Advice for the Courts? Sufficiently Reliable Assistance with Forensic Science and Medicine (Part 2)
| Author | Gary Edmond |
| Published date | 01 July 2012 |
| Date | 01 July 2012 |
| DOI | http://doi.org/10.1350/ijep.2012.16.3.405 |
| Subject Matter | Article |
ADVICE FOR THE COURTS?SUFFICIENTLY RELIABLEASSISTANCE WITH FORENSIC SCIENCE
Advice for the courts?
Sufficiently reliable
assistance with forensic
science and medicine
(Part 2)
By Gary Edmond*
Professor and Director, Expertise, Evidence & Law Program, School
of Law, The University of New South Wales
Abstract In recent years, following public inquiries (for example, the Goudge
Inquiry, 2007–08), reviews (for example, the US National Academy of Science,
2009; the Law Commission of England and Wales, 2011), systematic analysis of
wrongful convictions (for example, Innocence Projects) and empirical studies,
weaknesses with many types of forensic science and the frailty of the adversarial
criminal trial have been exposed, though inadequately addressed. Drawing
upon emerging empirical evidence from a variety of common law jurisdictions
(and recent work in the sociology of science) and building upon the discussion of
the Law Commission’s Report and draft Bill (in Part 1), this article considers one
means of helping common law courts to respond to some of the primary
difficulties raised by incriminating forensic science and forensic medicine
evidence. The proposal, involving an independent multidisciplinary advisory panel
(or MAP) reviewing impugned forensic science and medical techniques to assess
their reliability in order to provide support with admissibility determinations,
is intended to provide practical assistance with controversial expert opinion
doi:10.1350/ijep.2012.16.3.405
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2012) 16 E&P 263–297 263
* Email: g.edmond@unsw.edu.au. This research was supported by the ARC (FT0992041 and
LP120100063). I would like to thank Ron Allen, Simon Cole, David Hamer, Brynn Hibbert, Sheila
Jasanoff, Trudo Lemmens, Andrew Ligertwood, Peter McClellan, Jenny McEwan, David Mercer,
Glenn Porter, Mike Redmayne, Mehera San Roque, Kent Roach, Andy Roberts, Paul Roberts, Simon
Stern, Wendy Wagner and Tony Ward for critical contributions. Earlier versions were presented at
the John F. Kennedy School of Government, Harvard University, the School of Law, University of
Toronto, the Society for the Social Studies of Science (4S) annual conference, Cleveland, 2011, the
Australian Academy of Forensic Sciences, and the Expressions Workshop, 2012.
evidence adduced by the state though without excessive encroachment upon
the traditional party-dominated accusatorial trial.
Keywords Expert; Panel; Advisory body; Admissibility; Law reform; Law and
science; Court-appointed expert; Daubert; Impartial
1. Introduction to some socio-legal problems (with expertise)
hose working in the accusatorial trial tradition have not been suffi-
ciently attentive to the reliability of forensic science evidence. States,
through their police, forensic scientists, prosecutors and judges, have
been producing, adducing and admitting, and tribunals of fact have been
routinely relying upon, incriminating expert opinion evidence that is either
unreliable or of unknown reliability. Until relatively recently, most of this
evidence went substantially unchallenged, despite its questionable epistemic
provenance, the fact that it could have been empirically assessed using fairly
standardised research methods, and notwithstanding express legal commitment
to truth (i.e. rectitude of decision), fairness and the need to avoid convicting the
innocent.1Of significance, this failure to challenge and exclude unreliable expert
opinion evidence and expert opinion of unknown reliability was not restricted to
jurisdictions without reliability-based admissibility standards.2
In the common law tradition, the trial and appellate judges responsible for the
admission and review of incriminating expert opinion evidence are almost
entirely dependent on the parties for the evidence brought before them.3The main
problems for accusatorial criminal justice systems, given the dependence on inter-
ested parties of markedly different resources and abilities, are how courts (and
fact-finders) obtain information about the representativeness, quality and,
ultimately, probative value of techniques and derivative opinion, and how should
scientific, technical and experiential knowledge claims be presented and
contested before, and evaluated by, lay participants?4
264 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
ADVICE FOR THE COURTS?
SUFFICIENTLY RELIABLE
ASSISTANCE WITH FORENSIC SCIENCE
T
1 Many past convictions have relied (at least in part) upon expert opinions derived using unreliable
techniques or opinions expressed in terms that are difficult to reconcile with what was known
empirically.
2 G. Edmond, ‘Is Reliability Sufficient? The Law Commission and Expert Evidence in International
and Interdisciplinary Perspective (Part 1)’ (2012) 16 E&P 30 (hereafter ‘Part 1’).
3 There may be scope at common law, or provision under statute, for court-appointed experts and/or
special masters, but they are very rarely engaged. For a recent indication of reticent responses to
experimental psychological research and some of the limits on current approaches to taking
‘judicial notice’, see Aytugrul vThe Queen [2012] HCA 15.
4 This article is primarily oriented to the first question. Some issues relating to the second question
are discussed in ‘Impressions and Expressions’ (2012) 44 Australian Journal of Forensic Sciences
(forthcoming) and (2012) 10 Law, Probability & Risk (forthcoming).
For a variety of reasons parties to litigation are not always capable of providing
relevant, let alone balanced and elucidatory, information about the reliability of
expert opinion evidence. There is, in addition, a tendency for lawyers and judges
steeped in the common law tradition to focus on legal authority, past practiceand
earlier interpretations of rules, to the detriment of technical insights and scien-
tific knowledge. In combination with the common law’s emphasis on the
individual case, these factors have contributed to the development of practices
that are inconsistent across similar types of evidence and issues.5In criminal
proceedings, relevant scientific and technical studies—what I will describe as
exogenous knowledges—and standardised methodological techniques are infre-
quently invoked (or cited) by parties, expert witnesses and judges, and even less
frequently discussed. Admissibility decision-making is often based upon opinions
and impressions that are neither supported by research nor publication. Too often
the evidence provided by forensic scientists is developed without standardised
methods, without empirical testing and, often, with indifference to method-
ological and institutional problems (for example, the way to manage cognitive
biases or express opinions) notorious among research scientists. Compounding
these tendencies, and dampening internal interest in reform, judges tend to
maintain high levels of confidence in the efficacy of their common law processes,
particularly trial safeguards (to promote accuracy and fairness) and the ability of
jurors and appellate courts to assess and review rationally expert opinions (of
unknown probative value).6
Given these and other limitations, this article presents a proposal to enhance the
manner in which courts respond to expert opinion evidence, particularly incrimi-
nating expert opinion evidence, at the admissibility stage. That is, where judges
determine whether contested evidence should be admitted to the trial for consid-
eration by the tribunal of fact—often a jury. Unlike many other responses to
perceived problems with expertise, this proposal aims to avoid excessive inter-
ference with accusatorial trial practice while providing assistance with the
application of admissibility rules in ways that are consistent with criminal justice
principles and aspirations. It represents an attempt to improve practice largely
within existing common law frameworks.7In addition, the proposal is developed
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 265
ADVICE FOR THE COURTS?
SUFFICIENTLY RELIABLE
ASSISTANCE WITH FORENSIC SCIENCE
5 Approaches to the same kinds of evidence across jurisdictions and to similar kinds of evidence
within jurisdictions seem to be incoherent, see G. Edmond, S. Cole, E. Cunliffe (and A. Roberts),
‘Admissibility Compared’, paper presented at Law & Society Conference, San Francisco, 2011.
6 See Part 1; G. Edmond and A. Roberts, ‘Procedural Fairness, the Criminal Trial and Forensic Science
and Medicine’ (2011) 33 Sydney L Rev 359; G. Edmond and M. San Roque, ‘The Cool Crucible:
Forensic Science Evidence and the Frailty of the Criminal Trial’ (2012) 23 Current Issues in Criminal
Justice (forthcoming).
7 It is not intended as a defence of these frameworks, or associated traditions and assumptions.
To continue reading
Request your trial