Professor Gary Edmond School of Law Program on Expertise, Evidence Law

1. Professor Gary Edmond School of Law & Program on Expertise, Evidence & Law First of all I would like to thank the organising committee for the invite. It’s a great privilege to come along and speak today. First of all I would like to thank the organising committee for the invite. It’s a great privilege to come along and speak today.

2.  • Factual rectitude • Fairness to all parties, but particularly those accused of criminal acts • Truth and fairness. • This is why we have an asymmetrical approach that is theoretically skewed in favour of the accused. I want to suggest that this misrepresents the modern trial and that emerging research suggests that many of the protections and safeguards are ineffective or weak and where they do work, they tend to work quite inefficiently. • Factual rectitude • Fairness to all parties, but particularly those accused of criminal acts • Truth and fairness. • This is why we have an asymmetrical approach that is theoretically skewed in favour of the accused. I want to suggest that this misrepresents the modern trial and that emerging research suggests that many of the protections and safeguards are ineffective or weak and where they do work, they tend to work quite inefficiently.

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4.  Many of their attempts have been derivative. That is, they follow admissibility challenges in other jurisdictions – particularly the US and UK. 2. The second point is important because it raises the question of who should regulate the forensic sciences and what should forensic scientists do in response to judicial weakness and limitations. Many of their attempts have been derivative. That is, they follow admissibility challenges in other jurisdictions – particularly the US and UK. 2. The second point is important because it raises the question of who should regulate the forensic sciences and what should forensic scientists do in response to judicial weakness and limitations.

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6.  Traditionally, incriminating expert opinion evidence is admitted because the adversarial trial is conceived in a way that affords a variety of protections and safeguards to the accused. These range from rules of evidence, to the right to cross-examine witnesses and providing the possibility of judicial review. I want to suggest, that when in comes to incriminating expert evidence, that is expert evidence adduced by the prosecutor, these various rules and safeguards do not work well individually or in combination. Legal limitations, I will suggest, make the need for reliable forensic science more important than they might be if the adversarial trial worked in the way that judges suggest it does.Traditionally, incriminating expert opinion evidence is admitted because the adversarial trial is conceived in a way that affords a variety of protections and safeguards to the accused. These range from rules of evidence, to the right to cross-examine witnesses and providing the possibility of judicial review. I want to suggest, that when in comes to incriminating expert evidence, that is expert evidence adduced by the prosecutor, these various rules and safeguards do not work well individually or in combination. Legal limitations, I will suggest, make the need for reliable forensic science more important than they might be if the adversarial trial worked in the way that judges suggest it does.

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9.  Perfunctory. Perfunctory.

10.  Perfunctory. Perfunctory.

11.  NO place for this under the act. What is the specialised knowledge? If we watch incriminating images enough or listen to covert recordnigs we all become ‘experts’. Recourse to the concept of the ad hoc expert – that is, amateurs who become ‘experts’ through repeated exposure to voice recording or images – should be abandoned. Expediency and convenience, or even concerns about efficiency, should not overcome the more fundamental question of reliability and the difficulty of practically contesting this evidenceNO place for this under the act. What is the specialised knowledge? If we watch incriminating images enough or listen to covert recordnigs we all become ‘experts’. Recourse to the concept of the ad hoc expert – that is, amateurs who become ‘experts’ through repeated exposure to voice recording or images – should be abandoned. Expediency and convenience, or even concerns about efficiency, should not overcome the more fundamental question of reliability and the difficulty of practically contesting this evidence

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16.  Why the variation? Is the individual an expert? Is there a demonstrably reliable method? What would the individual say if no legal restraints? Why the variation? Is the individual an expert? Is there a demonstrably reliable method? What would the individual say if no legal restraints?

17.  Ignitable liquids standard and a fire examiner indicated to the committee that what they meant by a match was different to what the fingerprint examiners meant. But that the jury understood what they meant. In the same arson case a jury may well hear evidence about a the presence of ignitable liquids ‘matching’ some profile and a fingerprint on a fuel can that matched the accused, and the jury be expected to know the difference. Things only get more complicated were we to have a bite mark included. This chart is interesting, because it suggests a disjuncture between the expression and the reception. The lack of validation only accentuates that position. There is a need for standardisation. And, there is a need for research into jury understadning. Persoanlly, I think that forensaic scientists should not try to second guess the trial. They should base their expressions on evidence and leave it to the courts to require something different. Though, forensic scientists should be willing to contest legal responses and should not drop below their empircially-based expressions regardless of what courts allow.Ignitable liquids standard and a fire examiner indicated to the committee that what they meant by a match was different to what the fingerprint examiners meant. But that the jury understood what they meant. In the same arson case a jury may well hear evidence about a the presence of ignitable liquids ‘matching’ some profile and a fingerprint on a fuel can that matched the accused, and the jury be expected to know the difference. Things only get more complicated were we to have a bite mark included. This chart is interesting, because it suggests a disjuncture between the expression and the reception. The lack of validation only accentuates that position. There is a need for standardisation. And, there is a need for research into jury understadning. Persoanlly, I think that forensaic scientists should not try to second guess the trial. They should base their expressions on evidence and leave it to the courts to require something different. Though, forensic scientists should be willing to contest legal responses and should not drop below their empircially-based expressions regardless of what courts allow.

18.  • Cross-examination tends to operate inconsistently. It can be a fantastic way of exposing problems. Typically it is not. Cross-examination rarely achieves these lofty heights. • Depends on the competence and resources available to the lawyer. • We should not forget that protections such as cross-examination are not available where system concerns with efficiency seek pleas and negotiaitons.• Cross-examination tends to operate inconsistently. It can be a fantastic way of exposing problems. Typically it is not. Cross-examination rarely achieves these lofty heights. • Depends on the competence and resources available to the lawyer. • We should not forget that protections such as cross-examination are not available where system concerns with efficiency seek pleas and negotiaitons.

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20.  Describe case of police surveillance, not needed, defence expert wanted to explain limitations with this evidnece and possibly biases.Describe case of police surveillance, not needed, defence expert wanted to explain limitations with this evidnece and possibly biases.

21.  * Legal formalism: assumed to work. • There is little evidence that judicial directions, instructions and warnings are understood, let alone acted upon. * Legal formalism: assumed to work. • There is little evidence that judicial directions, instructions and warnings are understood, let alone acted upon.

22.  • Lay jury ability an open question. • Lay jury ability an open question.

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26.  There has been a lot of discussion about the NRC Report. However, I want to raise its implications for law and legal practice rather than the forensic sciences. There are two main issues for law. First, are the forensic sciences really science and can we rely on their knowledge products.There has been a lot of discussion about the NRC Report. However, I want to raise its implications for law and legal practice rather than the forensic sciences. There are two main issues for law. First, are the forensic sciences really science and can we rely on their knowledge products.

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29.  The second, is a little closer to home. Here, the lawyers get a sense of what the forensic scientists experience. The Report can be read as a serious critique of law and legal practice. So notwithstanding Daubert, the Committee expressed scepticism about the ability of lawyers and judges to usefully respond to the problems with forensic science and medicine. As I’ll explain, I’m not particularly sanguine about the possibility of reform, but in the short to medium term we really require lawyers and judges, and policy makers, to intervene. The second, is a little closer to home. Here, the lawyers get a sense of what the forensic scientists experience. The Report can be read as a serious critique of law and legal practice. So notwithstanding Daubert, the Committee expressed scepticism about the ability of lawyers and judges to usefully respond to the problems with forensic science and medicine. As I’ll explain, I’m not particularly sanguine about the possibility of reform, but in the short to medium term we really require lawyers and judges, and policy makers, to intervene.

30. (Note 1st, 2nd and 5th issues. Invalid forensic science evidence often inappropriately corroborates mistaken eyewitness evidence).

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33. Other proposals for reform Court-appointed experts (or expert panels) Science courts Technically trained judges Single joint experts or parties’ single expert Concurrent evidence* (the ‘hot tub’) Pre-trial meetings (without lawyers) Codes of conduct* Inquisitorially-oriented and/or targeted toward bias rather than validity and reliability. Suitability to adversarial criminal trial unclear. Simplistic models of science and expertise, tended to be designed to simplify proceedings or make proceedings more efficient rather than improve accuracy or legitimacy of decision making.Simplistic models of science and expertise, tended to be designed to simplify proceedings or make proceedings more efficient rather than improve accuracy or legitimacy of decision making.

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38.  Civil casesCivil cases

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40.  CL like Adamcik. Robb where a linguist gives evidence against the great weight of opinion No smith case.CL like Adamcik. Robb where a linguist gives evidence against the great weight of opinion No smith case.

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