"OUR LEGAL PRINCIPLES AND HUMAN NATURE CONSPIRED TO CREATE AN OPPORTUNITY FOR DR. SMITH TO POLLUTE THE CRIMINAL JUSTICE SYSTEM WITH SOME VERY FRAUDULENT SCIENCE.
THAT FORENSIC PATHOLOGY MAY BE CLEANSED BY THE RECOMMENDATIONS OF THIS REPORT OFFERS LITTLE COMFORT TO THOSE WHO REALIZE THE SAME ISSUES INFECT THE OTHER AREAS OF FORENSIC OPINION EVIDENCE."
LAWYER ALAN GOLD: LAWYER'S WEEKLY;
Some valuable observations about forensic evidence are made by Toronto lawyer Alan Gold in an article recently published in Lawyer's Weekly under the heading, "Goudge Report should go beyond forensic pathology."
"The Goudge Report, an inquiry into pediatric forensic pathology in Ontario, was released on Oct. 1," the article begins.
"This report was eagerly anticipated not just by those directly concerned with pathological medicine, but by everyone aware of the problematic nature of expert opinion evidence," it continues.
"Judges, including Supreme Court of Canada Justice Ian Binnie, have repeatedly decried the problem of distinguishing valid and reliable expert evidence from its counterfeit counterpart.
Those concerned with the problem hoped that Justice Goudge's report would transcend its particular context and advocate a more vigorous judicial gate keeping function, especially in criminal cases.
It does so - but only somewhat.
Within the context of forensic pathology, the report is comprehensive and unassailable.
It proposes a forensic pathology edifice that is state of the art.
It deals cogently and completely with the problems and issues born in "expert evidence" as practised by Dr. Charles Smith, whose actions triggered the inquiry, and the system's response to it.
Recommendations such as increased legal aid funding for the defence, including junior and associate counsel, will be welcomed by the defence bar, as will the recommendations for increased legal aid funding for defence expert witnesses and for the Crown's pathologist witnesses to meet in advance with defence counsel.
But, unfortunately, the report fails to sufficiently generalize those problems and issues or to apply the lessons learned beyond the particular context, undoubtedly because of the legal limitations on the scope of the inquiry and its recommendations.
Our legal principles and human nature conspired to create an opportunity for Dr. Smith to pollute the criminal justice system with some very fraudulent science.
That forensic pathology may be cleansed by the recommendations of this report offers little comfort to those who realize the same issues infect the other areas of forensic opinion evidence.
Funding defence expert witnesses to ensure a level playing field at trial is a crucial and fundamental issue that transcends forensic pathology.
That prosecution expert witnesses should make themselves available in advance of trial for meetings with defence counsel should be a requirement of general application.
The report also fails in some respects to appreciate the inherently dangerous nature of forensic opinion evidence.
The recommendations urge that police and pathologists "be vigilant against
confirmation bias" and recommend training in that regard.
Such training should be supported, but to think that confirmation bias can be eradicated in that way or that training can always inoculate against that insidious corrupting influence is wishful thinking.
Confirmation bias is ubiquitous in forensic science as currently practised.
Fingerprints, ballistic marking and trace evidence findings are all "matched" by the one-to-one comparison that was recognized many decades ago to be valueless in identification evidence where persons are being matched.
Even DNA profiling can be made more reliable by sequential unmasking, so that decisions are made before the technician can be influenced by knowledge of the suspect's profile.
Nevertheless, the report does emphasize the judicial gate keeping function, and chapter 18 on the role of the court should be mandatory reading for all participants in the criminal (and civil) justice system.
The report states: "A concern about the reliability of evidence is a fundamental component of the law of evidence... Reliability can be an important consideration in determining whether the proposed expert evidence is relevant and necessary; whether it is excluded under any exclusionary rule,including the rule that requires evidence to be excluded if its prejudicial effect exceeds its probative value; and whether the expert is properly qualified.
Trial judges should be vigilant in exercising their gate keeping role with respect to the admissibility of such evidence.
In particular, they should ensure that expert scientific evidence that does not satisfy standards of threshold reliability be excluded, whether or not the science is classified as novel.
"Reliability, as the Goudge Report takes three volumes to teach us, is not a function of a witness's credentials or charisma or oratorical skills.
It is a function of methodology, how the evidentiary opinion was arrived at and, specifically, whether it was reached by compliance with the dictates of science.
Justice Goudge's report may mark the point at which we stop just talking about bad expert evidence and start doing something about it."
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