Whether the Current Rules, for Admitting Expert Evidence in Criminal Proceedings, Are Too Laissez-Faire - Research Paper Example

Critically Analyze Whether the Current Rules, For Admitting Expert Evidence in Criminal Proceedings, Are Too Laissez-Faire Introduction When crime is committed, the culprit is always innocent until proven guilty by a court of law. The judge bench does entirely depend on evidence and testimonials from the prosecution and defense side. This information is critically investigated and used to reach the final verdict on the case. Forensic science is one of the most widely used evidence research strategy and presentation in our current court of law. However, there is need to be sure and verify that all the information being presented in court has been well researched on before admission. The forensic experts working on evidence are humans who are never perfect. They are also susceptible to make errors during the criminal investigation (Shelton, 2011). There are three criteria in which the judge is allowed to admit evidence from an expert. The first criteria state that “When the court needs any assistance from an expert; the expert’s evidence must deal with something” (McKie, 2012). This is so because without instructions or advice from an expert, the court may be unable to reach a sound conclusion as to the subject matter” (McKie, 2012). The second criteria concern the fact that “the expert witness must have sufficient understanding of the theory and practice of the subject question” (McKie, 2012). Moreover, the last criteria check the possibility of substantial evidence proposed in the experts report being reliable. This issues a directive that all forensic experts must be part of registered body of science. The expert should have extended experience in the field. They should also have good reputation and acknowledgement in the field to guarantee justice in opinion offered (Procedures for the Evidence Act, 1999). Discussion The entire discussion in this paper revolves around the fact that across the world justice systems are failing. This is due to the fact that error created by forensic expert’s evidences tabled cannot be validated by the courts (Bohan, 2004).To make the matter worse, the judiciary systems are not even talking about the weakness in evidence validation. This has increases vast doubt about the authenticity, accuracy and admissibility of forensic evidences by judges (McKie, 2012). Although not all cases are faced with miscarriage of justice as a result of sham evidence, people who are innocent do end up behind bar. Flawed experts evidence can result in criminal conviction and even execution by law courts. The truth of the matter is that, how most judged verify the mentioned criteria is a bit of a misery. In real sense it is difficult to reveal procedures followed by judges in reaching such decision. This contributes toward admission of evidence from expert without following the mentioned criteria. The current rules and procedures used in admitting forensic evidence in a criminal proceeding in unreliable. This is because, not all forensic experts are really proved to be experts. Before information is admitted from a forensic expert, the expert should first qualify on the basis of the following grounds. The academic qualification of the expert should be verifiable to be excellence. It is ironical when a defendant is asked to wholesomely respond to evidence and information from a quack (Wilson, 2009, Journal of Criminal Law). This is absolutely critical mode of ironing out evidence from an expert without properly scrutinizing their qualification. In reference to Dr. Baldwin’s case (2009, Journal of Criminal Law), despite being regarded as highly qualified academically, not all his evidence should have been automatically admitted by any law court (Durham Law Review, 2005, Wales Law Commission Report). One of the noted laissez-faire in admission of forensic evidence was recorded from Dr. Baldwin’s story (2009, Journal of Criminal Law). Due to his BA, MA and PHD academic credentials, one judge known as Bingham LJ automatically admitted the evidences he tabled in the field on phonetics (Wilson, 2009, Journal of Criminal Law). This was done in disregard of the evidence admission process rules. In other incidents, Professor Vanezis who is an esteemed well learned pathologist was also involved in laissez-faire evidence admission (Wilson, 2009, Journal of Criminal Law). Pathologist is a scientist who examines bodies for the aim of establishing cause of death. That is the expertise role of a pathologist. Contrary to this, the professor was included in facial mapping and submitted the information gathered to the court of law as evidence. The evidence was admitted without validation due to his great reputation as a professor. Moreover, another quack was from Manchester University. Mr. Neave (2009, Journal of Criminal law) who is an artist of psychology did a forensic investigation on facial mapping. His findings were also admitted by the judge and used against the accused person. This is not all; Professor Morris (2009, Journal of Criminal law) who is a well learned pathologist filed forensic evidence on statistics. This evidence was admitted by the judge despite the professor having no clue on issue related to statistics. In most law courts, it is believed that higher qualification in one subject guaranteed vast information in any other discipline. This is one cause of sham investigation resulting laissez-faire evidence admission (Forensic Accountant, 2012). The shocking news is that most judges always admit forensic evidence of such nature. This means that many people who are convicted to criminal offence do suffer due to poor evidence collection by forensic experts. This is because, to articulate individual expert may in one way or another determine whether the expert is legitimate to testify across discipline (Wilson, 2009, Journal of Criminal Law). This must be a guarantee mechanism that inhibits admission of errors in one way or the other (Wilson, 2009, Journal of Criminal Law). The other reason for laissez-faire evidence is that most of the evidence submitted to judges is basically too scientific beyond the juror’s knowledge. Such information may in one way or the other be more technical and complex to majority of the jurors (Law Commission, 2013). This is because many jurors do lack professional experience that would help them scrutinize the evidence adequately. This means that such evidences are admitted without passing through a clear test. The other critical rule not observed when admitting forensic evidence is failure to deeply test the evidence to establish reliability of the experts evidence (Law Commission, 2013). In reality most advocates do not always cross examine information submitted to them by forensic experts. This means that it is always impossible to effectively reveal any trace of flaw emanating from the methodology of data generation. This is clear that the judge will eventually used the unreliable evidence admitted to reach the final decision. This is miscarriage of justice (The Law Society, 2013). The current rules are insufficient to validate reliability of forensic evidence. In regard to this most advocates and judges have been accused for relying upon sham investigation and use them to deliver a court verdict. However, it emanates that most advocates and the juror are occasionally failing to properly scrutinize reliability as a precursor of evidence admission (Wilson, 2009, Journal of Criminal Law). This will allow advocates and judges to objectively assess the piece of evidence presented in that specific field. In addition to this, such practice must be executed independent of the case context. There is also need to validate that the information to be tabled before the judge has also been incorporated properly with the facts of the case (Roque, & Edmond, 2012). This also proposes the need to avoid irrelevant evidence being tabled to the judge. To eliminate such error, there is also need to carryout case specific assessment process. The case specific assessment process has to be supplemented with core principals, techniques and assumptions that are applied to the facts of the case (Wilson, 2009, Journal of Criminal Law). It has been accepted by most people in the judiciary that occasionally, convictions may in one way or the other have been secured upon triad alone. In Harris case (2009, Journal of Criminal Law), a conjoined appeal concerning the triad is illustrative to this claim (Wilson, 2009, Journal of Criminal Law). According to Harris (2009, Journal of Criminal law), the court upheld two of the defendant’s appeals. This saw the case of Rock on murder be changes to manslaughter conviction (Wilson, 2009, Journal of Criminal Law). In another incident, the accused Mr. Cherry’s appeal (2009, Journal of Criminal law) was dismissed. The reason for the two courts decision was purely based on the evidence provided. This means that forensic evidence was admitted by the judge without passing through an important scrutiny process. In the above case, the testimony against Mr. Rock was that he was very bad tempered and a neighbor overheard him shout at the child to “fucking shut up” just before the death (Wilson, 2009, Journal of Criminal Law). In Cherry’s case, (2009, Journal of Criminal law) Dr. Whitwell did conduct the postmortem on the dead body. According to his examination, he found that there were two bruises at the back of the head of the deceased. Additionally, there were five more bruises on the deceased body. According to his report, five bruises were relatively consistent with pressure from fingers (Wilson, 2009, Journal of Criminal Law). According to the expert, that was the only possible cause of such injury. On the same case, another surgeon also revealed the cause of the five bruises as being held by fingers. Following the legal directive issued by the current rules, there was no scrutiny of the facts by the judge before admitting the evidence. In the above cases, there was neglect by the judge who blindly relied on expert’s information to make decisions. Such triad hypothesis required proper analysis and empirical evidence to be included. The prosecution was supposed to show that the hypothesis was supported by sufficient observation data (Wilson, 2009, Journal of Criminal Law). This means that more intense research with the control data was to have been done before the evidence was admitted. The evidence tabled by the forensic experts had insufficient scrutiny and shallow research was conducted. It is sad that such evidence was used to justify opinion evidence founded on it (Wilson, 2009, Journal of Criminal Law). From the above information, the policies of admitting evidence by the judge were bridged resulting in laissez-faire evidence. The judge would have never permitted the prosecution to seek solution solely by the fact that an infant was exhibited in the triad (Wilson, 2009, Journal of Criminal Law). Alternatively, the judge was never supposed to accept the prosecution experts to express their opinion evidence. This is incorrect when experts are allowed to justify that the triad of injuries was holy and certain proof of a non-accidental trauma. The law also need to terminate such certainty and instead should emphasize on researched evidence rather than empty beliefs. Finally on the same case, the other weakness exhibited in the evidence admission was the fact that the experts opinion was in line supporting the prosecution assertion. This in other words meant that the prosecutor was right and the accused was already convicted. This is high degree of injustice achieved by existing rules being abused. The best thing the prosecutor experts would have done was to modify or weaken the case evidence. This was to be done in order to reflect the uncertainties of gaps associated with the hypothesis of non-accidental trauma (Wilson, 2009, Journal of Criminal Law). This would have created room for more research before the judge released his verdict. The other reason for admission of weak evidence by judges was the fact that there was no scientific method of proving force used and severity of damage caused to the deceased (Wilson, 2009, Journal of Criminal Law). This is absolutely correct and for practical reasons, the law allowed judges to admit such weak evidence from forensic experts. Unless there is an accurate scientific method developed to be used to correlate the degree of injury created on the deceased, then there will always be some weaknesses in evidences from experts. According to Dr. Gage LJ (2009, Journal of Criminal law), who was the expert in Harris case, the only way to eliminate this weakness is to allow experiment be conducted on living humans. On the other hand, this is impossible because the human rights policies condemn this act as abuse of human rights (Gary, 2013). The existing rule of failing to disclose test results is another leeway that contributes towards miscarriage of justice. There is need to enforce law and allow evidence tabled by forensic experts be disclosed in any criminal proceeding. This will protect the entire judiciary and lawyers from being sidetracked by the forensic experts. The best example is in Clark case (2009, Journal of Criminal law). Professor Meadow, a well known pediatrician was involved in erroneous testimony against Clark (Wilson, 2009, Journal of Criminal Law). The expert tabled forensic evidence that had unreliable statistical information. The expert in his evidence claimed that “There was 1 in 73 million chances of two natural cot deaths in the same family” (Wilson, 2009, Journal of Criminal Law). However, during consultation, Hon. Theodore RE pointed out that the statistical evidence was out of the expert’s area of professionalism (Wilson, 2009, Journal of Criminal Law). He went ahead and suggested very specifically the need of other expertise from Expert Evidence Consultation Response to confirm the experts correct remit in the evidence. This accords the current common laws that allows any expert to submit any piece of evidence as long as he has sufficient experience and knowledge on the subject to render his opinion (Wilson, 2009, Journal of Criminal Law). In another scenario, Judge Thomas L.J also instructed thorough investigation to be carried out on the expert witness who was researching on the evidence. This was to primarily target the expert’s qualification, experience and fields of expertise (Wilson, 2009, Journal of Criminal Law). Additionally, on a similar case involving shoddy evidence research from an expert an accused person was convicted of crimes not committed. The best example is the case of Dallagher conviction (2009, Journal of Criminal Law). This case was determined by the judge based on the forensic expert’s opinion. The word used here is “Opinion.” Nowhere in any court of law is an expert allowed to tell the judge what to do. This is what contributes to unreliable evidences being accepted by judges hence convicting innocent people without factual evidence. In Dallagher case, the forensic expert did relate an ear-print found on Dallagher with a latent ear-print found on the window at the scene of crime (Wilson, 2009, Journal of Criminal Law). The experts report had much evidence relating the defendant with the murder. Since the defendant had no evidence to support his denial of charges, it was wrong for the judge to rule out that he was guilty. It was not guaranteed that expert’s factual evidence automatically elicit a finding of guilt (Wilson, 2009, Journal of Criminal Law). According to consultation experts, ear-print evidence mostly relies on subjective factors rather than objectively verified measuring techniques (Wilson, 2001, Law Commission Report). It is known that most ear-print evidence is based on raw insufficient data and unreliable hypothesis. The expert never verified that every human ear had a unique print (Wilson, 2001, Law Commission Report). If it was so, then instead of fingerprint, people would have had ear-prints instead as form of identity. This revealed that ear-prints couldn’t solely be used to identify anyone since they were not unique in humans. This was ascertained to be a weakness in admission of evidence. It was also related that the forensic expert’s certainty of expression was a trick of hiding the weaker part of the research. If the correct policy on admission of evidence was followed, then the case would have changed from “being convicted” to remote possibility that the ear-print was left by someone else (Henry, 2005, House of Common Report). In conclusion, the case of Dallagher lacked proper validation of evidence which was an oversight of the judiciary. There was too much trust on expert evidence which contributed to miscarriage of justice (Henry, 2005, House of Common Report). In real sense, most jurors have empowered the forensic experts to an extent that they do express themselves imprecisely. It is clear that there is need of refining forensic expert’s language (Wilson, 2001, Law Commission Report). Following erroneous errors made by judges due to inaccurate evidence tabled by forensic experts, it is important to completely review the current laws in order to end the laissez-faire evidence admission. It is clear that experts’ witnesses are very important and instrumental in any criminal case proceeding. This is because, according to the current rules, the expert witness is allowed to take different stand and also provide opinion to the jury (The Law Commission, 2011). Such opinion evidence given by the expert witness contributes much to the judge final decision on the case. Moreover, the expert witness in also allowed to provide opinion evidence whenever there is a disputed issues the jury has been empanelled to resolve (The Law Commission, 2011). In many courts, judges call upon expert’s opinion precisely when it comes to issues related to scientific evidence. Many judges do lack proper knowledge and skills on the scientific area the expert’s evidence emanated from. Secondly, it is evident that in many areas experts evidence of doubtful reliability are admitted (Legal Information Institute, 2011). Most judges accept without scrutinizing pieces of evidence from forensic expert especially if it is scientific in nature. This happens due to developed culture of acceptance among judges that forensic evidence from experts is always reliable (Edmond, Cole, Cunliffe & Roberts, 2012). This makes the judges to readily accept opinion from forensic experts without even scrutinizing and validating it. In real scenario, Judge Andew Gilbart QC of Manchester revealed how often he was puzzled when hearing poor suggestion from forensic experts tabled before him (The Law Commission, 2011). He also added how shocked he used to be when he witnessed how ill advocates were when challenging the defense without forensic experts presence to advice them (The Law Commission, 2011). This means that it is the forensic expert’s opinion that determined the fate of any criminal case proceeding in a law court. From the above discussion, it is absolutely critical to note that the existing common laws of standards of sufficient evidence reliability should be enforced (Wilson, 2001, Law Commission Report). This is because, this law was well developed but the challenge comes to those who are supposed to enforce them. Instead of forming new laws, it is prudent that proper measure be put in place to ensure that the judiciary follows the correct procedure of validating evidence before admitting them. There is also need to ensure that detailed reading of the evidence tabled by forensic experts takes place. This should be enforced more precisely on science base pieces of evidence. It is clear that not all judges have better knowledge and experience on scientific evidence. However, this should not be an excuse to assert miscarriage of justice. Detailed reading of evidence and application of current common laws to test the evidence reliability must be applied (Wilson, 2001, Law Commission Report). This should be conducted before admission of any piece of evidence. Notable to mention is that it will create an open and transparent means of exclusion. There is also need to provide the jury with sufficient helpful guidance to aid them in discretion at common law (Wilson, 2001, Law Commission Report). Professor Robert (2009, Journal of Criminal law) made clear suggestions and insisted that evidence involve the policy of repeat testing. Repeat testing is the key concept many pathologist run away from. Robert also argues that most judges do not basically understand generic principals and instead, they always dwell on simply providing veneer of rationality to an irrational exercise (Wilson, 2009, Journal of Criminal law). Based on Robert statement, he argues that fault in admission of sham evidence by judges comes from the rules which lack clarity and rationality (Wilson, 2009, Journal of Criminal law). The argument suggests that the method of implementation is fairly better if the laws are changed. Moreover, Robert argues that there is need for the judges to be assigned forensic experts. The main role of the experts will be to assist in verification of evidence before admission. The experts will also serve in offering education in pre-trial consultation (Wilson, 2009, Journal of Criminal law). In comparison, it is known that when scientists need legal guidance primarily from experts they do go to lawyers. This can similarly be applicable to judges who can also seek legal advice from experts during the case. It has been noted that most judges skip this necessity and make case ruling without consulting the experts. Summary It is evident from the above analysis that there is need to develop a middle path to be used for admission of expert’s evidence. To elaborate on this, there is need for any evidence or information from a forensic expert to be validated in a professional manner before being absorbed as part of the proceeding evidence. Judges need to desist from simply accepting testimonies without prior questioning the credibility and reliability of the source (Heffernan, 2011). This will aid in eliminating miscarriage of justice. There is no need of creating new laws to facilitate this proposed change. The current law has every procedure required. What need to be done is strict law enforcement mechanism have to be put in place. There is need to develop a panel of experts in each discipline to be assessing the broadest pool of expert (Forensic Science Society, 2009). They also have the obligation to ensure that information from forensic experts is well researched on before being admitted. As part of the recommendation, there is need for the court to decline all requests targeting to adduce expert evidence. This should be done on scenarios where the probative value of the request is outweighed by the danger that it might mislead or create possible confusion on the judge decision (Forensic Science Society, 2009). This should call for immediate exclusion without guidance. Alternatively, the judge could issue exclusion with guidance. Whenever a request is made with the basis of beneficially clarification, then guidance on its execution could be issued. Moreover, there is need to elaborately develop a more robust approach to accreditation and regulation of forensic experts (Forensic Science Society, 2009). In addition, there is need for evidence to be disclosed to all relevant parties. This will ensure everybody scrutinizes the evidence and clear out any oversight. Moreover, the forensic experts will be cautious not to cook information and risk being declared incompetent (Kidane, 2008). To supplement the current common law, the parties tendering the evidence should also explain openly and deeply as to how the delivered evidence is related to the ongoing proceeding. This will serve as the first step of testing validity and reliability of the evidence (Forensic Science Society, 2009). Contrary, unexceptional cases, the court could be allowed to introduce an independent assessor to scrutinize and validate the tabled piece of evidence before admission. This should happen especially when the field of case evidence is from a technical subject where the judge has insufficient knowledge. References Bohan, T., 2004. 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