text:
DR. FREDDY PATEL; MEDICAL COUNCIL SUSPENDS HIM FOR FOUR MONTHS; MEANWHILE HIS WORK IS BEING PROBED IN IAN TOMLINSON INQUEST; THE INDEPENDENT;
"The period of your suspension will be four months. Such an order adequately addresses the findings of dishonesty and addresses the public interest, which includes maintaining of public confidence in the medical profession and declaring and upholding proper standards of conduct and behaviour."
THE INDEPENDENT;
"The mother of another of Hardy's victims condemned the panel's sanction, saying her family were "disgusted and horrified" that he had not been struck off.
Jackie Valad believes her daughter Elizabeth would still be alive if Patel had not concluded in his initial report that White had died of natural causes, because a police investigation would have been launched.
Hardy was sectioned but released later that year and went on to kill Valad, 29, and Bridgette Maclennan, 34, both sex workers. In November 2003, he was given three life sentences."
REPORTER JAMES MEIKLE; THE GUARDIAN;
PUBLISHER'S NOTE: The Charles Smith saga - called by the Globe and Mail a series of earthquakes which exploded under Ontario's criminal justice system - has underlined the enormous harm that can be caused by an incompetent pathologist who is used to investigate criminal cases by the State. One of its lessons is that medical licensing bodies such as the Ontario College of Physicians and Surgeons in Ontario and the British Medical Council must scrutinize allegations made against such pathologists extremely carefully and hold them strictly to account where misconduct is found - that's what protecting the public is all about. Does this punishment protect the public? See this Blog over the next few days. I'm pondering...
"A pathologist found guilty of serious misconduct over his post-mortem examination reports into the death of a victim of so-called "Camden Ripper" Anthony Hardy was suspended for four months today," the Independent story published earlier today under the heading, "Pathologist Freddy Patel handed suspension," begins.
"Dr Freddy Patel, 63, who was criticised over his part in the investigation into the death of Ian Tomlinson during the G20 protests, omitted autopsy findings which he considered not "relevant" when examining the body of 31-year-old prostitute Sally White," the story continues.
"A General Medical Council (GMC) panel ruled earlier this month that his fitness to practise was impaired and found him guilty of dishonesty regarding his CV.
It has now concluded that his behaviour was "fundamentally at odds" with the role and responsibilities expected of a doctor.
It said: "The Panel has determined that a period of suspension of your registration is appropriate and proportionate in your case.
The sanctions will take effect four weeks from when Dr Patel receives written notification of his suspension.
Earlier this month, the GMC panel found 29 allegations against Dr Patel's examination of Hardy's first victim were proved.
This included the assertion that he did not properly consider the location of her clothes, blood stains on her bedding and clothes or the location and position of Ms White's body in a locked room, in the flat of a recently-arrested man.
The panel said Dr Patel had an "inflexible approach" to his autopsy conclusions and gave "superficial" consideration to the possibility she was asphyxiated, which fell "below the standard expected for a competent forensic pathologist".
Dr Patel was suspended for three months last year in relation to separate allegations.
Following this ruling, he was required to take steps to prove he could be trusted to conduct post-mortem examinations on adults, name another pathologist to review his work and improve his knowledge of the law governing autopsies.
While the panel said his efforts went "some way" towards addressing its concerns, it said "more would have to be done" for it to be satisfied that his clinical abilities were "of a sufficient standard" to practise unrestricted.
His case will be considered before his suspension ends."
The story can be found at:
http://www.independent.co.uk/life-style/health-and-families/health-news/pathologist-freddy-patel-handed-suspension-2258229.html
GUARDIAN STORY: G20 pathologist Freddy Patel suspended: Forensic examiner not allowed to practise for at least four months after botched postmortem delayed murder investigation; Reporter James Meikle;
"Pathologist Freddy Patel was suspended over his postmortem examination of 'Camden ripper' victim Pathologist Freddy Patel has been suspended due to serious misconduct over his postmortem examination of a victim of the 'Camden ripper' Anthony Hardy. Photograph: Fiona Hanson/PA
The pathologist Dr Freddy Patel whose botched postmortem examination led to a delayed murder investigation has been suspended from the medical register for at least four months.
The General Medical Council had pressed for him to be struck off but an independent fitness to practise panel in London determined that suspension for his misconduct and dishonesty would be "appropriate and proportionate".
The council said Patel, 63, had been reluctant to consider asphyxiation in the murder case, had falsified his CV and failed to redress previous shortcomings.
But lawyers for the forensic examiner argued he had taken steps to improve his professional conduct, and the panel accepted that his dishonesty fell towards the "lower end" of the spectrum.
Patel was suspended from the register for three months last September because of his performance in other cases. He has also been criticised for suggesting the newspaper seller Ian Tomlinson died of natural causes during the G20 protests in London in 2009.
Earlier this month, the disciplinary panel found Patel's 2002 reports on the death of Sally White – the first victim of the "Camden ripper" Anthony Hardy – were "irresponsible, not of the standard expected of a competent forensic pathologist and liable to bring the medical profession into disrepute".
Patel decided that White, a 31-year-old sex worker, had died of natural causes despite blood staining her clothing, bedding and a wall at Hardy's flat. Patel said she had died of a heart attack during consensual sex. This discouraged a police investigation that might have saved two later victims of Hardy, an earlier hearing was told.
Patel will not be allowed to practise until his case is reviewed and another panel is satisfied he has identified and remedied deficiencies, proven he has attended retraining courses, including on medical ethics, shadowed other pathologists and provided a satisfactory plan that might allow a supervised return to practise.
The mother of another of Hardy's victims condemned the panel's sanction, saying her family were "disgusted and horrified" that he had not been struck off.
Hardy was sectioned but released later that year and went on to kill Valad, 29, and Bridgette Maclennan, 34, both sex workers. In November 2003, he was given three life sentences.
"It is just not right," said Jackie Valad. "I am sure Elizabeth would have been alive. Hardy would have been locked up. She was so beautiful, kind and reserved. It is heart-breaking she died at such a young age."
In October, the National Police Improvement Agency removed Patel from a register of pathologists who can be used in criminal investigations. Both the agency and the Home Office declined to comment.
A spokesperson for Patel said he intended to consider the panel's decision carefully with his advisers.
"He has been asked to give evidence at the Inquest into the death of Mr Tomlinson and does not think that it would be appropriate for him to comment on his involvement before the Inquest.""
http://www.guardian.co.uk/uk/2011/mar/31/g20-pathologist-freddy-patel-suspended
PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:
For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:
http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
IAN TOMLINSON INQUEST; (MARCH 30): LINK TO THE GUARDIAN'S LIVE UP-DATE COVERAGE: AUTOMATICALLY UP-DATED EVERY MINUTE; (MARCH 30, 2011);
LINK TO THE GUARDIAN'S LIVE UP-DATE COVERAGE OF THE TOMLINSON INQUEST: (Marxh 30,2011);
http://www.guardian.co.uk/uk/blog/2011/mar/30/ian-tomlinson-inquest-live-updates
A thorough account of "The death of Ian Tomlinson" can be found on Wikipedia at:
http://en.wikipedia.org/wiki/Death_of_Ian_Tomlinson
PUBLISHER'S NOTE: If Dr. Freddy Patel had the last word, a 47-year-old newspaper vendor named Ian Tomlinson's death after he collapsed on the pavement on the fringes of protests at the G20 on April 1, 2009 would have been written off as "natural causes." However amateur video footage emerged showing him being pushed to the ground by a police officer who faces misconduct proceedings after an inquest beginning in March 2011 is completed. As noted on Wikipedia: "Ian Tomlinson (7 February 1962 – 1 April 2009) was an English newspaper vendor who collapsed and died in the City of London on his way home from work during the 2009 G-20 summit protests. A first postmortem examination indicated that he had suffered a heart attack brought on by coronary artery disease, and had died of natural causes. His death became controversial a week later when The Guardian obtained footage of his last moments, filmed by an American investment fund manager who was visiting London. The video showed Tomlinson being struck on the leg from behind by a police officer wielding an extendable baton, then pushed to the ground by the same officer. It appeared to show no provocation on Tomlinson's part—he was not a protester, and at the time he was struck, the footage showed him walking along with his hands in his pockets. He walked away after the incident, but collapsed and died moments later. After The Guardian published the video, the Independent Police Complaints Commission (IPCC) began a criminal inquiry. A second postmortem indicated that Tomlinson had died from internal bleeding caused by a blunt force trauma to the abdomen, in association with cirrhosis of the liver. A third postmortem was arranged by the defence team of the accused officer, PC Simon Harwood; the third pathologist agreed that the cause of death was internal bleeding. The Crown Prosecution Service (CPS) announced in July 2010 that no charges would be brought, because medical disagreement about the cause of the death meant prosecutors could not prove beyond a reasonable doubt that there was a causal link between the death and the alleged assault. The first pathologist, Dr Freddy Patel, was suspended for three months in August 2010 for "deficient professional performance" in several unrelated cases." As the Guardian reported on March 19, 2011, Patel, who had been previously suspended for incompetence in a series of high profile autopsies, was found guilty of professional misconduct after failing to spot that a murder victim had been suffocated. He now faces being struck off the medical register.
A disciplinary panel of the General Medical Council ruled that his "fitness to practise was impaired" because of his reluctance to consider asphyxiation in the murder case, the falsification of his professional CV, and his failure to redress previous professional shortcomings. The UK Press Association says that the inquest, "is likely to examine the actions of police, the pathologist, the coroner and independent investigators in the aftermath of Mr Tomlinson's death." The Goudge Inquiry into many of former Dr. Charles Smith's cases also examined relationships between pathologists and police - particularly a case in which Smith agreed to interview a woman, suspected of murdering her baby, at her home while fully aware that the home had been secretly bugged by the authorities. The inquest is expected to last six weeks. This Blog will follow it closely.
IAN TOMLINSON INQUEST; LINK TO THE GUARDIAN'S LIVE UP-DATE COVERAGE: AUTOMATICALLY UP-DATED EVERY MINUTE;
PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:
THOMAS HAYNESWORTH; DEFENCE AND STATE LAWYERS SAY HE IS ACTUALLY INNOCENT; BUT WILL THE VIRGINIA COURT OF APPEALS?; RICHMOND TIMES-DISPATCH REPORT;
"A three-judge panel of the Virginia Court of Appeals in Richmond asked some tough questions of his lawyers and a representative of the Virginia Attorney General's Office in a hearing on Haynesworth's petition for writs of actual innocence.
But both sides stuck to their belief that Haynesworth is innocent of rape and other crimes in two 1984 attacks against women in Richmond's East End and eastern Henrico County.
"Our position is he is actually innocent," Alice T. Armstrong, an assistant attorney general, told the judges. "This case is unique and it is different from other actual innocence cases this court has addressed."
REPORTER FRANK GREEN; RICHMOND TIMES-DISPATCH;
"The court of appeals has granted only one writ of actual innocence, in 2008, though it has yet to free anyone from prison.
Among other things, Haynesworth must show, "no rational trier of fact could have found proof beyond a reasonable doubt based upon the newly discovered evidence."
His lawyers say that if the DNA evidence was available in 1984, no reasonable juror would have found him guilty.
Haynesworth's petition argues, "If, as the Virginia legislature plainly contemplated, there is ever to be a case for which a writ of actual innocence is granted based on non-biological evidence, this is it.""
THE INNOCENCE PROJECT;
"Thomas E. Haynesworth had a front-row seat Wednesday as lawyers argued for his exoneration in his first courtroom appearance in 27 years," the Richmond Times-Dispatch story by reporter Frank Green published earleir today under the heading, "Lawyers seek Haynesworth's exoneration," begins.
"A three-judge panel of the Virginia Court of Appeals in Richmond asked some tough questions of his lawyers and a representative of the Virginia Attorney General's Office in a hearing on Haynesworth's petition for writs of actual innocence," the story continues.
"But both sides stuck to their belief that Haynesworth is innocent of rape and other crimes in two 1984 attacks against women in Richmond's East End and eastern Henrico County.
After the hearing, Haynesworth said he was pleased, though "I was kind of anxious — back in a courtroom."
Haynesworth, after 27 years in prison, was paroled at the request of Gov. Bob McDonnell last week. He wore a new suit to the hearing and was accompanied into the small, packed courtroom by his mother, Delores Haynesworth, 67, two sisters and a niece.
It is not known when the court will rule. "I'm going to wait it out and be patient," he said afterward.
Shawn Armbrust, with the Mid-Atlantic Innocence Project, said a best guess would be six to eight weeks.
During the hearing, Judge James W. Haley Jr. asked whether a juror couldn't — even in light of new DNA and other evidence supporting Haynesworth's claims of innocence — still have sided with the victim's identification of Haynesworth and voted to convict him.
He also said he could not imagine a commonwealth's attorney who, under the same circumstances, would tell a victim she was not believable.
Peter Neufeld, a co-founder of the Innocence Project and one of Haynesworth's lawyers, said if a juror voted for conviction, "I don't believe they'd be rational."
Haynesworth must show that had the new evidence been known in 1984, "no rational trier of fact could have found proof beyond a reasonable doubt based upon the newly discovered evidence."
Neufeld also said the prosecutor would tell the victim she was mistaken, not that she was unbelievable. DNA testing has proved dozens of rape victims wrong in the identification of their attackers.
Richmond Commonwealth's Attorney Michael N. Herring, who attended the hearing, said afterward that he found it interesting that one of the judges was surprised that a prosecutor might not go forward with a case in light of the new evidence.
"I don't know of a prosecutor who would," said Herring. He said he would explain to the victim that because of the new evidence, it would not be ethical to go forward. Herring and his Henrico County counterpart, Wade Kizer, both believe Haynesworth is innocent.
Haynesworth, 46, was arrested at age 18 and convicted of various crimes in a series of rapes and other attacks on five women that occurred in early 1984.
Five women identified Haynesworth as their assailant. He was convicted in three attacks, one case was not prosecuted and he was acquitted in another.
Authorities now believe the assaults were committed by Leon W. Davis Jr., 47, a former East End resident and a rapist serving life in prison. DNA testing in 2009 and again last year proved at least two of the five victims mistook Haynesworth for Davis.
Though Davis was taller and heavier, the two men had a facial resemblance.
In 2009, Haynesworth was the first person exonerated by the Virginia Supreme Court in a writ of actual innocence based on new DNA evidence for his convictions in a Jan. 3, 1984, rape in the East End.
The other DNA testing implicating Davis was in the case for which Haynesworth was acquitted. Extensive searches by his lawyers and authorities failed to find any evidence for DNA testing in his remaining cases.
That led to Wednesday's hearing before the Virginia Court of Appeals, which considers petitions for writs of actual innocence based on non-DNA evidence. The Virginia Supreme Court considers writs based on DNA evidence.
Haynesworth lawyers, prosecutors and Virginia Attorney General Ken Cuccinelli believe the five attacks in which Haynesworth was charged — two now proved to have been committed by Davis — were committed by the same person.
They were strikingly similar to the crimes committed by Davis after Haynesworth was arrested. Haynesworth's lawyers contend the charges never would have been brought had the new evidence been known in 1984.
The Court of Appeals has granted only one writ of actual innocence, in 2008, though it has yet to free anyone from prison."
http://www2.timesdispatch.com/news/2011/mar/31/tdmain01-lawyers-seek-haynesworths-exoneration-ar-939876/
TROY DAVIS: NO PHYSICAL EVIDENCE TIES HIM TO THE CRIME; CRIMINAL JUSTICE BLOGGERS SAY GEORGIA GOVERNOR'S MERCY IS HIS "LAST AND ONLY HOPE" FOR LIFE;
"This is a very serious turn of events because this may well thwart the last appellate avenue for Troy Davis (for earlier posts on the Troy Davis case, go here). The great majority of those who testified against Mr. Davis at trial have recanted their testimony. Some of these witnesses have even gone so far as to suggest that the prosecution's star witness is the real killer here.
For many, what Troy Davis has to offer is much more than smoke and mirrors. Still, the High Court has ruled and now,the question becomes what can be done now to stop what may well be an innocent man from being executed by the State of Georgia."
TERRY LENAMON AND REBA KENNEDY; DEATH PENALTY BLOG;
PUBLISHER'S NOTE: Troy Davis is caught in a terrible Catch-22; Although there is no physical evidence to connect him to the crime - there is no physical evidence, such as DNA, to show that he didn't do it. As Terry Lenamon and Reba Kennedy point out in their post, the recent decision by the U.S. Supreme Court denying his latest appeal draws the state of Georgia one step closer to executing an innocent man. One of the lessons of the hundreds of DNA-related exonerations in the U.S.A. is that it is commonly found that the demonstrably wrongful conviction was caused by tainted witness testimony as is so apparent in the Troy Davis case. One can only hope that Georgia's governor will stand up for justice and grant what Lenamon and Kennedy call Troy Davis's "last and only hope."
"Troy Davis sits on Georgia's Death Row today with less and less hope to escape execution," the post by Terry Lenamon and Reba Kennedy published on March 29, 2011 under the heading, "Troy Davis Turned Down by US Supreme Court," begins.
"This week, the United States Supreme Court declined Troy Davis' request to review the determination by federal trial judge William T. Moore Jr. that the evidence Mr. Davis has accumulated to prove he is innocent of the crime for which he has been sentenced to die is merely "smoke and mirrors," the story continues.
For many, what Troy Davis has to offer is much more than smoke and mirrors. Still, the High Court has ruled and now,the question becomes what can be done now to stop what may well be an innocent man from being executed by the State of Georgia.
It may well be that the Governor's mercy is Troy Davis' last and only hope. It is legally possible that the State of Georgia could schedule Mr. Davis' fourth execution date at any time."
http://www.deathpenaltyblog.com/
Posted by Harold Levy at Wednesday, March 30, 2011
IAN TOMLINSON INQUEST; (MARCH 29); LINK TO THE GUARDIAN'S LIVE UP-DATE COVERAGE: AUTOMATICALLY UP-DATED EVERY MINUTE;
LINK TO THE GUARDIAN'S LIVE UP-DATE COVERAGE OF THE TOMLINSON INQUEST:
JOHN THOMPSON; (1); SUPREME COURT DENIES EXONERATED INMATE ONCE ON DEATH ROW $14 MILLION; THE ASSOCIATED PRESS; RARE GINSBURG DISSENT;
"Thompson, who at one point was only weeks away from being executed, successfully sued the district attorney's office in New Orleans, arguing Connick showed deliberate indifference by not providing adequate training for assistant district attorneys.
Prosecutors did not turn over a crime lab report that indicated Thompson's blood type did not match the perpetrator in an attempted robbery in 1985. Prosecutors used that conviction to get the death penalty in another case Thompson was involved in."
REPORTER JESSE J. HOLLAND; THE ASSOCIATED PRESS;
"An ideologically divided Supreme Court overturned a $14 million judgment given to a former death row inmate who was convicted of murder after New Orleans prosecutors withheld evidence in his trial," the Associated Press story by reporter Jesse J. Holland published earlier today under the heading, "Court: Exonerated inmate doesn't get $14 million," begins.
"The court's five conservative-leaning justices, in their first ideological victory of the year, said the New Orleans district attorney's office should not be punished for not providing specific training to young prosecutors on Brady rights, which dictate when to turn over evidence to a suspect's lawyer that could prove their innocence," the story continues.
"But in a rare oral dissent read directly from the bench, Justice Ruth Bader Ginsburg said that John Thompson deserved damages for "the gross, deliberately indifferent and long-continuing violation of his fair trial rights."
Thompson, who at one point was only weeks away from being executed, successfully sued the district attorney's office in New Orleans, arguing Connick showed deliberate indifference by not providing adequate training for assistant district attorneys.
Prosecutors did not turn over a crime lab report that indicated Thompson's blood type did not match the perpetrator in an attempted robbery in 1985. Prosecutors used that conviction to get the death penalty in another case Thompson was involved in.
Prosecutors normally have immunity for their actions while working, but Thompson convinced a jury that the district attorney's office had not trained its lawyers sufficiently on how to handle evidence. The 5th U.S. Circuit Court of Appeals in New Orleans was split evenly on appeal, which upheld the lower court verdict.
Brady rights are named after the Supreme Court's Brady v. Maryland case, which says prosecutors violate a defendant's constitutional rights by not turning over evidence that could prove a person's innocence.
Lawyers are expected to know the law when they graduate law school and pass the bar exam, and undergo professional on-the-job training and continuing education afterward, Justice Clarence Thomas said. But Connick cannot be blamed for his lawyers' deficiencies, he said.
"Prosecutors are not only equipped but are also ethically bound to know what Brady entails and to perform legal research when they are uncertain," Thomas said. "A district attorney is entitled to rely on prosecutors' professional training and ethical obligations in the absence of specific reason, such as a pattern of violations, to believe that those tools are insufficient to prevent future constitutional violations."
Chief Justice John Roberts and Justices Anthony Kennedy, Samuel Alito and Antonin Scalia joined with Thomas in his decision.
Ginsburg and the court's left-leaning justices said Thompson deserved to win, however.
"Ample evidence presented at the civil rights trial demonstrated that Connick's deliberately indifferent attitude created a tinderbox in which Brady violations were nigh inevitable," Ginsburg said.
She was joined in her dissent by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.
Thompson was convicted of attempted armed robbery in 1985, shortly before he was to stand trial in the unrelated case of the killing of Raymond Liuzza Jr. He did not testify during the murder trial. Prosecutors used Thompson's conviction in the robbery case to help secure the death penalty in the Liuzza murder case.
In 1999, an investigator working on Thompson's case discovered a crime lab report that prosecutors had not turned over, indicating Thompson's blood type did not match the perpetrator in the attempted robbery.
A state appeals court set aside Thompson's murder conviction in 2002 after deciding he'd been unconstitutionally deprived of his right to testify during the murder trial. That cleared the way for a new trial in which Thompson was acquitted.
He sued the district attorney's office soon thereafter.
The problems were not in just the attempted robbery case, Ginsburg said. Thompson is 5-foot-8-inches tall and wore his hair in an Afro during the time of the murder.
"The prosecution in Thompson's murder trial failed to produce a police report containing an eyewitness description of the murderer as six feet tall with close cropped hair," Ginsburg said. ... "No fewer than five prosecutors concealed, year upon year, this and other evidence vital to Thompson's defense."
Thompson was disappointed in the court's decision, saying none of the prosecutors who handled his case had been disciplined. "I spent 18 years in prison, 14 of them in a cell waiting to be killed, because Harry Connick's prosecutors covered up evidence in my case. I was delivered an execution warrant in my cell seven times," he said.
Thompson got $150,000 in compensation from Louisiana, the maximum the state allows.
"My life was spared despite the efforts of many prosecutors from Harry Connick's office who sought my conviction and execution over 18 years. They're the criminals they made people believe I was," he said.
The case is Connick v Thompson, 09-571."
http://www.ksro.com/news/article.aspx?id=3036967
Posted by Harold Levy at Tuesday, March 29, 2011
TROY DAVIS; U.S. SUPREME COURT DISMISSES HIS APPEAL; FACES EXECUTION IN GEORGIA; NO PHYSICAL EVIDENCE CONNECTS HIM TO THE CRIME; AP;
"During two days of testimony in June, U.S. District Judge William T. Moore Jr. heard from two witnesses who said they falsely incriminated Davis and two others who said another man had confessed to being MacPhail's killer in the years since Davis' trial.
But Moore concluded in August that several of the witnesses had already backed off their incriminating statements during the 1991 trial _ so it wasn't new evidence _ and that others simply couldn't be believed. He ruled that while the evidence casts some additional doubt on the conviction, "it is largely smoke and mirrors" and not nearly strong enough to prove Davis' innocence.
Davis sought to appeal Moore's decision, but the 11th Circuit Court of Appeals refused to hear the challenge in November. The Supreme Court then rejected the appeal on Monday, offering no elaboration.
REPORTER GREG BLUESTEIN; THE ASSOCIATED PRESS;
"Georgia prosecutors who spent more than two decades trying to execute Troy Davis have won what may be their final legal battle in the U.S. Supreme Court, yet state prison officials still can't schedule his execution," the Associated Press story by reporter Greg Bluestein published by Newser on March 28, 2011 under the heading, "Supreme Court rejects appeal from Troy Davis, Georgia death row inmate who claims innocence: High court rejects Ga. death row inmate's appeal," begins.
"This time it's because federal regulators seized the state's entire supply of a key lethal injection drug," the story continues.
"The Supreme Court's Monday decision to reject Davis' appeal clears the way for state authorities to execute Davis, who had been given a rare chance to argue his innocence but failed to convince a federal judge he was wrongly convicted of the 1989 murder of a Savannah police officer.
The high court's decision came at an inopportune time for Georgia authorities, who have set three previous execution dates for Davis since 2007 only to have each postponed so judges could review the case. Federal regulators this month seized the state's entire stockpile of sodium thiopental, a sedative used in the three-drug lethal injection cocktail, amid questions about how the state obtained it.
That means prison officials can't schedule Davis' execution until the Drug Enforcement Administration concludes its investigation or Georgia switches to another drug. Arizona, Texas and Ohio have already switched to another sedative, pentobarbital, amid a nationwide supply shortage, but Georgia prison officials won't comment on whether they are considering a similar move.
Still, the court's rejection is a crushing setback for Davis, who has become a cause celebre for the international anti-death penalty movement amid claims that he wasn't the one who killed off-duty Savannah police officer Mark MacPhail _ and that he had evidence to prove it.
Even Davis' attorneys acknowledge his options are limited. Defense attorney Jason Ewart said the likeliest _ and perhaps only _ route is the Georgia Board of Pardons and Paroles. The five-member panel has the power to commute or postpone executions, but rarely does so.
"We have to address the parole board. They said they wouldn't execute someone if there's doubt, and this case is so riddled with doubt," said Martina Correia, Davis' sister. "It's a shame in the U.S. when people don't value innocence. You would think the highest court in the land would have a lot more sensitivity to these issues."
MacPhail's mother, Anneliese MacPhail, said she hopes the court's decision has put to an end to Davis' legal appeals.
"I'm relieved that it's over now," said Anneliese MacPhail. "Well, maybe. I'm not believing it until it's over. It's been going on for so many years now that every time we think we're near the end, something else comes up. I just want this to end so badly, you won't believe it. This has been a nightmare."
MacPhail was working off-duty at a Savannah bus station on Aug. 19, 1989, when he was shot twice after rushing to help a homeless man who had been attacked. Eyewitnesses identified Davis as the shooter at his trial, but no physical evidence tied him to the slaying. Davis was convicted of the murder in 1991 and sentenced to death.
Davis has long claimed he could clear his name in MacPhail's death if a court would give him the chance to hear new evidence. The U.S. Supreme Court in 2009 agreed he should be able to argue his innocence, a rare chance afforded no other American death row defendant in at least 50 years.
During two days of testimony in June, U.S. District Judge William T. Moore Jr. heard from two witnesses who said they falsely incriminated Davis and two others who said another man had confessed to being MacPhail's killer in the years since Davis' trial.
Prosecutors were relieved by the decision. Lauren Kane of the Georgia Attorney General's office said it's consistent with every other court that reviewed Davis' case.
"Perhaps, now justice can finally be served in this matter," she said.
Supporters of Davis quickly called on the pardons board to commute his sentence.
Laura Moye of Amnesty International said lingering concern about the case "leaves an ominous cloud hanging over an irreversible sentence." And Kathryn Hamoudah, who chairs Georgians For Alternatives to the Death Penalty, said Davis' case exemplifies the problems with the state's death penalty system.
"Proceeding with the execution of Troy Davis would be callous, careless and irreversible," she said. "The state should be slowing down to address the well-documented, serious problems with a system that irreversibly takes human life, rather than rush to carry out an execution of a possibly innocent man."
Associated Press Writer Mark Sherman in Washington contributed to this report."
http://www.newser.com/article/d9m8fbtg0/supreme-court-rejects-appeal-from-troy-davis-georgia-death-row-inmate-who-claims-innocence.html
IAN TOMLINSON INQUEST: LINK TO THE GUARDIAN'S LIVE UP-DATE COVERAGE; AUTOMATICALLY UP-DATED EVERY MINUTE; (MARCH 29, 2011);
THE LINK:
A disciplinary panel of the General Medical Council ruled that his "fitness to practise was impaired" because of his reluctance to consider asphyxiation in the murder case, the falsification of his professional CV, and his failure to redress previous professional shortcomings. The UK Press Association says that the inquest, "is likely to examine the actions of police, the pathologist, the coroner and independent investigators in the aftermath of Mr Tomlinson's death." The Goudge Inquiry into many of former Dr. Charles Smith's cases also examined relationships between pathologists and police - particularly a case in which Smith agreed to interview a woman suspected of murdering her baby at her home while fully aware that the home had been secretly bugged by the authorities. The inquest is expected to last six weeks. This Blog will follow it closely.
CORNELIUS DUPREE JR. EXONERATED ON DNA STORED IN LAB MORE THAN 30 YEARS AGO; THE LESSON? KEEP THAT EVIDENCE; USA TODAY;
"In Dallas County, the wrongs are being righted because "the evidence — decades after it was collected — was there to test," District Attorney Craig Watkins says. The county has been retaining evidence for decades, some samples since 1978.
But in many places, the samples that ultimately freed DuPree, Woodard and Chatman would not have been saved. Only about half the states — including Texas — now require the automatic preservation of DNA evidence after conviction, according to The Innocence Project, which uses DNA evidence to assist inmates' claims of innocence. Sixteen states have no preservation laws.
As new cases of wrongful convictions continue to emerge based on DNA tests, the campaign for consistent preservation standards is gaining momentum across the country."
KEVIN JOHNSON: USA TODAY;
(PHOTO: CORNELIUS DUPREE JR.)
"DALLAS — The exoneration of Cornelius DuPree Jr. after three decades in prison began in a cramped local laboratory, where an unusual repository of biological evidence from thousands of crimes is liberating more wrongly convicted inmates than any in the country," The USA TODAY story by Kevin Johnson published earlier today begins, under the heading, "Storage of DNA evidence crucial to exonerations," begins.
"The lab was born in the aftermath of President Kennedy's assassination here to fill a void: When Kennedy was shot in 1963, there was no forensic science center in Dallas County to store and analyze evidence needed to solve crimes," the story continues.
"Today, as DNA analysis has matured, old samples of blood, hair, dried saliva and other biological material preserved at the labhave transformed it into an archive of hope for prisoners held in error.
Crime-solving remains the lab's primary mission, and the old DNA samples have helped analysts identify criminals who have eluded investigators for years. Exonerations have emerged as a by-product of that mission. Since 2001, the lab's DNA archive has secured freedom for 21 prisoners serving up to life in prison — the most exonerations in any county.
As more horrific mistakes of the past are exposed, the Institute of Forensic Sciences has become Exhibit A in a national push by some lawmakers, civil rights advocates, prosecutors and the federal government for more uniform standards regulating how biological evidence should be retained in criminal cases.
Dupree, 51, was freed in January when DNA lifted from strands of hair stored at the lab more than 30 years ago cleared him in the rape and robbery of a Dallas woman and her male companion. James Woodard, 57, was freed in 2008 after evidence filed at the lab more than 27 years ago wiped out his conviction in the slaying of his girlfriend. Charles Chatman, 49, was freed in 2008 because evidence warehoused more than 26 years ago cleared him in the rape and robbery of a neighbor.
For all three men, technology was just developing or did not exist to test the evidence collected at the time of their arrests. The first exoneration using DNA evidence occurred in 1989; the years since have produced advances in science and the law.
No law on DNA preservation
Sixteen states have no laws requiring the preservation of DNA evidence:
• Alabama
• Idaho
• Indiana
• Kansas
• New Jersey
• North Dakota
• Pennsylvania
• South Dakota
• Tennessee
• Utah
• Vermont
• Washington*
• West Virginia
• Wyoming
*Note: Washington does not require preservation but does have a provision in state law that allows judges to order the preservation of evidence
Source: The Innocence Project
In Dallas County, the wrongs are being righted because "the evidence — decades after it was collected — was there to test," District Attorney Craig Watkins says. The county has been retaining evidence for decades, some samples since 1978.
As new cases of wrongful convictions continue to emerge based on DNA tests, the campaign for consistent preservation standards is gaining momentum across the country. Among recent developments:
•The National Institute of Justice, the research arm of the Justice Department, is funding the development of consistent guidelines for evidence retention across the country. The work, organized by the Commerce Department's National Institute of Standards and Technology, began last year and is expected to be complete by 2012, says Melissa Taylor, an analyst in the institute's law enforcement standards office.
•Pennsylvania Republican state Sen. Stewart Greenleaf says a four-year study commissioned by the state's General Assembly, plannedfor releaseas early as April, is expected to recommend a package of bills requiring the retention of evidence and the creation of a forensic advisory board to oversee crime lab operations. Pennsylvania has no current preservation laws.
Greenleaf, who has consulted with Dallas officials about their laboratory practices, fears his state's prisons may hold as many — or more — wrongly convicted prisoners as those in Texas. "I believe there may be more cases nationally and in Pennsylvania that we are not aware of in part because of the lack of (evidence) supervision and preservation," he says.
•Massachusetts state Sen. Cynthia Creem, a Democrat, is sponsoring a proposal that would increase inmates' access to testing after conviction and set standards for retaining the evidence in a state where no guidelines exist. Creem's bill, filed in January, calls for all biological evidence to be retained as long as the convicted prisoner remains in custody or on probation or parole.
While many lawmakers agree new state measures are needed to guard crucial evidence for possible future testing, not all believe their states need or can afford the standard followed in Dallas County, where much of the biological evidence is never discarded.
"At some point you have to be practical," Montana Republican state Sen. James Shockley says. He supports a bill in which prosecutors can request that evidence be destroyed after convicted felons' appeals are exhausted, even if time remains on their prison sentences. In cases where there is no suspect, the evidence would be preserved for 30 years.
"The problem is storage," Shockley says of costly warehouse space that would have to be expanded if evidence were stored indefinitely. "I can't imagine any science" that would warrant longer retention to preserve the option for future testing. "That's just not real world."
Yet when DuPree was sentenced to 75 years in prison in 1980, Watkins says nobody foresaw the value of DNA analysis in identifying errors in the criminal justice system today, either.
Barry Scheck, co-director of The Innocence Project, says there is a simple explanation for why so many wrongfully convicted prisoners have walked out of Dallas County courtrooms as free men: "What makes Dallas unique is that they have saved more evidence," Scheck says. "That's the reason. End of story."
100,000 pieces of DNA
There is only one view to the outside world from one of the examination rooms at the Institute of Forensic Sciences.
Framed by a bay window on one wall is the drive-up emergency room entrance at Parkland Hospital, the spot where President Kennedy was brought nearly 48 years earlier.
The laboratory owes its very existence in large part tolaw enforcement weaknesses exposed by the president's assassination, says Timothy Sliter, the institute's evidence section chief. Sliter says the assassination and the resulting investigations underscored the county's lack of scientific expertise and ability to analyze evidence in criminal probes.
Although conceived in the post-assassination 1960s, the lab did not open until the late 1970s, when the earliest standards for the storage of evidence emphasized preservation, Sliter says.
Some, including Watkins, say the strict evidence retention practices were first encouraged by legendary Dallas District Attorney Henry Wade, who wanted the evidence preserved to guard against defendants' appeals. But Sliter believes science set the tone for an archive that now holds about 100,000 pieces of biological material.
Much of the evidence is stored in 17 freezers, all set to 0 degrees Fahrenheit.
The samples — on stained fabric swatches, in small plastic tubes and on cotton swabs containing all forms of biological material — are packaged in plastic, assigned a number and filed in blue plastic bins, resembling a library in deep freeze.
New evidence pouring in from about 100 law enforcement agencies in the area requires the addition of one new freezer every year. Each is equipped with an alarm system to guard against fluctuating temperatures and possible machine malfunctions.
Stacy McDonald, Sliter's chief deputy, says the steady volume of work has produced a backlog of about 450 tests, resulting in average wait times of two to three months for results. The requests come from police, prosecutors and prisoners. Emergency requests, she says, can be turned around in about three days.
McDonald says the $33 cost per sample includes the "lifetime" storage fee.
Sliter says expenses to test and maintain the lab are far more substantial — about $5 million per year. Yet he disputes the idea that long-term storage is too costly.
"It's all a matter of whether you think it's important enough to do," he says. "For years, people lived with the delusion that the justice system was free from error. In the 1990s, that delusion began to be shattered largely because of DNA evidence."
Sliter, McDonald and the lab's 17 analysts know their work has led to dramatic exonerations, but they have never met the men who have won their freedom.
"We try to treat everything we do here with the same sense of seriousness," McDonald says. "Somebody could be executed based on what we do here."
"The prosecutors may love us today," Sliter adds. "Tomorrow, maybe not so much."
Archive missing material
For all of the Dallas laboratory's successes, the institute's record isn't perfect, says Michael Ware, chief of Dallas County's Conviction Integrity Unit.
Evidence in some cases dating to the late 1970s and early 1980s cannot be located, says Ware, whose unit was created in 2007 to review hundreds of convictions in which questions were raised about prisoners' possible innocence.
"You are not going to find what you're looking for in some of those cases," Ware says. "And that's under the best of circumstances. Think about what that means in other laboratories" that do not always preserve evidence.
McDonald acknowledges there are missing pieces from the archive's earliest years, from about 1978 to 1983. From 1983 on, she says, the evidence is intact.
About 30% of requests for archived evidence go unfilled because the material is not available, McDonald says. In some of those cases, including convictions based on confessions or plea agreements, the evidence was never submitted by the investigating agency. In others, the material may have been returned to the agencies at their request.
Joe Latta, executive director of the International Association for Property and Evidence, says problems with missing and mishandled evidence plague the industry.
"The vast majority (of police agencies and crime labs) have a hard time taking care of what we call 'the stuff,' " says Latta, one of 23 members of the federal panel that is developing national guidelines for evidence retention.
He says many evidence warehouses are run by police or other law enforcement officials who have no background overseeing those operations. Civilian scientists, not police, maintain the biological evidence in the Dallas lab.
"Police chase bad guys," Latta says. "We have no experience whatsoever taking care of warehouses."
The Dallas lab's work has given DuPree a chance to reclaim the life he lost 30 years ago.
He married after his release from prison. As an intern for Democratic Texas state Sen. Rodney Ellis, a strong supporter of the innocence movement, DuPree is advocating for new laws to help innocent prisoners gain their freedom.
Among the proposals being drafted is a bill to adopt uniform standards for how evidence is retained across the state.
"Without that evidence being in that lab, there is no way I'm here," DuPree says. "I would still be in prison.""
http://www.usatoday.com/news/nation/2011-03-28-crimelab28_ST_N.htm
THE CHALLENGES OF SCIENTIFIC EVIDENCE; IMPORTANT LECTURE BY SUPREME COURT OF CANADA JUSTICE THOMAS CROMWELL; UNSCRUPULOUS EXPERTS MUST BE ADDRESSED;
"It seems, however, that even quite rigorous admissibility standards are not sufficient to address all the challenges posed by scientific and technical evidence. Clear professional standards, appropriate training, credentialing and quality control for expert witnesses have the potential to address more directly the sorts of problems that arise from the evidence of unqualified, careless, overworked or even unscrupulous experts. Finally, the legal profession and the judiciary need to improve their scientific literacy."
SUPREME COURT OF CANADA JUSTICE THOMAS CROMWELL; THE CHALLENGES OF SCIENTIFIC EVIDENCE; MACFADYEN LECTURE, 2011;
PUBLISHER'S NOTE: It is not every day that a Supreme Court of Canada Justice lectures on the Challenges of Scientific evidence. Justice Thomas Cromwell addresses the particular problems in Canada that led to the creation of the Goudge Inquiry, as well as the Sally Clark case in England, the Shirley McKie case in Scotland and the efforts to address these challenges in the U.S.A. His lecture should be of compelling interest to people determined to prevent miscarriages of justice in jurisdictions throughout the world. I really like his message that it's not enough to have "quite rigorous admissibility standards." If miscarriages of justice are to be avoided, Justice Cromwell says there must also be, "Clear professional standards, appropriate training, credentialing and quality control for expert witnesses have the potential to address more directly the sorts of problems that arise from the evidence of unqualified, careless, overworked or even unscrupulous experts." I was very pleased to see Justice Cromwell's reference to "Forensic Investigations and Miscarriages of Justice: The Rhetoric Meets the Reality," by Bibi Sangha, Kent Roach and Robert Moles, published by Irwin Law in Toronto. This book does a magnificent job of exposing the link between the myth of impartial forensic science and the mounting number of miscarriages of justice in jurisdictions throughout the world - while offering solutions for addressing it.
[1] "Attempts to bring scientific learning and expertise to bear on legal disputes give rise to many sorts of problems" Justice Thomas Cromwell's 2011 Macfadyen lecture delivered on March 2, 2011 begins, under the heading, "The Challenges of Scientific Evidence."
"There is concern about the time and expense required to obtain and present expert testimony," the lecture continues.
"There is concern about the objectivity of expert witnesses: are their opinions unduly influenced by the litigant paying their fees? There is disquiet about the capacity of judges and juries, who likely have little scientific training, to sort out disputes between qualified experts. There are concerns that some of what is presented as science may in fact be little more than untested theory or wishful thinking. There is concern that the traditional rule relating to opinion evidence is not a very promising vehicle to address contemporary problems about the reliability of scientific evidence. The different objectives and vocabularies of a trial and a scientific investigation pose many challenges to constructive collaboration between jurists and scientists.
[2] It is not surprising, then, that when law and science meet in the courtroom, the encounter is often not a happy one for either discipline, for the judiciary, the jury or the parties. But if all that these encounters produced were some ruffled professional feathers, large bills and doctrinal conundrums, the subject might not merit urgent attention. However, often much more is at stake. In virtually every jurisdiction, these courtroom encounters between law and science have also resulted in spectacular miscarriages of justice. This, along with the other concerns, have resulted in action by courts, legislatures and law reform bodies in many jurisdictions. It is timely, therefore, to review the law concerning expert and scientific evidence and the various reforms that have been put in place to address these challenges. Ultimately, the key question is how well the law is meeting the challenges posed by scientific evidence.
Doctrinal foundations:
The Opinion Rule and its Exceptions
[3] The rules of evidence governing the admissibility of expert testimony form an exception to a very old and rather ill-defined rule excluding opinion evidence. The so-called opinion rule in Canada, Scotland, the other jurisdictions of the United Kingdom and the United States has the same origin: a general rule that witnesses may only give evidence on matters of fact, not on their opinions.1 In other words, the rule is that "witnesses must speak only to that which they themselves perceived."2 The rule excluding opinion evidence has the same origin as the hearsay rule: "every witness must be able to say that he has seen or heard that to which he deposes."3 As Thayer explains, "[i]t was for the jury [and I would add, the trier of fact even if not a jury] to form opinions, and draw inferences and conclusions, and not for the witness."4
[4]The application of this rule depends on the distinction between fact and opinion. But, as many writers have noted, that distinction is often far from clear.5 Ordinary witnesses often form judgments and express opinions when giving evidence. For example, the statement that a car was driven erratically states, or at least summarizes, a conclusion drawn from the observed facts.6 Thayer observed that "[i]n a sense all testimony to matters of fact is opinion evidence; i.e., it is a conclusion formed from phenomena and mental impressions."7 Davidson suggests that the opinion rule only bars witnesses from drawing inferences from the facts that they have perceived; witnesses are thus permitted to testify as to their impressions formed at the time of the incident notwithstanding that these impressions may often be the result of unconscious inferences.8 This conception corresponds to the "modern opinion rule" described by Schiff that permits witnesses to testify with respect only to their perception of relevant events and not to their factual conclusions or inferences.9
[5] The rule excluding opinion evidence of course admits of exceptions. There are many types of first hand observation which are difficult for witnesses to recount meaningfully unless able to express their conclusions. Perhaps eye-witness identification is the best example. The conclusion that the person observed at the time of the crime is the person in the dock is more meaningful than a recitation of various physical features observed. Thus, the law permits evidence in the form of opinions where the matters observed are the sorts of things about which conclusions are reached in everyday life and which are too complicated or numerous to be separately and distinctly narrated.10 Similarly, there are matters which require no special skill or training such as speed, distance, handwriting and general physical condition about which any witness with first-hand knowledge is permitted to testify.11
[6] Of more interest for present purposes, however, is another exception to the opinion rule, that relating to expert evidence. Judges and juries may be ill-equipped to draw "true inferences" in situations requiring special knowledge or skill.12 A witness with that special knowledge or skill is therefore permitted to give his or her opinion in those situations.13 This exception is, of course, the doctrinal foundation of the law of evidence in relation to expert scientific evidence.
[7] What is striking about this is that while the opinion rule focuses on the form of the evidence, most of the problems with expert scientific evidence relate to its content and not merely to its form. The problems that arise with expert opinion evidence also present themselves in technical evidence of all kinds, not simply in evidence presented in the form of opinions. It seems, therefore, that the response of the law of evidence to the challenge of scientific evidence is built on a rather shaky doctrinal foundation, or at least on one that is not well suited to addressing those challenges.
The Basic Standards of the Rules
[8] In all of the jurisdictions I have considered, the basic structure and content of the exception for expert opinion evidence is similar. The rule has two components, one of which is concerned with the subject matter of the evidence and another which is concerned with the qualifications of the witness.
[9] Assuming that the evidence is relevant and otherwise admissible, the expert evidence must first meet a threshold of utility or necessity. This part of the rule is concerned with the subject matter of the proposed evidence. The Canadian rule provides that qualified persons may express opinions on matters with respect to which the ordinary person is unlikely to appreciate the facts due to their technical nature or to form a correct judgment without the assistance of persons with special knowledge.14 As I understand it, a similar threshold applies in England & Wales and Scotland.15If that threshold is met, one then must consider the qualifications of the expert. The Canadian rule is that to be qualified as an expert, he or she must have special knowledge gained through study or experience with respect to the matter on which the opinion is to be offered.16 I understand that a similar approach applies in Scotland and in England & Wales.17 The opinion, of course, must be confined to the area of expertise.
A "Gatekeeper" Role for the Trial Judge
[10] Three aspects of the law of evidence applied by United States Federal Courts have been influential in the development of the law elsewhere. While traditionally the law about the admission of expert testimony has focused on the subject matter and the qualifications of the proposed expert witness, United States law has also been concerned with the accuracy of the science underlying the expert's testimony.
[11] In Frye v. United States18the court set out the principle that expert evidence must be based on scientific principles or scientific discoveries that are "sufficiently established to have gained general acceptance in the particular field in which it belongs."19 My understanding is that Scotland applies a similar, although somewhat less exacting rule that expert methodology must be rooted in the principles of some recognized branch of knowledge.20 If the expert's opinion is not based on a recognized body of knowledge, it will likely be inadmissible because it cannot be tested on cross-examination.21 The situation, as I understand it, is less clear in England and Wales. While there is appellate jurisprudence which applies a Frye-type rule, a recent Law Commission consultation paper has taken the view that the Frye test does not form part of English law.22 The Frye principle has generally not been applied in Canadian evidence law. In the United States, as is well known, the Frye test of general acceptance was controversial and, as I shall discuss shortly, was eventually repudiated at least in cases governed by the Federal Rules of Evidence.
[12] Before turning to that, however, we should note a second important development which is reflected in the Federal Rules of Evidence. Rule 702, which deals with expert evidence, makes clear that its operation is not limited to evidence that would otherwise be excluded by the opinion rule; the Rule applies whenever "scientific, technical or other specialized knowledge will assist the trier of fact." This is further underlined by the Rule's concluding words: "a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." A similar development occurred in Canada with the decision of the Supreme Court in R. v. Trochym.23 As Deschamps J. put it, the concern about the reliability of the science which underlies evidence is "as important when facts extracted through the use of a scientific technique are put to the jury as when an opinion is put to the jury through an expert who bases his or her conclusions on a scientific technique."24
[13] The third, and most significant development occurred in a trilogy of cases in the Supreme Court of the United States which required that before expert opinion or technical evidence is admitted, the trial judge must be satisfied that it is sufficiently reliable to justify its admission.25 This, of course, has come to be known as the gate-keeping role of the trial judge with respect to expert and technical evidence. The Court rejected the applicability of Frye as the test for admissibility in cases governed by the Federal Rules of Evidence. Instead, the trial judge must assess, as a preliminary matter, whether the reasoning or methodology underlying the testimony is scientifically valid, and whether that reasoning or methodology properly can be applied to the facts in issue. While general acceptance is a factor to consider in determining scientific validity, it is not the sole marker of such validity.
[14] Through development of the common law of evidence, Canadian courts in large measure have adopted a similar gate-keeping role for trial judges with respect to expert and other technical evidence. Canadian law now requires trial judges to play the role of gatekeepers by ensuring that expert evidence meets a threshold of reliability before it is admitted into evidence.
[15] This development began in R. v. Mohan26 which set out a four part test for admissibility of expert opinion evidence. Before admitting the evidence, the judge, in an inquiry (in Canadian parlance referred to as a voir dire27), must find that the proposed evidence is 1) relevant, 2) necessary in the sense that it is likely to be outside the knowledge of a judge or jury, 3) not barred by any other exclusionary rule and 4) that the expert is properly qualified. While the reliability (in the legal sense) of the evidence is not one of the four elements of this test, reliability nonetheless is considered in relation to three of these four elements, relevance, necessity and the expert's qualifications.
[16] Relevance in this context includes not simply consideration of the logical relevance of the evidence, but also an assessment of its likely effect as weighted against its reliability. As Sopinka J. wrote for the Court, "Evidence that is otherwise logically relevant may be excluded ... if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability."28 The reliability of the evidence is also considered in relation to the necessity of having expert evidence on the subject. If the evidence is not reliable, it cannot be necessary for or even helpful to the trier of fact.29 Reliability also factors into the analysis of the expert's qualifications. The validity and applicability of the science underlying the expert's proposed evidence go to whether he or she is properly qualified.30
[17] Cases from the Supreme Court of Canada since Mohan have elaborated on the obligation of the judge to assess the reliability of evidence based on novel science or on accepted science applied to a new purpose. For example, in R. v. J.-L.J., the Court established the requirement for the trial judge to subject the evidence in these circumstances to a careful reliability analysis. Importantly, the Court adopted the factors set out in Daubert as ones that could be helpful in evaluating the soundness of novel science. Those factors are testing, peer review, known or potential error rate and general acceptance. The trial judge's determination, it must be emphasized, is in relation to threshold reliability to justify admission; once admitted, assessing the weight to be given to the evidence is for the trier of fact. The precise distinction between threshold and ultimate reliability is not clearly defined, but the essence of the matter is whether the evidence should be excluded because it is likely to distort rather than to assist the fact finding process.31
[18] This gate-keeping role is performed in the context of a voir dire to determine the admissibility of the expert evidence. This inquiry is governed by the usual principles of adversarial procedure. Thus, the trial judge's capacity to fulfill the gate-keeper role is largely dependent on the parties providing the court with the material necessary to do so. Many Canadian judges would tell you that they are frequently not provided with that material and that in many cases, the admissibility voir dire becomes an almost pro forma affair.
[19] My understanding is that English and Scottish law have not adopted a comparable "gate-keeper" role for trial judges with respect to expert and other technical evidence. The Law Commission, in its recent consultation paper, concluded that English criminal courts seem to have adopted a "laissez-faire" policy regarding the admissibility of expert evidence, admitting any evidence as long as it is not patently unreliable so that juries are not denied access to potentially helpful information.32 Hodgkinson and James take a similar position; they argue that criminal courts follow civil courts in allowing expert evidence even where there is "no relevant coherent body of knowledge or experience beyond the experience of a handful of individuals."33
[20] There are principled objections to judges having this gate-keeper role. Dwyer observes that while the American approach to expert evidence is premised on the assumption that experts are "unscrupulous mercenaries", English courts have approached the problem differently by focusing on the idea of "decent conduct and fair play."34 John Hartshorne and José Miola are concerned about the inconsistency that could develop if judges in England and Wales were given the task of acting as judicial gatekeepers.35 They suggest that decisions involving new theories and techniques should be transferred from trial judges to a panel consisting of Lords Justice of Appeal. This panel would be responsible for deciding whether new theories and techniques are sufficiently reliable to go before juries in Crown Court trials.
[21] As for Scotland, Davidson observes that there has been no move to adopt an "active gate-keeping role" with respect to expert evidence.36 Scottish courts will exclude evidence as irrelevant if its basis is insufficiently sound, but Scottish law largely leaves it to the trier of fact to "evaluate and assess expert evidence by deciding what, if any weight it should receive."37
[22] To sum up, Canadian and Scottish law are quite different in relation to evaluating the reliability of expert evidence before it is admitted. As I understand it, Scottish courts admit scientific evidence provided it is rooted in a recognized body of knowledge and otherwise do not screen for threshold reliability of the science or technique on which the evidence is based. The primary focus is on the expert's expertise rather than on the reliability of the underlying scientific technique.
Miscarriages of Justice and Expert Evidence
[23] Whatever the differences in approach to the admissibility of expert evidence, Canada, England and Scotland have in common miscarriages of justice in criminal cases attributable to expert scientific evidence and, indeed, to systemic problems going far beyond testimony in the particular case. I will mention briefly some examples in Canada, England and Scotland before turning to possible measures to help prevent similar miscarriages of justice in the future.
Canada – The Kaufman Inquiry
[24] In October 1984, nine-year old Christine Jessop was murdered. Guy-Paul Morin, her next-door-neighbour, was charged and convicted in her murder. The prosecution's case was based in part on hair and fibre evidence. There was expert evidence that a hair found in Jessop's necklace was microscopically similar to Morin's hair and therefore "could have" come from him.38 Before Morin's second trial it was revealed that two classmates had hairs which were also microscopically similar.39 Morin was ultimately exonerated and a Commission of Inquiry was established to inquire into the wrongful conviction.
[25] The Commission noted a number of problems with the hair evidence, including that properly understood, the hair comparison evidence had little or no probative value in proving Mr. Morin's guilt. The Commission also noted that generally, hair comparison evidence (absent DNA analysis) is unlikely to have sufficient probative value to justify its reception as circumstantial evidence of guilt at a criminal trial and that the forensic scientist who had testified had not adequately or accurately communicated the limitations upon her hair comparison findings to police.40
[26] There were also problems with fibre comparison evidence. Fibres were collected from the victim's clothing and recorder bag found as well as Morin's car and residence.41 Two Crown experts testified that several of the fibres from the Morin-related locations were similar and could have come from the same source as several fibres found where the victim's body was located.42 The Commissioner found that the similarities, even if they existed, proved nothing.43 He also found that the evidence had been contaminated at the Centre of Forensic Sciences and that no inferences could be safely drawn from any alleged similarities, given the existence of the "in-house contamination."44 The experts also provided the prosecution with a published study on fibre transference, which properly understood, did not support the prosecution's case.45 The Commissioner made thirty-four recommendations on the issues of forensic evidence, including that there be a comprehensive set of guidelines drawn up for writing forensic reports.46
Canada – The Goudge Inquiry
[27] In 2005, the Chief Coroner of the Canadian province of Ontario called for a review into the work of Dr. Charles Smith, a well-respected paediatric pathologist at Toronto's world-renowned Hospital for Sick Children.47 The results of the Review, which found major problems with Dr. Smith's expert reports and testimony, led to the creation of the Goudge Commission.48 This Commission was established to "conduct a systemic review and assessment of the way in which paediatric forensic pathology was practised and overseen in Ontario", especially as it related to the criminal justice system from 1981 to 2001, the years corresponding to the time that Dr. Smith was involved in forensic pathology work.49 The Report made a number of important findings and recommendations; an entire chapter was dedicated to the role of the court in protecting the criminal justice system from unreliable expert evidence.50
[28] Justice Goudge found that Dr. Smith's expert evidence had many failings. He failed to understand his duty to the court to act impartially; he failed to properly prepare for court; he misled the court by overstating his knowledge in certain areas; he gave unscientific evidence by resorting to his own experiences and used loose, unscientific language; he failed to provide a balanced view of the evidence; he engaged in unwarranted criticism of other professionals; he testified on matters outside his area of expertise and h51
[29] The failings in Dr. Smith's expert opinions have led to the re-opening of several criminal cases, which in turn has resulted in acquittals or new trials. As an example, I will refer to the case of William Mullins-Johnson.52
[30] The parents of a young child found her lying in her bed, dead at 7:00 a.m. on Sunday June 27, 1993. A Dr. Rasaiah conducted the autopsy and consulted a doctor at the Hospital for Sick Children to describe his preliminary observations. Before the dissection of the body occurred, that doctor gave the opinion that the child had been subjected to chronic abuse. A gynaecologist/obstetrician (Dr. Zehr) with expertise in child sexual abuse, attended the autopsy and declared that it was one of the worst cases of child abuse that she had ever seen. She relied on her observation of the child's dilated anus. Before the end of the post-mortem, Dr. Rasaiah informed police that he believed that the child had died the night before between 8:00 and 10:00 p.m. and that the cause of death was homicidal asphyxiation. Mr. Mullins-Johnson was charged with first-degree murder because he had been home alone that evening babysitting the child. Dr. Charles Smith and Dr. Rasaiah wrote a joint report in which they concluded that the child had likely died of asphyxia, resulting from chest or abdominal compression, and had suffered anal penetration by a round, blunt object.53 Mr. Mullins-Johnson maintained his innocence but was convicted of first-degree murder.
[31] In 2007 Mr. Mullins-Johnson's case was re-opened. The evidence of six pathology experts confirmed that the evidence did not support the opinions tendered at trial that the child had been sexually assaulted and murdered. The bruises and injuries initially thought to be the result of sexual abuse and murder were actually the result of normal processes following death.54 The Court of Appeal found that "an exhaustive review of the evidence" supported Mr. Mullins-Johnson's contention that he did not kill his niece and that his conviction had been the result of a rush judgment based on flawed scientific opinion.55
England and Wales – the Sally Clark Case
[32] England and Wales have also experienced problems relating to expert evidence. Professors Kathryn Campbell and Clive Walker conducted an independent research study on medical mistakes and miscarriages of justice in England and Wales for the Goudge Inquiry.56 They observed that "[e]rrors made by pathologists reporting in criminal cases on sudden deaths of infants have resulted in serial miscarriages of justice in the United Kingdom."57 One example is the Sally Clark case.
[33] In 1999, Sally Clark was convicted of the murder of her two sons. When her first son Christopher died shortly after birth, a Dr. Williams conducted the post-mortem examination. He found some bruises on the body but concluded that they were consistent with minor harm caused during resuscitation. He found evidence of infection in the lungs and concluded that the cause of death was lower respiratory tract infection. Ms. Clark gave birth to a second child, Harry, who also died shortly after birth. Dr. Williams carried out the post-mortem examination and concluded that shaking was the cause of death. He reconsidered his earlier conclusions with respect to Ms. Clark's first child and opined, with the assistance of others, that this death had also been unnatural and that there was evidence to suggest smothering. At trial, Sir Roy Meadow testified that the chance of children dying naturally in these circumstances was one in 73 million.58
[34] Adam Wilson identifies two sources of expert error that arose in the Clark case.59 The first relates to Dr. Williams's reliance, in part, on evidence of haemorrhages in the eyes and eyelids to justify the conclusion that the second child had been murdered.60 At trial, Professor Luthert, a specialist in eye pathology, expressed the view that the bleeding was of post-mortem origin attributable to error in slide preparation or blood dripping onto the slides during dissection.61 Mr. Wilson notes that errors in the preparation of slides or the possibility of allowing blood to drip onto the slides constitute "fundamental scientific error[s]."62 The second error was poor methodology pertaining to forensic investigation.63 It was only discovered in a second appeal that microbiological testing of Harry's blood, body tissue, and cerebrospinal fluid had been conducted but that Dr. Williams had not disclosed them.64 The test results indicated the presence of bacteria that could have been lethal, providing some evidence of natural death.65
[35] The Court of Appeal quashed the convictions, finding that there was evidence that was not before the jury that might have caused it to reach a different verdict. The Court of Appeal was especially troubled by Dr. Williams's statement that it was not his practice to refer to additional results in his autopsy report unless they were relevant to the cause of death.66 The Court found that this was "completely out of line with the practice accepted by other pathologists to be the standard" and ran a "significant risk of a miscarriage of justice."67 While the outcome of the appeal was not based on the statistics provided by Professor Meadow, the Court found it "unfortunate that the trial did not feature any consideration as to whether the statistical evidence should [have] be[en] admitted in evidence"; the Court was also of the view that Professor Meadow likely "grossly overstate[d] the chance of two sudden deaths within the same family from unexplained natural causes."68 The Court held that, if the matter had been fully argued before them, they would likely have considered the statistical evidence to constitute a separate basis upon which to allow the appeal.69
[36] The release of the Clark appeal led to the Attorney General Lord Goldsmith establishing an Interdepartmental Group tasked with examining other cases involving Dr. Williams to see if they too involved non-disclosure.70
Scotland – the Shirley McKie Case
[37] Scotland has also encountered problems with expert evidence and the case of Shirley McKie provides a concrete illustration. In January 1997, a woman named Marion Ross was found murdered at her home.71 Ms. McKie was a police officer on the murder investigation team. In the course of the investigation into Ms. Ross's murder, a fingerprint was found on the bathroom doorframe of Ms. Ross's home; this became known as "Y7".72 The Scottish Criminal Records Office (SCRO), the body responsible for analyzing fingerprints, produced a report stating that the fingerprints on the bathroom doorframe belonged to Ms. McKie.73 This is significant because the investigation team had been told not to enter the premises.
[38] A man named David Ashbury was identified as a suspect in the murder. At his murder trial, Ms. McKie gave evidence that the fingerprint found on the bathroom doorframe ("Y7") was not hers. Mr. Ashbury was convicted of murder and an important part of the evidence against him was the discovery of what was alleged to be the deceased, Ms. Ross's, fingerprint ("Q12") on a tin found at his house. This evidence was set out in another report prepared by the SCRO.74
[39] Ms. McKie was prosecuted for perjury based on her evidence at Mr. Ashbury's trial. Her counsel led evidence from two independent fingerprint experts that concluded the fingerprint Y7 was not hers. The jury acquitted Ms. McKie of perjury.75 After Ms. McKie's acquittal, Her Majesty Inspectorate of Constabulary for Scotland (HMIC) carried out an inspection of SCRO.76 Independent experts came to the "unequivocal view" that the fingerprint had not been made by Ms. McKie.77 The Report also found that the SCRO Fingerprint bureau was unable to "provide a fully efficient and effective service with its present level of staffing, resources, processes and structures."78
[40] Mr. Ashbury also appealed his conviction for murder.79 The Crown sought opinions from independent fingerprint experts who advised that the fingerprint (Q12) did not match that of the deceased, Ms. Ross.80 The Crown did not oppose the appeal and in 2002, David Ashbury's conviction was quashed.81
[41] The Justice Committee of the Scottish Parliament held a parliamentary inquiry into the SCRO and the Scottish Fingerprint Service.82 The Committee heard from a number of fingerprint experts and made the following comments (paras. 341 -343):
* What emerged from the evidence-taking process was that the differences of opinion as to the identification of mark Y7 are so fundamental that they cannot be reconciled. Illustrative of this complete lack of consensus is the fact that two analysts could find 32 ridge characteristics in agreement between mark Y7 and Shirley McKie's left thumbprint and yet a third analyst could find none in agreement and 20 in disagreement.
* The Committee found it staggering that respected and highly experienced experts could have such widely divergent professional opinions.
* The level of disagreement goes far deeper than one group of experts simply coming to a different conclusion on the identification of mark Y7. There appears to be fundamental disagreement among the experts on most matters relating to the analysis to which mark Y7 has been subject. One such area is that there is no agreement on the way in which dissimilarities between marks are accounted for.
[42] The Committee refused to decide whether mark Y7 was correctly identified or not but made a number of recommendations for improving the Fingerprint Service.83 In 2008 a public inquiry into the case was announced and I understand its report is in the process of being completed.
[43] The Canadian, English, and Scottish examples of miscarriages of justice attributed to expert scientific evidence are illuminating in at least three respects.
[44] First, the cases demonstrate the utility of more rigorous screening of proposed expert evidence at the admissibility stage. It is at least arguable that careful gate-keeping could have resulted in the exclusion of the problematic evidence in these cases because that sort of review would have shown that the evidence lacked a proper scientific basis.
[45] These examples, however, also illustrate the point that adjustment and strict application of the rules of admissibility are not likely to be enough, in themselves, to address the problems with expert evidence encountered in these cases of miscarriages of justice. For instance, key issues in the Clark case were the errors in slide preparation and the failure to disclose relevant test results. It is not likely that these matters would have been identified in a hearing to assess the threshold reliability of the scientific principles underlying the witness's opinion. In other words, the gate-keeping role for the trial judge as understood in the United States and in Canada is mostly concerned with the reliability of the scientific underpinnings of the opinion and the applicability of those principles to the issue in question. It seeks to detect problems with the science, not problems with the individual expert. I will discuss some measures that have been adopted or proposed to help to address these sorts of problems more directly.
[46] Third, the cases involving miscarriages of justice demonstrate that the problems are not confined to novel science. Errors with respect to well-accepted science were at the root of the wrongful conviction of Mr. Mullins-Johnson, for example. Moreover, what was once a well-accepted scientific principle or technique may require re-evaluation. This was the case, for example, with post-hypnotic memory in the Trochym case, and may well be the case with, for example, fingerprint evidence.84 These examples underline the importance of on-going assessment of the reliability of the science and the appropriateness of its application.
Meeting the Challenges
[47] In their study of miscarriages of justice in Britain, Canada and Australia, Professors Sangha, Roach and Moles identify recurring problems common to the experience of those jurisdictions. These include the use of preliminary tests as conclusive evidence, the failure to identify or disclose procedural errors in the use of scientific methods or tests, misinterpretation or misunderstanding of the significance of findings and experts going beyond their area of expertise or not explaining their findings or controversies and uncertainties in the science in a clear, impartial manner. They also note that experts have sometimes misunderstood their obligation of impartiality, have failed to apply the basic research methods of science and that judges and lawyers have failed to be sufficiently sceptical of both the science and the witnesses purporting to rely on it.85
[48] These problems, or aspects of them, have been addressed by several recent studies and Commissions of Inquiry. The Goudge Commission of Inquiry in Canada, The Law Commission Consultation Paper in the United Kingdom and the National Academy of Science (NAS) Report in the United States are recent examples.86 Of course, in Scotland, the inquiry relating to the McKie case is pending.87
[49] I cannot review all of these studies and reports comprehensively in the scope of this lecture. I will however discuss three main approaches to strengthening the judicial system's capacity to ensure that it receives reliable scientific evidence and to detect evidence that does not meet the appropriate standard.
Expert Impartiality
[50] One area of concern has been the lack of objectivity and independence of experts. For example, the Goudge Report noted that Dr. Smith failed to understand this duty of impartiality. He testified that he had received no training or instruction in this regard. Indeed, he thought his role was to advocate for the Crown and to "make a case look good."88 This problem is not uniquely a Canadian one. In a study of problems with experts perceived by federal judges in the United States, the authors identified a lack of objectivity as one of the four most important issues from the judges' perspective.89 A distinct, but related problem, concerns the independence of the facilities and institutions carrying out forensic testing, one of the areas addressed by the NAS report.90
[51] The expert witness's obligation of impartiality has been addressed by judge-made law and Rules of Court. In Canada, England & Wales and Scotland, there is a duty of independence imposed on expert witnesses. An often cited statement of the expert's obligations may be found in National Justice Compania Naviera S.A. v Prudential Assurance Co. Ltd ("The Ikarian Reefer").91 As Cresswell J. put it at page 81:
'The duties and responsibilities of expert witnesses in civil cases include the following:
1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation ...
2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise ... An expert witness in the High Court should never assume the role of an advocate.
3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion ...
4. An expert witness should make it clear when a particular question or issue falls outside his expertise.
5. If an expert's opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one ... In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report ...' (References to other cases have been omitted).92
[52] In Scotland, Lord Nimmo Smith's judgment in McTear emphasized the requirement that experts be independent and their duty to the court. Experts must not take on the role of advocates; rather, they must provide independent assistance to the court.93
[53] In some jurisdictions, this obligation has been incorporated into the Rules of Court and/or Practice Directions. For example, in the Province of Ontario, Canada, the rules require an expert to provide opinion evidence that is fair, objective and non-partisan and which relates only to matters within his or her area of expertise.94 This concept of independence has also been adopted in Part 35 of the Civil Procedure Rules (England and Wales)95 and Part 33 of the Criminal Procedure Rules (England and Wales).96 I am not aware of any similar Rules of Court or Practice Directions in Scotland. I do note that in a recent Tribunal expenses case the Tribunal Chairman refused to certify an expert pursuant to Rule of Court 42.13(3) because he had acted as the "representative" of one of the parties.97 Rule 42.13(2) and (3)98 allow additional expenses to be paid to witnesses whom the court has certified are "skilled witnesses" and the Chairman seemed to consider expert independence to be an important factor in making this determination. This interpretation of the Scots Rule of Court suggests that experts must act independently. The Law Society of Scotland's Code of Practice for Expert Witnesses provides that when giving evidence, the role of an expert witness "is to assist the court and remain independent of the parties."99 While Rule 42.13 has been interpreted as requiring experts to act independently and the Code of Practice for Expert Witnesses requires the same, the Rules of Court in Scotland do not set out an expert's duty of independence as explicitly as do the Rules in Canada and England and Wales.
[54] While this duty clearly exists, there is much to be done to ensure that expert witnesses are aware of and understand this obligation, at least if the Canadian experience in the case of Dr. Charles Smith is anything to go by.
[55] As to how best to address the broader question of the independence of facilities and institutions performing forensic tests and supplying forensic evidence, opinions are divided. While the NAS report favoured removing facilities from the control of the prosecution and the police, at least one other inquiry has found this to be unnecessary and perhaps in some respects even counter-productive.100
[56] The recent reports and studies that I have reviewed address many ways in which the quality of expert testimony, particularly in criminal cases, could be monitored and improved. The NAS report, for example, proposed: the adoption of standard terminology to be used in reporting and testifying as well as model laboratory reports for different forensic science disciplines; the development of tools for advancing measurement, validation, reliability, information sharing, and proficiency testing in forensic science to establish protocols for forensic examinations, methods, and practices; mandatory laboratory accreditation and individual certification; adoption of routine quality assurance and quality control procedures by forensic laboratories and the establishment of a national code of ethics for all forensic science disciplines to be enforced through a certification process for all forensic scientists.101 The Goudge Report made detailed recommendations with respect to training, accreditation, oversight and quality assurance in the field of forensic pathology.102 The Home Office and the Royal College of Pathologists have jointly developed the Code of Practice and Performance Standards for Forensic Pathologists.103 Each section of the Code explains an activity of the forensic pathologist (e.g. scene of discovery of the body, autopsy, autopsy report, testimony etc.) and sets out a statement of the standard practice expected. The Law Commission has raised the issue of accreditation of experts in its recent consultation document.104
[57] Hartshorne and Miola suggest that accreditation of experts could contribute to improving expert reports and testimony.105 They also suggest that problems associated with expert evidence may not be rooted in any lack of expertise in a field but rather in a lack of familiarity with legal and courtroom processes.106 A survey conducted by the Chief Medical Officer found that 59% of paediatricians who gave medical expert evidence in child care proceedings had never received training for the role of an expert witness.107 A lack of familiarity with court processes and an expert's role may lead to an expert omitting relevant information.
[58] Some quality control issues in civil proceedings are currently addressed by rules of court in some Canadian jurisdictions as well as in England and Wales. For example, the Ontario Rules require experts to set out their qualifications and educational experiences in their report. They also require the expert's report to explain the range of opinions on an issue, if these exist, and the reasons for the expert's own opinion.108 The Rules and a Practice Direction in England and Wales require similar information.109 With respect to criminal matters, the Criminal Procedure Rules require experts to provide details about their qualifications, to set out the details of the facts given to them, the facts of which the expert has personal knowledge and the qualifications of anyone who carried out tests (etc.) on which the expert relies, to disclose the range of opinions that exist on the matter and to disclose any qualifications on the opinion offered.110 In addition, the Criminal Procedure Rules give the court the power to direct experts to discuss the issues and prepare a statement of issues for the court, explaining where they agree and disagree.111
Improving Judges' Scientific Literacy
[59] The disciplines of law and of science have different methods, different objectives and different vocabularies. It is no doubt important for a scientist who is plunged into a legal arena to have some understanding of the legal culture. But it is also important for the judge who will have to assess the scientific evidence to have some understanding of the scientific culture from which the evidence is offered. The law seeks to find a final resolution for a particular controversy whereas scientific conclusions are subject to perpetual revision.112 The scientific method of research and analysis may be unfamiliar to judges. The terms "evidence," "opinion" and "reliability" have different meanings and connotations for judges than they have for scientists. Of course, judges cannot through judicial training be turned into scientists and their adjudicative role places strict limits on their resort to their own knowledge in any event. However, efforts have been made to better equip judges to understand how the reliability of scientific conclusions are assessed and to ask the right questions to enable them to discharge a more rigorous gate-keeping role with respect to expert and technical evidence.
[60] In the United States, the Federal Judicial Center published the Reference Manual on Scientific Evidence, the object of which is to assist federal judges in recognizing the characteristics and reasoning of science as it is relevant in litigation.113 While the Manual cautions judges that it is not intended to tell them what evidence should be admitted, it is designed to help judges identify and narrow the issues concerning scientific evidence by providing an account of the frequently contentious pivotal issues and thereby improve the dialogue between judges and the parties concerning the basis of the proposed testimony.114 The NAS report recommended training for judges (and lawyers) and some such programs have been developed.115
[61] In Canada, the National Judicial Institute (NJI) has offered specialized programs and segments of larger programs designed to assist judges in understanding the fundamental principles of scientific investigation as well as the basics of some commonly encountered areas of scientific evidence. The Goudge Report recommended that the Institute consider developing additional programs for judges to assist them in better understanding threshold reliability and the scientific method in determining the admissibility of expert evidence.116 It also recommended preparing a Canadian equivalent to the American Reference Manual on Scientific Evidence.117
[62] One of the NJI programs led to development of a list of important questions that judges should ask themselves in considering the reliability of scientific evidence and which, when appropriate, might form the basis of questions to a proposed expert.118 The questions are these:
1. Is the evidence science?
1. Are there first hand observations made about facts?
2. Are these observations reliable in the sense that they are precisely defined, in precise contexts and reproducible?
3. Are there clear criteria for acceptance and rejection of results?
2. Is the methodology, application, process or technique unusual, disputed or new?
3. Is the proposed evidence good science?
1. Is what is being observed adequately linked to what is being reasoned? (Construct validity)
2. Are there equally plausible alternative conclusions? (Internal validity)
3. Do the observations always measure the same thing? Have they been replicated? Is there corroboration? (Reliability, in the scientific sense) Are the conclusions generally applicable to other situations? (External validity)
4. Is the evidence reliable in the legal sense?
1. Does the technique do what it purports to do?
2. Is this witness capable of applying those techniques?
3. Has the witness properly applied the technique in this instance?
[63] There are, of course, many issues to consider about the proper limits of the judge's role in an adversary process. In Canada, it is generally accepted that at least in criminal cases, the judge has a duty to ensure that only admissible evidence is admitted. It follows that there is a least some scope for judicial intervention – indeed in some cases there is a duty to intervene – even absent an objection from the defence.
[64] Scientific and technical evidence may be important instruments of justice. But they also give rise to several challenges to the adversary trial process. These challenges are not much reflected in the legal doctrine relating to opinion evidence. The judge-made and statutory law in some jurisdictions has acknowledged this in at least three ways: first by focusing the admissibility inquiry on the technical nature of the evidence rather than on whether it is offered in the form of opinions; second, by imposing a duty of impartiality on expert witnesses; and third, by requiring a demonstration of threshold reliability as part of the rule of admissibility. It seems, however, that even quite rigorous admissibility standards are not sufficient to address all the challenges posed by scientific and technical evidence. Clear professional standards, appropriate training, credentialing and quality control for expert witnesses have the potential to address more directly the sorts of problems that arise from the evidence of unqualified, careless, overworked or even unscrupulous experts. Finally, the legal profession and the judiciary need to improve their scientific literacy. To that end, training and resource materials have the potential to help the Bar and the bench to understand the science underlying proposed testimony and to be aware of potential pitfalls and signs of danger in that evidence. As Justice Breyer of the Supreme Court of the United States put it in his Introduction to the Reference Manual on Scientific Evidence, "we must build legal foundations that are sound in science as well as in law. ... [through] a joint scientific-legal effort that will further the interests of truth and justice alike.""119
The lecture - complete with biographical material and footnotes - can be found at:
http://webcache.googleusercontent.com/search?q=cache:CDng7v7IeB8J:www.scottishlawreports.org.uk/publications/macfadyen-2011.html+%22forensic+investigations+and+miscarriages+of+justice%22&cd=32&hl=en&ct=clnk&gl=au&source=www.google.com.au
DR. FREDDY PATEL; MEDICAL COUNCIL SUSPENDS HIM FO...
IAN TOMLINSON INQUEST; (MARCH 30): LINK TO THE GU...
THOMAS HAYNESWORTH; DEFENCE AND STATE LAWYERS SAY...
TROY DAVIS: NO PHYSICAL EVIDENCE TIES HIM TO THE C...
IAN TOMLINSON INQUEST; (MARCH 29); LINK TO THE GU...
JOHN THOMPSON; (1); SUPREME COURT DENIES EXONERAT...
TROY DAVIS; U.S. SUPREME COURT DISMISSES HIS APPE...
IAN TOMLINSON INQUEST: LINK TO THE GUARDIAN'S LIV...
CORNELIUS DUPREE JR. EXONERATED ON DNA STORED IN ...
THE CHALLENGES OF SCIENTIFIC EVIDENCE; IMPORTANT ...
DR. FREDDY PATEL; 1; INQUEST INTO G20 DEATH OF NEW...
THE MONFILS CONSPIRACY (5); MICHAEL JOHNSON DENI...
THE MONFILS CONSPIRACY (4); THE CONVICTION OF SIX ...
REQUIEM FOR A FLAWED PATHOLOGIST; THE ONTARIO COLL...
THE MONFILS CONSPIRACY; (2); THE CONVICTION OF SI...
"THE MONFILS CONSPIRACY; (1) THE CONVICTION OF SI...
THOMAS HAYNESWORTH; VIRGINIA A.G. OFFERS PERSONAL ...
PAUL AND ZABETH BAYNE; APPEAL OF DECISION TO BE F...
THOMAS HAYNESWORTH; HIS ACCUSER IS ANOTHER VICTI...
PHILLIP MILLS (3); DISCREDITED FORENSIC ANALYST; ...
SMITH REPRIMAND SCHEDULED FOR FRIDAY MARCH 25, 201...
LOUISE REYNOLDS RETROSPECTIVE (PART I); FASCINATI...
PAUL AND ZABETH BAYNE; B.C. JUDGE REJECTS "SHAKEN...
THOMAS HAYNESWORTH; RELEASED FROM PRISON EARLIER ...
LOUISE REYNOLDS RETROSPECTIVE; (PART H); POLICE, P...
THOMAS HAYNESWORTH; PAROLED ON FRIDAY; REMARKABLE ...
LOUISE REYNOLDS RETROSPECTIVE (G): KINGSTON POLICE...
CAMERON TODD WILLINGHAM; "FIRE INVESTIGATOR IN TH...
LOUISE REYNOLDS RETROSPECTIVE (PART F); MYSTERY OF...
QUENTIN LOUIS: WISCONSIN APPEAL COURT DECISION; IM...
LOUISE REYNOLDS RETROSPECTIVE; (PART E); PROSECUTO...
TIMOTHY COLE; TEXAS SENATE PASSES EYEWITNESS IDENT...
QUENTIN LOUIS; SHAKEN-BABY SYNDROME CASE; WISCONSI...
LOUISE REYNOLDS RETROSPECTIVE (PART D); KINGSTON P...
LOUISE REYNOLDS RETROSPECTIVE: (PART C); REVELATIO...
DR. FREDDY PATEL: FORMER HOME OFFICE PATHOLOGIST F...
LOUISE REYNOLDS RETROSPECTIVE (PART B): EXCERPTS ...
ONTARIO SHAKEN BABY SYNDROME PROBE; GOVERNMENT R...
BREAKING NEWS; ONTARIO SHAKEN-BABY SYNDROME CASES ...
LOUISE REYNOLDS RETROSPECTIVE: PART "A"; HER LAWY...
BREAKING NEWS; LOUISE REYNOLD'S LAWSUIT AGAINST CH...
GENE MORRISSON; (PART 10); CHARGING CHARLES SMITH;...
CHARLES SMITH; SMITH SHOULD BE CHARGED WITH CRIMI...
GENE MORRISON; (PART 9); JAILED FRAUDULENT FORENSI...
GENE MORRISON: PART 8; JAILED FRAUDULENT FORENSIC ...
GENE MORRISON: (PART 7); JAILED FRAUD FORENSIC E...
ILLINOIS DEATH PENALTY: CHICAGO SUN-TIMES EDITORIA...
CAMERON TODD WILLINGHAM; "INCENDIARY: THE WILLING...
CAMERON TODD WILLINGHAM: GOOD NEWS STORY! SCIENC...
HASSAN DIAB: EXTRADITION CASE; RULING IN JUNE; JU...
ILLINOIS DEATH PENALTY: BBC REPORTS GOVERNOR PAT ...
CHARLES SMITH: INFANTICIDE CHARGE DROPPED AGAINST...
GENE MORRISON: (PART 6); JAILED FRAUDULENT FORENSI...
PAUL SHRODE: TEXAS; FORMER DEPUTY MEDICAL EXAMINER...
ILLINOIS DEATH PENALTY; ; (PART 2); CHICAGO SUN-T...
HASSAN DIAB: EXTRADITION HEARING; DEFENCE ARGUES ...
ILLINOIS DEATH PENALTY: (PART 1); COUNTDOWN; THE C...
SHAKEN BABY SYNDROME: ( 8); IMPORTANT CAUTION TO ...
CHARLES SMITH: TOP JURIST ON INNOCENT PEOPLE P...
HASSAN DIAB; PROSECUTOR MAKES CLOSING SUBMISSIONS ...
SHAKEN-BABY SYNDROME: (PART 7); CALIFORNIA LAWYER...
HANK SKINNER; EDITORIAL; DALLAS MORNING NEWS; "A...
HANK SKINNER: ANALYSIS OF SUPREME COURT DECISION; ...
HANK SKINNER; BREAKING NEWS; ASSOCIATED PRESS; SU...
THE CHARLES SMITH BLOG MAKES LIST OF TOP FIFTY RE...
GENE MORRISON: (PART 4); JAILED FRAUDULENT FORENS...
SHAKEN-BABY SYNDROME (PART 6); ARIZONA JUSTICE PRO...
GENE MORRISON; (PART 3); JAILED FRAUDULENT FORENS...
SHAKEN-BABY SYNDROME (PART 5): GROUND-BREAKING STU...
SHAKEN-BABY SYNDROME (PART 4): BRITISH POLICE ACCU...
HASSAN DIAB CASE; PRESECUTOR ARGUES THAT CONTESTED...
CAMERON TODD WILLINGHAM: AUSTIN STATESMAN EDITORIA...
CAMERON TODD WILLINGHAM; EDITORIAL; DALLAS MORNIN...
HASSAN DIAB; ANOTHER SETBACK; JUDGE SAYS PROSECU...
INFANTICIDE DEFENCE SURVIVES ONTARIO GOVERNMENT'...
SHAKEN-BABY SYNDROME: (PART 3); RADLEY BALKO ON E...
SHAKEN-BABY SYNDROME; (PART 2); ROBERT LANGRETH RE...
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HASSAN DIAB; JUDGE REJECTS LAST DITCH ATTEMPT TO H...
JOHN THOMPSON: TERRIBLE IMPLICATIONS OF THE SUPRE...
SHAKEN BABY SYNDROME; (PART 1); "SHAKEN -BABY SYN...

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