Another Excellent Article about the Dangers of Unchallenged Expert Evidence in Australian Courts from the September 2015 NSW Law Society Journal

Posted by Barbara Etter APM on 22 September 2015 | 0 Comments

A very interesting article about the issues surrounding some expert evidence in Australian courts including no need to establish the reliability of such evidence, and the clear need for defence counsel to challenge such evidence and even seek advice from an independent forensic scientist ahead of trial. See The article makes the point that expert evidence can cause innocent people to be convicted of crimes they did not commit. The article quotes Professor Gary Edmond who has stated that many - perhaps most - wrongful convictions or miscarriages of justice involve forensic scientific and medical evidence that was exaggerated, misleading or simply mistaken.

The article after talking about the mistakes made in Chamberlain states that it is unlikely that we would encounter an expert mistaking dust for a blood in a criminal trial today. I beg to differ. I am currently dealing with a case similar to Chamberlain where the jury were seemingly left with an impression of blood in an important area based on luminol testing (which is only a screening or presumptive test which can produce false positives for a range of other substances including overtreatment with luminol itself). In addition, in the particular case I refer to, the court was not made aware by the expert witness during testimony that all confirmatory tests for human blood in that area had been negative.

The author of the article, Maeve Curry, recounts a recent case that she was involved in and points out that in relation to an expert witness, serious limitations with their evidence was not disclosed or explained until put to them in cross-examination. She states:

It isn't hard to imagine a similarly circumstantial case resulting in a finding of guilt because the expert evidence is untested, perhaps misrepresented, likely misunderstood, and consequently given undue weight by the court ... If we don't challenge the double-edged sword to a duel, the tribunal of fact is left to somehow assess incriminating expert evidence in circumstances where, as Professor Edmond has pointed out, they are unlikely to appreciate, and unlikely to be told in detail and impartially, about serious methodological oversights, actual abilities, error rates, peer review, general indifference to contextual bias, lack of standards, and what is actually known about the subject matter beyond the courtroom.

The article comments that the admissibility of expert evidence is the subject of increasing criticism from scientific bodies and discordant views from the bench.



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