of August 12th,
suspending hostilities on the part of the United States. The
necessary orders to that end were at once given by telegraph.
The blockade of the ports of Cuba and San Juan de Porto Rico
was in like manner raised. On the 18th of August the
muster-out of 100,000 Volunteers, or as near that number as
was found to be practicable, was ordered. On the 1st of
December 101,165 officers and men had been mustered out and
discharged from the service and 9,002 more will be mustered
out by the 10th of this month. Also a corresponding number of
general staff officers have been honorably discharged from the
service. The military commissions to superintend the
evacuation of Cuba, Porto Rico and the adjacent islands were
forthwith appointed: For Cuba, Major-General James F. Wade,
Rear-Admiral William T. Sampson, Major-General Matthew C.
Butler. For Porto Rico, Major-General John R. Brooke,
Rear-Admiral Winfield S. Schley and Brigadier-General William
W. Gordon, who soon afterwards met the Spanish commissioners
at Havana and San Juan respectively. … Pursuant to the fifth
article of the protocol, I appointed William H. Day, late
Secretary of State; Cushman K. Davis, William P. Frye and
George Gray, Senators of the United States, and Whitelaw Reid,
to be the peace commissioners on the part of the United
States. Proceeding in due season to Paris they there met on
the first of October five commissioners, similarly appointed
on the part of Spain."

Message of the President to Congress,

December 5, 1898.

The instructions given (September 16) by President McKinley to

the commissioners appointed to treat for peace with Spain, and
the correspondence between the commissioners at Paris and the
President and the Secretary of State at Washington during the
progress of the negotiations, were communicated confidentially
to the United States Senate on the 30th of January, 1899, but
not published until February, 1901, when the injunction of
secrecy was removed and the printing of the papers ordered by
vote of the Senate. The chief interest of these papers lies in
their disclosure of what passed between the American executive
and the peace commissioners on the subject of the Philippine
Islands which led to the demand for their entire surrender by
Spain.

In his instructions of September 16th to the commissioners, on

their departure for the meeting with Spanish commissioners at
Paris, the President wrote on this subject: "By article 6 of
the protocol it was agreed that hostilities between the two
countries should be suspended, and that notice to that effect
should be given as soon as possible by each Government to the
Commanders of its military and naval forces. Such notice was
given by the Government of the United States immediately after
the signature of the protocol, the forms of the necessary
orders having previously been prepared. But before notice
could reach the commanders of the military and naval forces of
the United States in the Philippines they captured and took
possession by conquest of the city of Manila and its suburbs,
which are therefore held by the United States by conquest as
well as by virtue of the protocol. In view of what has taken
place it is necessary now to determine what shall be our
future relations to the Philippines. …

"Our aim in the adjustment of peace should be directed to

lasting results and to the achievement of the common good
under the demands of civilization rather than to ambitious
designs. The terms of the protocol were framed upon this
consideration. The abandonment of the Western Hemisphere by
Spain was an imperative necessity. In presenting that
requirement we only fulfilled a duty universally acknowledged.
It involves no ungenerous reference to our recent foe, but
simply a recognition of the plain teachings of history, to say
that it was not compatible with the assurance of permanent
peace on and near our own territory that the Spanish flag
should remain on this side of the sea. This lesson of events
and of reason left no alternative as to Cuba, Porto Rico, and
the other islands belonging to Spain in this hemisphere. The
Philippines stand upon a different basis. It is none the less
true, however, that, without any original thought of complete
or even partial acquisition, the presence and success of our
 arms at Manila imposes upon us obligations which we can not
disregard. The march of events rules and overrules human
action. A vowing unreservedly the purpose which has animated
all our effort, and still solicitous to adhere to it, we can
not be unmindful that without any desire or design on our part
the war has brought us new duties and responsibilities which
we must meet and discharge as becomes a great nation on whose
growth and career from the beginning the Ruler of Nations has
plainly written the high command and pledge of civilization.

{622}

"Incidental to our tenure in the Philippines is the commercial

opportunity to which American statesmanship can not be
indifferent. It is just to use every legitimate means for the
enlargement of American trade; but we seek no advantages in
the Orient which are not common to all. Asking only the open
door for ourselves, we are ready to accord the open door to
others. The commercial opportunity which is naturally and
inevitably associated with this new opening depends less on
large territorial possessions than upon an adequate commercial
basis and upon broad and equal privileges. It is believed that
in the practical application of these guiding principles the
present interests of our country and the proper measure of its
duty, its welfare in the future, and the consideration of its
exemption from unknown perils will be found in full accord
with the just, moral, and humane purpose which was invoked as
our justification in accepting the war.

"In view of what has been stated, the United States can not
accept less than the cession in full right and sovereignty of
the island of Luzon. It is desirable, however, that the United
States shall acquire the right of entry for vessels and
merchandise belonging to citizens of the United States into
such ports of the Philippines as are not ceded to the United
States upon terms of equal favor with Spanish ships and
merchandise, both in relation to port and customs charges and
rates of trade and commerce, together with other rights of
protection and trade accorded to citizens of one country
within the territory of another. You are therefore instructed
to demand such concession, agreeing on your part that Spain
shall have similar rights as to her subjects and vessels in
the ports of any territory in the Philippines ceded to the
United States."

On the 7th of October, Mr. Day, on behalf of the American

commissioners, cabled a long communication from Paris to Mr.
Hay, his successor in the United States Department of State,
summarizing testimony given before the Commission by General
Merritt, lately commanding in the Philippines, and statements
brought by General Merritt from Admiral Dewey, General Greene,
and others. In part, the telegram was as follows:

"General Anderson, in correspondence with Aguinaldo in June

and July, seemed to treat him and his forces as allies and
native authorities, but subsequently changed his tone. General
Merritt reports that Admiral Dewey did not approve this
correspondence and advised against it. Merritt and Dewey both
kept clear of any compromising communications. Merritt
expresses opinion we are in no way committed to any insurgent
programme. Answering questions of Judge Day, General Merritt
said insurrection practically confined to Luzon. Tribal and
religious differences between the inhabitants of various
islands. United States has helped rather than injured
insurrection. Under no obligation other than moral to help
natives. Natives of Luzon would not accept Spanish rule, even
with amnesty. Insurgents would be victorious unless Spaniards
did better in future than in past. Insurgents would fight
among themselves if they had no common enemy. Think it
feasible for United States to take Luzon and perhaps some
adjacent islands and hold them as England does her colonies.
Natives could not resist 5,000 troops. … General Merritt
thinks that if United States attempted to take possession of
Luzon, or all the group as a colony, Aguinaldo and his
immediate followers would resist it, but his forces are
divided and his opposition would not amount to anything. If
the islands were divided, filibustering expeditions might go
from one island to another, thus exposing us to constant
danger of conflict with Spain. In answer to questions of
Senator Frye, Merritt said insurgents would murder Spaniards
and priests in Luzon and destroy their property if the United
States withdrew. United States under moral obligation to stay
there. He did not know whether the effect of setting up a
government by the United States in Luzon would be to produce
revolutions in other islands. It might cause reforms in their
government. … Answering questions of Mr. Gray, Merritt said
consequences in case of either insurgent or Spanish triumph
made it doubtful whether United States would be morally
justified in withdrawing. Our acts were ordinary acts of war,
as if we had attacked Barcelona, but present conditions in
Philippine Islands were partly brought about by us. Insurgents
not in worse condition by our coming. Spaniards hardly able to
defend themselves. If we restored them to their position and
trenches, they might maintain themselves with the help of a
navy when we withdrew. Did not know that he could make out a
responsibility by argument, but he felt it. It might be
sentimental. He thought it would be an advantage if the United
States would change its policy and keep the islands. (He)
thought our interests in the East would be helped by the cheap
labor in the Philippines, costing only from 20 to 80 cents a
day, according to skill. … Answering questions of Mr. Reid,
Merritt said he considered capture of Manila practically
capture of group. Nothing left of Spanish sovereignty that was
not at mercy of the United States. Did not think our humanity
bounded by geographical lines. After Dewey's victory we armed
insurgents to some extent, but Dewey says it was
over-estimated. Insurgents bought arms from Hongkong merchants
with Dewey's cognizance, but Dewey was not in favor of allowing
this to continue. Spaniards would destroy Aguinaldo and his
principal followers, if allowed to do so."
 October 25, Judge Day cabled a message to Washington, saying:
"Differences of opinion among commissioners concerning
Philippine Islands are set forth in statements transmitted
herewith. On these we request early consideration and explicit
instructions. Liable now to be confronted with this question
in joint commission almost immediately." The differing
statements then transmitted were three in number, the first of
them signed by Messrs. Davis, Frye, and Reid, who said:
"Information gained by commission in Paris leads to conviction
that it would be naval, political, and commercial mistake to
divide the archipelago. Nearly all expert testimony taken
tends to this effect. As instructions provide for retention at
least of Luzon, we do not consider question of remaining in
Philippine Islands at all as now properly before us. We
therefore ask for extension of instructions. Spain governed
and defended these islands from Manila, and with destruction
of her fleet and the surrender of her army we became as
complete masters of the whole group as she had been, with
nothing needed to complete the conquest save to proceed with
the ample forces we had at hand to take unopposed possession.
{623}
The Ladrones and Carolines were also governed from the same
capital by the same governor-general. National boundaries
ought to follow natural divisions, but there is no natural
place for dividing Philippine Islands. … If we do not want the
islands ourselves, better to control their disposition; that
is, to hold the option on them rather than to abandon it.
Could then at least try to protect ourselves by ample treaty
stipulations with the acquiring powers. Commercially, division
of archipelago would not only needlessly establish dangerous
rivals at our door, but would impair value of part we kept."

Disagreeing with this view, Judge Day said:

"I am unable to agree that we should peremptorily demand the

entire Philippine island group. In the spirit of our
instructions, and bearing in mind the often declared
disinterestedness of purpose and freedom from designs of
conquest with which the war was undertaken, we should be
consistent in our demands in making peace. Territory
permanently held must be taken as war indemnity and with due
regard to our responsibility because of the conduct of our
military and naval authorities in dealing with the insurgents.
Whether this conduct was wise or unwise is not now important. We
cannot leave the insurgents to mere treaty stipulations or to
their unaided resources, either to form a government or to
battle against a foe which (although) unequal to us, might
readily overcome them. On all hands it is agreed that the
inhabitants of the islands are unfit for self-government. This
is particularly true of Mindanao and the Sulu group. Only
experience can determine the success of colonial expansion
upon which the United States is entering. It may prove
expensive in proportion to the scale upon which it is tried
with ignorant and semibarbarous people at the other side of
the world. It should therefore be kept within bounds." Judge
Day, accordingly, suggested a division of the archipelago that
would give to the United States Luzon, Mindoro, and Palawan,
and control the entrance to the China Sea. Senator Gray, in a
third statement, dissented from both these views, saying: "The
undersigned can not agree that it is wise to take Philippine
Islands in whole or in part. To do so would be to reverse
accepted continental policy of the country, declared and acted
upon throughout our history. Propinquity governs the case of
Cuba and Porto Rico. Policy proposed introduces us into
European politics and the entangling alliances against which
Washington and all American statesmen have protested. It will
make necessary a navy equal to largest of powers; a greatly
increased military establishment; immense sums for
fortifications and harbors; multiply occasions for dangerous
complications with foreign nations, and increase burdens of
taxation. Will receive in compensation no outlet for American
labor in labor market already overcrowded and cheap; no area
for homes for American citizens; climate and social conditions
demoralizing to character of American youth; new and disturbing
questions introduced into our politics; church question
menacing. On whole, instead of indemnity—injury. The
undersigned can not agree that any obligation incurred to
insurgents is paramount to our own manifest interests. … No
place for colonial administration or government of subject
people in American system. So much from standpoint of
interest; but even conceding all benefits claimed for
annexation, we thereby abandon the infinitely greater benefit
to accrue from acting the part of a great, powerful, and
Christian nation; we exchange the moral grandeur and strength
to be gained by keeping our word to nations of the world and
by exhibiting a magnanimity and moderation in the hour of
victory that becomes the advanced civilization we claim, for
doubtful material advantages and shameful stepping down from
high moral position boastfully assumed. We should set example
in these respects, not follow in the selfish and vulgar greed
for territory which Europe has inherited from medieval times.
Our declaration of war upon Spain was accompanied by a solemn
and deliberate definition of our purpose. Now that we have
achieved all and more than our object, let us simply keep our
word. … At the very least let us adhere to the President's
instructions and if conditions require the keeping of Luzon
forego the material advantages claimed in annexing other
islands. Above all let us not make a mockery of the injunction
contained in those instructions, where, after stating that we
took up arms only in obedience to the dictates of humanity and
in the fulfillment of high public and moral obligations, and
that we had no design of aggrandizement and no ambition of
conquest, the President among other things eloquently says:
'It is my earnest wish that the United States in making peace
should follow the same high rule of conduct which guided it in
facing war. It should be as scrupulous and magnanimous in the
concluding settlement as it was just and humane in its
original action.' This and more, of which I earnestly ask a
re-perusal, binds my conscience and governs my actions."

But the President had now arrived at a different state of