Is Reliability Sufficient? The Law Commission and Expert Evidence in International and Interdisciplinary Perspective (Part 1)
| Author | Gary Edmond |
| DOI | 10.1350/ijep.2012.16.1.391 |
| Published date | 01 January 2012 |
| Date | 01 January 2012 |
| Subject Matter | Article |
IS RELIABILITY SUFFICIENT? THE LAW COMMISSION AND EXPERT EVIDENCE
Is reliability sufficient?
The Law Commission
and expert evidence in
international and
interdisciplinary
perspective (Part 1)
By Gary Edmond*
Professor and Director, Expertise, Evidence & Law Program, School
of Law, The University of New South Wales
Abstract This article offers a critical appraisal of the Law Commission’s Report,
Expert Evidence in Criminal Proceedings in England and Wales (2011), and related
proposals for reform. Drawing upon interdisciplinary research and empirical
studies from other common law jurisdictions it suggests that the introduction
of a reliability-based admissibility standard for expert opinion evidence, even in
conjunction with provision for recourse to court-appointed experts, is unlikely
to generate the kinds of changes required to improve the quality of incrimi-
nating forensic science and medicine evidence or align criminal justice practice
with espoused goals and principles.
Keywords Law and science; Forensic science; Expertise; Admissibility; Daubert;
Reform; Trial safeguards; Proof
doi:10.1350/ijep.2012.16.1.391
30 (2012) 16 E&P 30–65 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
* Email: g.edmond@unsw.edu.au. This research was supported by the ARC (FT0992041). Thanks to
Mehera San Roque, Mike Redmayne, Andy Roberts, Paul Roberts, Tony Ward, Jenny McEwan and
anonymous referees for commenting on a long draft.
here are serious problems with expert evidence in England and Wales.1
For a system that purports to be rational and just, in response to many
types of expert opinion, English common law jurisprudence and practice
has become something of an embarrassment. The Law Commission’s Consultation
Paper and more recent report on Expert Evidence in Criminal Proceedings in England
and Wales are therefore very timely interventions.2While the Law Commission
does not necessarily portray English law and the problems with expert evidence,
particularly forensic science and medicine, in such unflattering terms, it concedes
that too much unreliable expert opinion evidence is currently being admitted in
criminal proceedings and occasionally questions the value of elements of the
adversarial trial. In consequence it recommends a range of reforms, with a
renewed emphasis on reliability and increased use of a new statutory power to
appoint an expert as the centrepieces.
The Law Commission’s Report represents an important response to continuing
problems with expert evidence. Notwithstanding this contribution, this article
attempts to engage critically and constructively with the Report and its recom-
mendations. This article is divided into two parts. Part 1 explores some of the
limitations with the recommendations and endeavours to place them in a more
conceptually robust, and principled, adversarial framework. Part 2, to be
published separately, considers mechanisms for improving the quality of expert
opinion evidence within the bounds of the accusatorial trial and the aims of
common law criminal justice systems.3
1. The Law Commission Report and its recommendations
Our proposed reforms would introduce a framework for effectively
challenging the admissibility of expert opinion evidence in any appropriate
case and a basis for being able properly to investigate and determine
evidentiary reliability. (5.83;4italics added)
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 31
IS RELIABILITY SUFFICIENT? THE LAW COMMISSION AND EXPERT EVIDENCE
T
1 See e.g. M. Redmayne, Expert Evidence and Criminal Justice (Oxford University Press: Oxford, 2001); A.
Roberts, ‘Drawing on Expertise: Legal Decision-making and the Reception of Expert Evidence’
[2008] Crim LR 443.
2 Law Commission, The Admissibility of Expert Evidence in Criminal Proceedings in England and Wales: A New
Approach to the Determination of Evidentiary Reliability, Law Com. Consultation Paper No. 190 (2009),
available at <http://www.justice.gov.uk/lawcommission/docs/cp190_Expert_Evidence_ Consultation.
pdf>, accessed 10 October 2011; Law Commission, Expert Evidence in Criminal Proceedings in England and
Wales, Law Com. Report No. 325 (2011) (hereafter ‘Report’), available at <http://www.justice.gov.uk/
lawcommission/publications/expert-evidence.htm>, accessed 10 October 2011.
3 G. Edmond, ‘Advice for the Courts? Sufficiently Reliable Help with Forensic Science and Medicine
(Part 2)’ (2012) 16 E&P (forthcoming).
4 Unless otherwise stated, references are to paragraphs in the Report.
The recommendations in the Report purport to codify the English common law
and combine it with an explicit reliability standard in order to regulate the
admission of all expert opinion evidence in criminal proceedings.5The aim is to
produce ‘a new, critical approach to expert evidence (supported by appropriate
training for legal practitioners and the judiciary)’ (8.2). This new approach is
intended to provide a framework that enables lawyers to ‘effectively challenge’
expert opinion evidence in order to ‘properly’ evaluate ‘evidentiary reliability’
before it is placed before a jury (1.27).
The main reason (provided) for the proposed reforms, particularly the renewed
focus on reliability, is the overly inclusive approach to admissibility associated
with current practice:
… a number of recent criminal cases suggest that expert opinion
evidence of doubtful reliability is being proffered for admission, and
placed before the jury, too readily. This follows from the current
laissez-faire approach to admissibility. It has even been suggested that
there may be a ‘culture of acceptance’ on the part of some trial judges,
particularly in relation to evidence of a scientific nature. (1.17, 1.27,
3.3)
According to the Report, expert opinion evidence has been ‘admitted in criminal
proceedings too readily and with insufficient scrutiny’ (1.2). We are told that there
had ‘until recently been very little authority for the view that a trial judge should
enquire into evidentiary reliability as a matter bearing on admissibility’ (6.10).
There is, accordingly, a need for ‘a more critical approach on the part of some
judges to the evidence placed before them’ (1.42).
Renewed focus on reliability at the admissibility stage is presented as the primary
response to continuing problems with expert opinion evidence in criminal
proceedings.
(a) Reliability
Given the tenor of the ensuing discussion, it is useful to note—as the Report
does—that the idea of ‘reliability’ is not entirely absent from common law admissi-
bility jurisprudence.6The Court of Appeal (Criminal Division) has, for example:
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IS RELIABILITY SUFFICIENT? THE LAW COMMISSION AND EXPERT EVIDENCE
5 I am not addressing the issue of expert evidence of fact. On the distinction, see Report, 2.19–2.23.
6 See I. Dennis, The Law of Evidence, 4th edn (Sweet & Maxwell: London, 2010); P. Roberts and A.
Zuckerman, Criminal Evidence, 2nd edn (Oxford University Press: Oxford, 2010).
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