Professor  Gary  Edmond  Director,  Program  in    Exper7se,  Evidence  &  Law  Director  of  Postgraduate  Research   School  of  Law  

Forensic science evidence and accusatorial justice

‘Lessons’ for forensic nurses?

Kaye  Ballantyne,  Senior  Research  &  Development  Officer  Victoria  Police  Emma  Cunliffe  Associate  Professor,  Allard  School  of  Law,  UBC  Gary  Edmond,    Professor  &  ARC  Future  Fellow,  Faculty  of  Law  UNSW  Bryan  Found,  Professor  &  Chief  Forensic  ScienFst,  Victoria  Police  David  Hamer,  Associate  Professor,  Law  School,  University  of  Sydney  Brynn  Hibbert,  Emeritus  Professor  School  of  Chemistry,  UNSW  Richard  Kemp,  Associate  Professor  School  of  Psychology,  UNSW                          Andrew  Ligertwood,  Emeritus  Fellow,  Adelaide  Law  School  Kristy  Mar7re,  ARC  DECRA  Fellow  School  of  Psychology,  UNSW  Gianni  Ribeiro,  PhD  Candidate  School  of  Psychology,  UQ  Andrew  Robert,  Senior  Lecturer,  Law  School,  University  of  Melbourne  Mehera  San  Roque,  Senior  Lecturer  Faculty  of  Law,  UNSW  Rachel  Searston,  PhD  Candidate  School  of  Psychology,  UQ  Jason  Tangen,  Senior  Lecturer  School  of  Psychology,  UQ  MaMhew  Thompson,  Post-­‐Doctoral  Fellow,  School  of  Psychology,  UQ  David  White,  Post-­‐Doctoral  Fellow,  School  of  Psychology,  UNSW  Rachel  Dioso-­‐Villa,  Lecturer,  School  of  Criminology  &  Criminal  JusFce,  Griffith  University  

Evidence-­‐  Based  

Forensics  IniFaFve  

 

   

1.  Introduction

2.  Admissibility rules for expert opinion evidence

3.  Responsibilities of expert witnesses

4.  Introduction to the forensic sciences and emerging issues

5. Some concluding thoughts

 

   

2. Admissibility rules for expert

opinion evidence

     

Main goals of the accusatorial trial

•  Accurate outcome (or rectitude) •  Fairness (evidence and process)

i.e. ‘truth and justice’ •  Avoid convicting the innocent

(n guilty men) •  Scope for public‘participation’ • and increasingly‘efficiency’ Civil trials are also concerned with rectitude.

Admissibility under the Uniform Evidence Law (UEL)

76 Opinion Rule: opinion evidence is presumptively inadmissible

79 Exception: opinions based on specialised knowledge (1) If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

NOT opinion based on experience

‘specialised knowledge’ ≠ experience

     

Dasreef v Hawchar [2011] HCA 21 ‘A failure to demonstrate that an opinion expressed by a witness is based on the witness’s specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight.’

     

Honeysett v The Queen [2014] HCA 29, [23]

“Specialised knowledge” is to be distinguished from matters of "common knowledge”. … It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience. However, the person’s training, study or experience must result in the acquisition of knowledge. The Macquarie Dictionary defines “knowledge” as “acquaintance with facts, truths, or principles, as from study or in investigation” (emphasis added) and it is in this sense that it is used in s 79(1). The concept is captured in Blackmun J’s formulation in Daubert: “the word ‘knowledge’ connotes more than subjective belief or unsupported speculation. … [It] applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds”.

     

Hillstead v R [2005] WASCA 116 It is a primary duty imposed on experts in giving opinion evidence to furnish the trier of fact with the criteria to enable the evaluation of the expert conclusion: Makita (Australia) Pty Ltd v Sprowles. … The ‘bare ipse dixit’ of a scientist upon an issue in controversy should carry little weight: Davie v Magistrates of Edinburgh (1953).

 

   

Tuite v The Queen [2015] VSCA 148

A challenge to STRmix – used for mixed DNA profiles – via UEL s137.

Maxwell P, Redlich and Weinberg JJA: ‘The obvious risk in a criminal trial when expert evidence is led from a forensic scientist is that a jury will give the evidence more weight than it deserves. To prevent unfair prejudice of that kind, it is essential that the reliability of expert evidence be established to the court’s satisfaction (under s 137) before it is led. We have concluded that the touchstone of reliability for this purpose is proof of appropriate validation, both of the underlying science (where necessary) and of the particular methodology being employed.’

 

   

3. Responsibilities of expert witnesses

     

Practice Directions: Expert Evidence in Criminal Trials (Victoria, 2014)

Purpose To enhance the quality and reliability of expert evidence relied on by the prosecution and the accused in criminal trials … Expert’s duty to the Court 2.1 An expert has an overriding duty to assist the Court impartially, by giving objective, unbiased opinion on matters within the expert’s specialised knowledge. 2.2 This duty overrides any obligation to the commissioning party or to the person by whom the expert is paid.

Practice Directions: Content of all expert reports

4.1 All expert reports to which this Practice Direction applies (including primary expert reports and responding expert reports) shall state the opinion or opinions of the expert and shall state, specify or provide— … (c) whether and to what extent the opinion(s) in the report are based on the expert’s specialised knowledge, and the training, study experience on which that specialised knowledge is based;

(d) the material, observed facts, reported facts, assumed facts and other assumptions on which each opinion expressed in the report is based (a letter of instructions may be annexed); …

(f) (if applicable) that a particular question, issue or matter falls outside the expert's specialised knowledge;

(g) any examinations, tests or other investigations on which the expert has relied, identifying the responsible laboratory by which, and the relevant accreditation standard under which, the examination, test or other investigation was performed; …

Practice Directions: Content of all expert reports

4.1 All expert reports … shall state, specify or provide— (i) any qualification of an opinion expressed in the report, without which the report would or might be incomplete or misleading; (j) any limitation or uncertainty affecting the reliability of

(i) the methods or techniques used; or (ii) the data relied on, to arrive at the opinion(s) in the report; and

(k) any limitation or uncertainty affecting the reliability of the opinion(s) in the report as a result of—

(i) insufficient research; or (ii) insufficient data.

     

Practice Directions: Content of all expert reports 4.2 Where an expert is aware of any significant and recognised disagreement or controversy within the relevant field of specialised knowledge, which is directly relevant to the expert’s ability, technique or opinion, the expert must disclose the existence of that disagreement or controversy.

 

   

4. Introduction to the forensic

sciences and emerging issues (What do independent scientists, engineers and biomedical researchers have to say about latent fingerprints, ballistics, tool marks, bite marks, hair, document, voice and image comparisons and so on?)

             

Recent reports: since 2009

NAS, Strengthening forensic science in the United States: A path forward (2009)

• Background: fingerprint errors and DNA exonerations (innocence projects).

• National Academy of Sciences (NAS) – National Research Council.

• Congressionally funded. • Multidisciplinary committee:

statisticians, a senior federal judge (Edwards), a chemist, forensic scientists, an engineer, biologists, computer scientists, a medical examiner and law professors.

• Two year inquiry (2007-2009): submissions and hearings.

• 13 Recommendations.

 

   

Using forensic science: Guiding principles

‘Two very important questions should underlie the law’s admission of and reliance upon forensic evidence in criminal trials: (1) the extent to which a particular forensic discipline is founded on a reliable scientific methodology that gives it the capacity to accurately analyze evidence and report findings and (2) the extent to which practitioners in a particular forensic discipline rely on human interpretation ...’

National Academy of Sciences, Strengthening Forensic Science in the United States (2009)

 

   

 

Validation of techniques ‘The simple reality is that the interpretation of forensic evidence is not always based on scientific studies to determine its validity. This is a serious problem. … there is a notable dearth of peer-reviewed, published studies establishing the scientific bases and validity of many forensic methods.’

Na7onal  Academy  of  Sciences,  Strengthening  Forensic  Science  in  the  United  States  (2009).        

 

   

 

Absence of validation – implications ‘With the exception of nuclear DNA analysis … no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.’

(i.e. latent fingerprints*, shoe, foot, ear, tyre, bite mark, hair, fibre, soil, ballistics, handwriting, voice and image comparisons and so on).

Na7onal  Academy  of  Sciences,  Strengthening  Forensic  Science  in  the  United  States  (2009).        

 

   

Accuracy, uncertainty and errors ‘Few forensic science methods have developed adequate measures of the accuracy of inferences made by forensic scientists. All results for every forensic science method should indicate the uncertainty in the measurements that are made, and studies must be conducted that enable the estimation of those values.’

National Academy of Sciences, Strengthening Forensic Science in the United States (2009).

 

   

Terminology and expressions

‘many terms are used by forensic examiners in reports and in court testimony … Such terms include … “match,” “consistent with,” “identical,” “similar in all respects tested,” and “cannot be excluded as the source of.” … the forensic science disciplines have not reached agreement or consensus on the precise meaning of any of these terms. This imprecision in vocabulary stems in part from the paucity of research’.

National Academy of Sciences, Strengthening Forensic Science in the United States (2009).

Recommendation 3.7: Because empirical evidence and statistical reasoning do

not support a source attribution to the exclusion of

all other individuals in the world, latent print examiners should not report or testify,

directly or by implication, to a source attribution to the exclusion of all others.

NIST & NIJ, Latent Print Examination (2012)

 

   

 

Standards ‘Often there are no standard protocols governing forensic practice in a given discipline. And, even when protocols are in place, they often are vague and not enforced in any meaningful way. … These shortcomings obviously pose a continuing and serious threat to the quality and credibility of forensic science practice.’    Na7onal  Academy  of  Sciences,  Strengthening  Forensic  Science  in  the  United  States  (2009)        

 

   

Human factors

‘Some initial and striking research has uncovered the effects of some biases in forensic science procedures ... The forensic science disciplines are just beginning to become aware of contextual bias and the dangers it poses. The traps created by such biases can be very subtle, and typically one is not aware that his or her judgment is being affected.’

National Academy of Sciences, Strengthening Forensic Science in the United States (2009).

See also Expert Working Group, Latent Print Examination and Human Factors: Improving the Practice through a Systems Approach (US National Institute of Standards and Technology & National Institute of Justice, 2012).

 

   

 

   

5.  Concluding remarks

(It’s in your hands)

 

   

‘The report finds that the existing legal regime—including the rules governing the admissibility of forensic evidence, the applicable standards governing appellate review of trial court decisions, the limitations of the adversary process, and judges and lawyers who often lack the scientific expertise necessary to comprehend and evaluate forensic evidence—is inadequate to the task of curing the documented ills of the forensic science disciplines.’

National Academy of Sciences, Strengthening Forensic Science in the United States (2009)

See also: Law Commission of England and Wales, Expert evidence in criminal proceedings in England and Wales (2011); and The Rt Hon Sir Brian Leveson, Review of the Effectiveness of Criminal Justice (London, 2015).

 

   

•  What kinds of evidence are you proffering – fact or opinion? (Might be better to restrict yourselves to ‘facts’.)

•  If you express opinions you need to identify ‘specialised knowledge’ – i.e. research. Experience is not enough.

•  It’s not about winning or obtaining convictions. As expert witnesses forensic nurses are NOT part of the prosecution ‘team’.

•  Your primary duties are to the court, not to victims or complainants.

•  Expected to provide high quality, impartial evidence. •  Would your report look different if you were working for the

defence? Why? •  Forensic nurses must consider human factors and

address dangers raised by cognitive biases and orientation. Don’t model yourselves on the forensic ‘sciences’.

           

Reliability is the most important issue for scientific (and non-scientific) expert opinion evidence in criminal justice settings.

Can you do what you claim and how do we know? How accurate are you and how do we know? What are the limitations with your techniques?

In the absence of this information, it is far from obvious that opinions are actually expert or susceptible to rational evaluation.

     

If you are not basing opinions on ‘specialised knowledge’ and disclosing assumptions, limitations, problems, difficulties, uncertainties, the lack of validation, and exogenous criticisms then:

•  What do you think your role is? •  Are you omitting or suppressing relevant

information? •  Are you usurping the role of the fact-finder

(whether judge or jury). •  What about the Practice Note and your

professional responsibilities? How do the need for impartiality, objectivity, and your overriding duty to the court influence practice?

     

‘How to cross-examine forensic scientists: A guide for lawyers’ (2014) 39 Australian Bar Review 174. ‘What lawyers should know about the forensic “sciences”’ (2015) 36 Adelaide Law Review 33. ‘Model forensic science: Reflections on “How to cross-examine forensic scientists” for forensic practitioners and prosecutors’ (2016) 48 Australian Journal of Forensic Sciences (forthcoming).

For further information

g.edmond@unsw.edu.au

 

   

Thank you