Could a simple, easy to consume document, provide the protection we need against wrongful convictions?
Consider the article below by Joshua Rozenberg (original article here) writing in the Guardian. It relates to UK law but I think that the underpinning suggestion, that of a jury (and judge, and advocates) primer on a subject is an excellent idea. While the driver in the case was an earprint, it could quite easily have been a bitemark case. Consider this, an easy to consume guide to bitemarks that highlights all of the strengths and weaknesses of the discipline, with references to appropriate scientific evidence, examples of best practice and the current agreed thinking of the representative forensic organisations. If this was agreed to, and then provided to every Court in a case in which bitemark evidence was being presented - wouldn't this have the following benefits:
* Chilling effect on over reaching by experts. Experts would know that the Court would have access to the primer and hence would need to keep their conclusions and analysis within the limits of the agreed position, or be able to defend robustly why they have departed from it.
* Enable jurors to place the strength of the evidence in context. In appeal cases it is frequently stated that bitemarks should be admitted and that it is the trier of facts responsibility to assess the weight of this evidence. I would have thought this almost impossible for a lay person - but perhaps the primer could help.
* Assist cross examination. Thought to be the correcting feature of expert testimony, cross examination is often poor and frequently because counsel has not understood the science, the controversies or the issues within it. By ensuring that all parties have access to the primer, witnesses can be held to the standards described within it and defendants could be confident that their representatives had at least a basic understanding of the issues within the discipline.
As always, as you can see below, there is no money to provide funding for such guides, and the issue of updates is always problematic. However, the ABFO, BAFO and other organisations could seek to develop a primer and update this on an annual basis making it free to download and to kick start the process of informing and regulating the presentation of bitemark evidence in Court. It would go a long way to demonstrating commitment to reducing erroneous bitemark evidence.
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Thomas of Cwmgiedd, lord chief justice of England and Wales, insisted that senior judges were not acting unconstitutionally in introducing the reforms themselves because the necessary rule changes had been signed off by Chris Grayling, the justice secretary.
Thomas disclosed this “novel way” of implementing Law Commission proposals when delivering the annual Kalisher lecture at the Old Bailey on Tuesday evening. The Kalisher trust supports students who aspire to become criminal barristers. In March 2011, the government’s law reform advice body recommended legislation to deal with concerns that scientific evidence was being admitted too readily and with too little scrutiny. Law commissioners called for a new reliability-based admissibility test for expert evidence in criminal proceedings. The test was designed to reduce the risk that juries would reach their conclusions on unreliable evidence. Experts would be questioned in court about their methods and experience, enhancing public confidence and leading – it was hoped – to fewer miscarriages of justice.
In support of its recommendations, the Law Commission gave the example of a case in which a prosecution expert told a jury he was “absolutely convinced” that an earprint found on a window had been left by a man accused of murder. Mark Dallagher spent seven years in prison before DNA evidence established that the print could not have come from his ear. If the Law Commission’s test had been applied, the expert’s evidence would never have been admitted. However, ministers said in November 2011 that they could not afford to introduce reforms that would involve additional pre-trial hearings. Responding to the Law Commission’s recommendations, the Ministry of Justice explained that “without certainty as to the offsetting savings which might be achieved, when set against current resource constraints it is not feasible to implement the proposals in full at this time”.
Instead, the government suggested amendments to criminal procedure rules that, while “falling short” of the recommended reliability test, “would go some way towards reducing the risk of unsafe convictions”. Those amendments were subsequently introduced and the judges had buttressed them with new practice directions and new precedents. “There has been no primary legislation and there won’t be,” Thomas said. “But with changes in the common law that paralleled the [Law Commission] report and introduced a different test … we have nearly implemented the entire report.”
Even so, the lord chief justice continued, further improvements were needed in the use of forensic science if juries and the wider public were not to lose faith in it.
While insisting that it would be inappropriate for him to comment on the government’s decision to close its Forensic Science Service in 2012, he expressed “great concern” that the private companies which have replaced it were treating their methods as commercially confidential.
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Thomas welcomed moves by the bar’s advocacy training council to ensure that lawyers understood how to test the reliability of expert witnesses in cross-examination. He also wanted statutory powers for the government’s forensic science regulator, “to ensure and, if necessary, enforce compliance with quality standards”. Courts depended on the integrity of expert witnesses and judges “must take whatever stringent steps are open to them” if experts did not act with integrity. Although he avoided the phrase himself, Thomas appeared concerned that juries were being blinded by science. Jurors should not be expected to understand and interpret complex scientific concepts, he said. Instead, their task should be to decide between opposing scientific views. To assist them and reduce the risk of juries reaching perverse decisions, the lord chief justice called for juries to be given written “primers” on relevant scientific concepts. These short, plain-English guides would be restricted to areas on which there was consensus within the scientific community but could assist juries in understanding the concepts in cases they were hearing.
Thomas did not say who would pay for these guides to be written or ensure that they were kept up to date. But it was a project he hoped to pursue in the coming years. And, as he said, the judges might find them helpful too.
Are juries being blinded by science?
Lord chief justice says jurors should not be expected to understand complex scientific concepts from expert witnesses
Expert witnesses are being subjected to greater scrutiny by the criminal courts, despite the government’s refusal to implement safeguards recommended by its own law reform advisers. But Lord
Thomas of Cwmgiedd, lord chief justice of England and Wales, insisted that senior judges were not acting unconstitutionally in introducing the reforms themselves because the necessary rule changes had been signed off by Chris Grayling, the justice secretary.
Thomas disclosed this “novel way” of implementing Law Commission proposals when delivering the annual Kalisher lecture at the Old Bailey on Tuesday evening. The Kalisher trust supports students who aspire to become criminal barristers. In March 2011, the government’s law reform advice body recommended legislation to deal with concerns that scientific evidence was being admitted too readily and with too little scrutiny. Law commissioners called for a new reliability-based admissibility test for expert evidence in criminal proceedings. The test was designed to reduce the risk that juries would reach their conclusions on unreliable evidence. Experts would be questioned in court about their methods and experience, enhancing public confidence and leading – it was hoped – to fewer miscarriages of justice.
In support of its recommendations, the Law Commission gave the example of a case in which a prosecution expert told a jury he was “absolutely convinced” that an earprint found on a window had been left by a man accused of murder. Mark Dallagher spent seven years in prison before DNA evidence established that the print could not have come from his ear. If the Law Commission’s test had been applied, the expert’s evidence would never have been admitted. However, ministers said in November 2011 that they could not afford to introduce reforms that would involve additional pre-trial hearings. Responding to the Law Commission’s recommendations, the Ministry of Justice explained that “without certainty as to the offsetting savings which might be achieved, when set against current resource constraints it is not feasible to implement the proposals in full at this time”.
Instead, the government suggested amendments to criminal procedure rules that, while “falling short” of the recommended reliability test, “would go some way towards reducing the risk of unsafe convictions”. Those amendments were subsequently introduced and the judges had buttressed them with new practice directions and new precedents. “There has been no primary legislation and there won’t be,” Thomas said. “But with changes in the common law that paralleled the [Law Commission] report and introduced a different test … we have nearly implemented the entire report.”
Even so, the lord chief justice continued, further improvements were needed in the use of forensic science if juries and the wider public were not to lose faith in it.
While insisting that it would be inappropriate for him to comment on the government’s decision to close its Forensic Science Service in 2012, he expressed “great concern” that the private companies which have replaced it were treating their methods as commercially confidential.
Where a development in forensic science is used in court, information that goes to the reliability of the technical or scientific method used must be put into the public domain and made available to all. That is because, in relation to the use of such science in criminal justice, commercial considerations of a kind which might ordinarily be applicable must take second place to the provision of all material which is relevant to establishing innocence or proving guilt.
Thomas welcomed moves by the bar’s advocacy training council to ensure that lawyers understood how to test the reliability of expert witnesses in cross-examination. He also wanted statutory powers for the government’s forensic science regulator, “to ensure and, if necessary, enforce compliance with quality standards”. Courts depended on the integrity of expert witnesses and judges “must take whatever stringent steps are open to them” if experts did not act with integrity. Although he avoided the phrase himself, Thomas appeared concerned that juries were being blinded by science. Jurors should not be expected to understand and interpret complex scientific concepts, he said. Instead, their task should be to decide between opposing scientific views. To assist them and reduce the risk of juries reaching perverse decisions, the lord chief justice called for juries to be given written “primers” on relevant scientific concepts. These short, plain-English guides would be restricted to areas on which there was consensus within the scientific community but could assist juries in understanding the concepts in cases they were hearing.
Thomas did not say who would pay for these guides to be written or ensure that they were kept up to date. But it was a project he hoped to pursue in the coming years. And, as he said, the judges might find them helpful too.