Guilty until proven innocent

By Anna Sandiford 14/02/2011

A lack of accreditation of expert witnesses means that anyone with a scientific background and sufficient ‘brass neck’ could set themselves up as a forensic science expert and mislead the court“. So warns Lord Justice Leveson, an English Court of Appeal Judge. It has already happened: Gene Morrison. Originally jailed for 5 years various offences after he masqueraded as a forensic scientist for many years, he is now imprisoned for an indeterminate period for child sex offences. OK, so he’s an extreme example, but who is checking the standard of forensic scientists and the science they are presenting in court?

Many will say that the court itself is the place for establishing whether or not a scientist and their report is appropriate for a given case.  However, is that a good use of court time?  If it is, who should be making that judgement?  Can we realistically expect lawyers to be able to tell whether the science in a case is appropriate?  The whole point of expert witnesses is to provide information to the court that is outside the general knowledge of the triers of fact: the judge and jury.  Unless they have a working knowledge of, for example, mixed DNA profiles in a sample being separated using a combination of LCN, Y-STR and  SGM+, how are they to know that what is being presented is full, fair and accurate?  And that’s before we even get to see what is in the scientist’s casefile.  There is often information in the casefile that is hugely informative but this information is not made available – it has to be requested.  If you don’t know what to ask for, you won’t get what you need.

An article in the December 2010 issue of North & South is entitled “Guilty until proven innocent.“  The article describes three examples of miscarriages of justice in New Zealand.  An extract from that article reads, “The three cases examined in this story exhibit some of the classic traits of miscarriages of justice worldwide: police tunnel vision, witholding of evidence, false witness identification or memory, incorrect or overemphasised expert evidence and poor legal representation.“  As an Expert Witness working in the independent sector, it is my job to look at scientific evidence to see if it is incorrect or overemphasised of even if there is something that hasn’t previously been considerd for a variety of reasons. In some cases, there’s nothing of concern with the science. In others, the issues relate to scientific results that are in the casefiles but not immediately apparent in the reports.  In other cases, it’s scientific methodology.  For yet others, it could be that the Defendant wants his account of events to be considered but this hasn’t previously been presented to the Crown’s experts.  There are many reasons.

I am passionate about accuracy and fairness of science in the courtroom; if we use science as part of a case to convict someone of a crime then that science must be correctly reported.  It is not the job of an expert witness to have an opinion on whether or not the defendant is guilty; that is the job of the court.  Although accreditation of individual expert witnesses alone will not solve all the issues of incorrect or overemphasised expert evidence, it is a start and, in my opinion, should form at least part of the standards for allowing people to give evidence in court as expert witnesses.

0 Responses to “Guilty until proven innocent”

  • I can understand the desire to want to establish standards for the profession, but I think the devil will always be in the detail, and there’re plenty of egos in any profession which are capable or ruining a perfectly egalitarian concept.

    For instance, whom sets the standards by which practitioners are to be assessed? Often the leaders of standards organisations are less active in practice than those they are trying to regulate; they are biased toward standardising on the paradigm of education under which they trained (the osteopathic/DO vs. alllopathic/MD medical divide in the US is a salient example of this). Will standardisation lead to a greater educational focus on accreditation learning objectives, and a lesser focus on research?

    Aside from these practical concerns, there are also some philosophical ones. Standardisation and licensing bodies add costs to practitioners, and therefore to clients; they potentially reduce client access due to increased costs and/or reduced practitioner numbers/availability. Standards have the ability to stagnate progress, and the focus of standarised learning/experience objectives can lag behind-the-times.

    How about this novel idea: In a world where the courts are truely concerned about a scientific approach, objectivity, reproducibility, and justice, why don’t we double-blind the system and forensic practitioners to whom they are contracted to- allow practitioners to come to a conclusion about the evidence without being influenced by the knowledge of whom they are defending?

  • I agree with the issues and problems you highlight – it’s always been a difficult road to travel – how do we set standards that are realistic, up-to-date, don’t restrict access to good science and don’t restrict development and still keep the charlatans or substandard science out of the courts?
    It would be great to have a double-blind system similar to what you describe but again there are many problems with that as well. The testing of a set of information by separate scientists to see if they come up with the same conclusions is, I suppose, how the system is meant to work at the moment: an expert instructed by the Prosecution and an expert instructed by the Defence, both scientists supposedly being impartial and making an assessment based only on the information they receive. At the moment, this is the system we have but it relies on the court also being balanced in its approach in terms of allowing each scientist an equal voice and also understanding and accepting that there is a need for two scientific voices in a case, not just assuming that the one they hear first is 100% correct.
    I think there are at least two issues here – all are complicated but for me, transparency in how any scientist gets to their end conclusions is very important.