Binyamin Blum on the Legal History of Forensic Evidence

Published on: Author: Reuel Schiller

At the center of Binyamin Blum’s prize-winning article “The Hounds of Empire: Forensic Dog Tracking in Britain and its Colonies, 1888-1953,” 35 Law and History Review 621 (2017), is a counterintuitive narrative. An uninformed reader (such as yours truly) could be forgiven for believing that modern, “scientific,” forensic techniques—fingerprinting, tool marking, analysis of skeletal remains, dog tracking—were developed in Britain and then exported to its colonies. After all, our conception of the colonial project imagines a relationship between colony and metropole in which manufactured goods flow from the center to the periphery. Shouldn’t the same be true of the technology of law enforcement? In “The Hounds of Empire,” and the book project of which this article is a tantalizing preview, Professor Blum demonstrates that the opposite is true. Dog tracking was developed and deployed in Britain’s colonies and only slowly and fitfully made its way back to Britain.

Professor Blum’s narrative is as clear as it is engaging. The residents of Victorian England were vehemently opposed to the use of dog tracking as a form of forensic technology. They were justifiably skeptical of the ability of dogs to reliably track individuals. Indeed, studies showing the accuracy of dog tracking were hard to come by. Furthermore, the use of tracking dogs violated less rational, but equally tenacious, cultural norms. Dog tracking was associated with brutal slave catchers in the American South, an activity that sentimental Victorians reviled and categorically distinguished from their own colonial activities. It also involved contemplating and categorizing the smells of individual Englishmen in a society that, to quote a contemporary newspaper, “prefers to assume that odourlessness is the standard to be aimed at.” British opposition to dog tracking was so great that when Scotland Yard proposed using dogs to track Jack the Ripper during the height of his murder spree in 1888, people reacted with such outrage that the police shelved the idea.

Yet, the British showed no such reticence in their colonies. Professor Blum recounts how tracking dogs were embraced by colonial law enforcement authorities first in South Africa, and then in Palestine and elsewhere in the Empire. In some instances, colonial authorities gave innocuous, though questionable, explanations for the inconsistency. Dog tracking was effective in rural, non-industrial areas because there were fewer confusing scents or because colonial climates were more conducive to accurate results. For the most part, however, the use of tracking dogs in the colonies was driven by an odious combination of racism and necessity. In the context of colonial rule, where cooperative local witnesses were, not surprisingly, hard to find, law enforcement needed forensic evidence to substitute for traditional, eye-witness testimony. Colonial officials also asserted that dogs were a particularly effective tool to use in the colonies because of the British belief that Africans and Arabs had a superstitious fear of them that would generate confessions. Whether dogs could actually identify the scent of a criminal was less important than the fact that colonial subjects believed they could.

Of course the actual “science” behind dog tracking was more fiction than fact. Dogs seemed to respond as much to their handlers’ wishes as they did to any particular scent. Indeed, to their credit, British colonial judges in South Africa were unwilling to admit dog-tracking evidence in criminal trials. Their counterparts in Palestine had no such qualms, and Professor Blum describes the increasing use of dog-tracking evidence in the Middle East, particularly as tensions between Palestinians and British authorities grew during the Arab Revolt in the late 1930s. Ironically, even as local resistance to British colonialism increased, the British came to see dog tracking as a component of a just, scientific, demilitarized colonial system in which law enforcement could be portrayed as objective, accurate, and evenhanded because of its commitment to forensic expertise.

The standards for judging this accuracy, however, remained different in the colonies than they were back home. Despite decades of “successful” use of dog tracking throughout the Empire, courts in Britain were unwilling to admit dog-tracking evidence, even as domestic police forces increasingly used dogs in the years after World War II. Studies carried out in the 1950s failed to demonstrate the reliability of canine-derived evidence, and it was not until 1995 that British courts admitted such evidence, and even then, under substantial limitations.

“The Hounds of Empire” is a superb piece of legal history. It vividly demonstrates the culturally contingent attributes of allegedly objective law-enforcement practices. As such, it also contains a significant lesson for contemporary scholars of evidence and forensic science. The passage of time allows us to see that forensic techniques once thought of as objective and scientific were in fact shaped by the pathologies of racism and colonialism. This suggests that we should perhaps approach contemporary forensic techniques with a substantial degree of modesty.