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Abstract
This article provides an explanation of the duties and responsibilities owed by forensic practitioners (and other expert witnesses) when preparing for and presenting evidence in criminal proceedings. It is written in the shadow of reports by the National Academy of Sciences (US), the National Institute of Standards and Technology (US), the Scottish Fingerprint Inquiry and a recent publication entitled ‘How to cross-examine forensic scientists: A guide for Lawyers’. The article examines potential responses to questions focused on the need for scientific research, validation, uncertainties, limitations and error, contextual bias and the way expert opinions are expressed in reports and oral testimony. Responses and the discussion is developed around thematics such as disclosure, transparency, epistemic modesty and impartiality derived from modern admissibility and procedure rules, codes of conduct, ethical and professional responsibilities and employment contracts. The article explains why forensic practitioners must respond to the rules and expectations of adversarial legal institutions. Simultaneously, in line with accusatorial principles, it suggests that forensic practitioners employed by the state ought to conduct themselves as model forensic scientists.
Notes
1. Edmond G, Martire K, Kemp R, Hamer D, Hibbert B, Ligertwood A, … White D. How to cross-examine forensic scientists: a guide for lawyers. Aust Bar Rev. 2014;39(2):174–196.
2. Like HTCE, the discussion of methods (e.g. validation and error rates) in this article is primarily, though not exclusively, directed toward the comparison and pattern recognition domains.
3. See Edmond G. The admissibility of forensic science and medicine evidence under the Uniform Evidence Law. Crim Law J. 2014;38(3):136–158; Edmond G. Legal versus non-legal approaches to forensic science evidence. Int J Evid Proof. 2016;20(1):3–28. Conventionally, legal interest tends to be focused on factors such as formal qualifications, experience, the existence of ‘fields’ and previous admissibility decisions.
4. See Kahneman D, Klein G. Conditions for intuitive expertise: a failure to disagree. Am Psychol. 2009;64(6):515–526. doi: 10.1037/a0016755; Hogarth R. Educating intuition. Chicago, IL: University of Chicago Press; 2001. Cunliffe E. Judging, fast and slow: using decision-making theory to explore judicial fact determination. Int J Evid Proof. 2014;18(2):139–180. doi: 10.1350/ijep.2014.18.2.447.
5. Uniform Evidence Law (UEL), s 79(1). See also Section 3.1 below. We accept that credibility might also be an issue; such as where a practitioner has previously misrepresented evidence or there is some reason for doubting their opinion or abilities. Generally, credibility is a second-order consideration. When evaluating expert opinion evidence, it is usually more important to know whether a technique or process works and how well than to focus on the credibility or demeanour of an individual.
6. More generally, see Edmond G. What lawyers should know about the forensic ‘sciences’. Adelaide Law Rev. 2015;37(1):33–99.
7. Although we believe that Australian admissibility standards are currently too liberal, improving the performance of forensic practitioners and lawyers may circumvent the need to formally revise them.
8. Other interventions have focused primarily on admissibility. See Edmond G. Specialised knowledge, the exclusionary discretions and reliability: reassessing incriminating expert opinion evidence. Uni New South Wales Law J. 2008;31(1):1–55; Edmond G, San Roque M. Before the High Court - Honeysett v The Queen: Forensic science, ‘specialised knowledge’ and the Uniform Evidence Law. Sydney Law Rev. 2014;36(2):323–344; Edmond G. A closer look at Honeysett: enhancing our forensic science and medicine jurisprudence. Flinders Law J. 2016;17(1):in press.
9. Edmond G. Forensic science evidence and the conditions for rational (jury) evaluation. Melbourne University Law Rev. 2015;39(1):77–127.
10. This article is directed primarily toward forensic practitioners employed or engaged by the state. These individuals produce the vast majority of forensic science evidence relied upon in decisions to charge, plea and charge negotiations, and criminal prosecutions.
11. We are referring to the commitment to testing and standardising procedures in regular use. More generally, see Merton RK (edited by Storer NW). The sociology of science: theoretical and empirical investigations. Chicago, IL: University of Chicago Press; 1973; and critical commentary: Mulkay MJ. Norms and ideology in science. Soc Sci Inf. 1976;15(4–5):637–656; Mulkay MJ. Interpretation and the use of rules: the case of norms of science. In: Gieryn T, editor. Science and social structure: a festschrift for Robert K. Merton. New York: New York Academy of Sciences; 1980.
12. See Mnookin JL, Cole SA, Dror IE, Fisher BAJ, Houck MM, Inman K, … Stoney DA. The need for a research culture in the forensic sciences. UCLA Law Rev. 2011;58(3):725–780.
13. National Academy of Sciences. Strengthening the forensic sciences in the United States: a path forward. Washington, DC: National Academies Press; 2009 [‘NAS Report’]. Retrieved from https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf; National Institute of Standards and Technology. Latent print examination and human factors: improving the practice through a systems approach. Washington, DC: US Department of Commerce; 2012 [‘NIST Report’]. Retrieved from http://www.nist.gov/oles/upload/latent.pdf.
14. Understanding the process and its limitations is generally more important than preventing ‘criminals’ from finding out about it. Failure to disclose procedures and especially limitations, threatens the primary goals of the accusatorial trial – to provide a substantially fair and open process that produces an accurate verdict. There may be some circumstances where technical capabilities need to be kept secret but these will be exceptional.
15. This applies regardless of whether these are explicitly required by jurisdictional rules. See Goudge ST. Final report of the inquiry into Paediatric Forensic Pathology Services in Ontario. Toronto, Canada: Queen’s Printer; 2008 [Goudge Report].
16. We note that impartiality has limits (especially as an analytical category to evaluate evidence), but as a normative commitment it is desirable, especially among state-employed forensic scientists. See the discussion by the Supreme Court of Canada in White Burgess Langille v Abbott and Haliburton Co. [2015] SCC 23.
17. Limitations and oversights are not necessarily identified or repaired by trial safeguards. See Edmond G, San Roque M. The cool crucible: forensic science and the frailty of the criminal trial. Curr Issues Criminal Just. 2012;24(1):51–68.
18. Modest. In Merriam Webster Online Dictionary. Retrieved from http://www.merriam-webster.com/dictionary/modest.
19. In Honeysett v The Queen [2014] 253 CLR 122, the High Court of Australia endorsed definitions of ‘knowledge’ from Daubert v Merrell Dow Pharmaceuticals Inc [1993] 509 US 579, 590 and R v Tang [2006] 65 NSWLR 681, 713–714. Specifically, the Court endorsed the Macquarie Dictionary definition of ‘knowledge’, namely ‘acquaintance with facts, truths, or principles, as from study or investigation’ (emphasis in original). More generally, see Brewer S. Scientific expert testimony and intellectual due process. Yale Law J. 1998;107(6):1535–1681, who suggests that the ‘mark of the epistemic is the concern with warranted belief’; and Beecher-Monas E. Evaluating scientific evidence: an interdisciplinary framework for intellectual due process. New York: Cambridge University Press; 2007.
20. Here, the point is not to call something scientific or non-scientific, or technical or experience-based or merely an opinion. Rather, the point is what does available research support in terms of capabilities?
21. NAS Report, 106 n79, quoting Mnookin J. The validity of latent fingerprint identification: confessions of a fingerprinting moderate. Law, Prob Risk; 2008;7(2):127–141. doi: 10.1093/lpr/mgm022. See also Turkheim D. Flawed convictions: ‘Shaken baby syndrome’ and the inertia of injustice. New York: Oxford University Press; 2014.
22. Thompson MB, Tangen JM, McCarthy DJ. Human matching performance of genuine crime scene latent fingerprints. Law Human Behav. 2014;38(1):84–93. doi: 10.1037/lhb0000051.
23. Ulery BT, Hicklin RA, Buscaglia J, Roberts MA, Fienberg SE. Accuracy and reliability of forensic latent fingerprint decisions. Proc Nat Acad Sci USA. 2011;108(19):7733–7738. doi: 10.1073/pnas.1018707108; Tangen JM, Thompson MB, McCarthy DJ. Identifying fingerprint expertise. Psycholog Sci. 2011;22(8):995–997. doi: 10.1177/0,956,797,611,414,729; Thompson MB, Tangen JM. The nature of expertise in fingerprint matching: experts can do a lot with a little. PloS one. 2014;9(12):e114759. doi: 10.1371/journal.pone.0114759.
24. Ulery BT, Hicklin RA, Buscaglia J, Roberts MA. Repeatability and reproducibility of decisions by latent fingerprint examiners. PloS one. 2012;7(3):e32800. doi: 10.1371/journal.pone.0032800; Langenburg G, Champod C, Genessay T. Informing the judgments of fingerprint analysts using quality metric and statistical assessment tools. Forensic Sci Int. 2012;219(1–3):183–198. doi: 10.1016/j.forsciint.2011.12.017. But see Thompson MB, Tangen JM, McCarthy DJ. Expertise in fingerprint identification. J Forensic Sci. 2013;58(6):1519–1530. doi: 10.1111/1556–4029.12203 for a discussion about generalising the results from laboratory-based experiments to the everyday operations of a fingerprint bureau.
25. Ulery BT, Hicklin RA, Buscaglia J, Roberts MA, Fienberg SE. Accuracy and reliability of forensic latent fingerprint decisions. Proc Nat Acad Sci USA. 2011;108(19):7733–7738. doi:10.1073/pnas.1018707108; Ulery BT, Hicklin RA, Roberts MA, Buscaglia J. Measuring what latent fingerprint examiners consider sufficient information for individualization determinations. PloS one. 2014;9(11):e110179. doi: 10.1371/journal.pone.0110179; Ulery BT, Hicklin RA, Roberts MA, Buscaglia J. Changes in latent fingerprint examiners’ markup between analysis and comparison. Forensic Sci Int. 2015;247(1):54–61. doi: 10.1016/j.forsciint.2014.11.021.
26. Kassin SM, Dror IE, Kukucka J. The forensic confirmation bias: problems, perspectives, and proposed solutions. J Appl Res Memory Cognit. 2013;2(1):42–52. doi: 10.1016/j.jarmac.2013.01.001.
27. Thompson MB, Tangen JM, McCarthy DJ. Human matching performance of genuine crime scene latent fingerprints. Law Human Behav. 2014;38(1);84–93. doi: 10.1037/lhb0000051. Generally, benchmarking tests of fingerprint examination, as in other forensic science domains, provide evidence that can be used to estimate the bounds of a particular procedure. See also research on unfamiliar face matching by White D, Phillips PJ, Hahn CA, Hill M, O’Toole AJ. Perceptual expertise in forensic facial image comparison. Proc Roy Soc B: Bio Sci. 2015;82(1814):1–8. doi: 10.1098/rspb.2015.1292.
28. On the identification paradigm, see Saks MJ, Koehler JJ. The Individualization Fallacy in forensic science. Vanderbilt Law Rev. 2008;61(1):199–219; Cole SA. Forensics without uniqueness, conclusions without individualization: The new epistemology of forensic identification. Law Prob Risk. 2009;8(3):233–255. doi: 10.1093/lpr/mgp016; Koehler JJ, Saks MJ. Individualization claims in forensic science: still unwarranted. Brooklyn Law Rev. 2010;75(4):1187–1208.
29. It is important to emphasise that more scientific attention has been directed toward fingerprint evidence than most comparison procedures (e.g., shoe, foot and tyre prints, ballistics and tool marks, handwriting, image, voice and gait comparison). It is far from clear that these other procedures are as robust.
30. There may be a limited place for more speculative approaches in investigations, but these should not form part of charging decisions, plea negotiations and prosecutions. There is a need for caution because the use of unreliable and speculative procedures in investigations may waste resources and mislead investigators; especially if undisclosed.
31. Association of Forensic Science Providers. Standards for the formulation of evaluative forensic science expert opinion. Sci Justice. 2009;49(3):161–164. doi: 10.1016/j.scijus.2009.07.004; Evett I. Evaluation and professionalism. Sci Justice. 2009;49(3):159–160. doi: 10.1016/j.scijus.2009.07.001.
32. Impartiality requires that forensic practitioners discharge their responsibilities to assist the court to reach an accurate conclusion, including by explaining uncertainties and limitations – rather than conceiving of their role as one of assisting police or the prosecution to secure a conviction. See Cunliffe E. Independence, reliability and expert testimony in criminal trials. Australian J Forensic Sci. 2013;45(3):284–295. doi: 10.1080/00450618.2013.784358.
33. In other contexts, forensic practitioners should perform their work, especially analyses, accurately and impartially.
34. In some cases it may be appropriate to restrict the use of procedures until experimental studies confirm their validity and reliability.
35. Most of the same obligations apply to other experts, including defence experts, although as we explain, there are special obligations on experts employed and called by the state. State-employed forensic practitioners should be model expert witnesses.
36. See Daubert v Merrell Dow Pharmaceuticals Inc. [1993] 509 US 579; Kumho Tyre Co v Carmichael [1999] 526 US 137 (1999), and the revised US Federal Rules of Evidence (1975) r 702. See also R v Trochym [2007] 1 SCR 239; R v Abbey [2009] ONCA 624.
37. Law Commission of England and Wales. Expert Evidence in Criminal Proceedings in England and Wales, 34. London: HMSO; 2011; Criminal Procedure Rules (2014) r 33 (England and Wales). See also Ward T. Expert evidence and the law commission: Implementation without legislation? Crim Law Rev. 2013;2013(7): 561–576.
38. Leveson B. Review of the effectiveness of criminal justice. 60–62. London: Judiciary of England and Wales; 2015.
39. See Edmond G, Cole SA, Cunliffe E, Roberts A. Admissibility compared. U Denver Crim Law Rev. 2013;3(1): 31–109.
40. See for example R v Lundy [2014] NZHC 2527; New Zealand Pork Industry Board v Director-General of the Ministry of Agriculture and Forestry [2013] NZCA 65; R v Carter [2005] NZCA 422. The New Zealand Evidence Act 2006 s 26 includes references to both ‘knowledge’ and ‘expert’.
41. South Australia, Western Australia and Queensland are governed by a mixture of parochial evidence acts and the common law.
42. In UEL jurisdictions, s 76.
43. UEL s 79(1).
44. Dasreef Pty Ltd v Hawchar [2011] HCA 21, [32]; Honeysett v The Queen [2014] HCA 29, [23].
45. HG v The Queen [1999] 197 CLR 414, [39]. The knowledge should be independent of the practitioner and any claimed ability. Ideally, there should be some experimental study that can be referred to (and produced if necessary).
46. In Daubert the Court offered a list of criteria that might be used flexibly to assist trial judges with reliability (and validity). The Daubert criteria include: testing; peer review and publication; error rates; whether standards exist and have been applied; and, whether the procedure is generally accepted.
47. Honeysett v The Queen [2014] HCA 29.
48. Honeysett v The Queen, [42].
49. Honeysett v The Queen, [43]. According to the Court, ‘Professor Henneberg’s opinion was not based on his undoubted knowledge of anatomy.’ Rather, the ‘conclusion was based on Professor Henneberg’s subjective impression of what he saw when he looked at the images.’
50. Honeysett v The Queen [2014] HCA 29, [23].
51. Ibid, quoting from Daubert v Merrell Dow Pharmaceuticals Inc. [1993] 509 US 579.
52. The High Court recognised that ‘specialised knowledge’ could be obtained ‘without any formal qualifications … by experience’ but only with regard to ‘matters that are not of a scientific or technical kind’: Ibid.
53. In Tuite v The Queen [2015] VSCA 148, [70], the Victorian Court of Appeal concluded that earlier decisions such as R v Tang [2006] 65 NSWLR 681 and Honeysett meant that it was not possible to read ‘reliability’ into ‘specialised knowledge’ from s 79. This approach is inconsistent with the interpretations of ‘knowledge’ and procedural requirements imposed by superior courts in other jurisdictions such as the United States, Canada, England and Wales. Notwithstanding Tang, Honeysett and Tuite, the High Court has yet to decide the issue. See Edmond G. The admissibility of forensic science and medicine evidence under the Uniform Evidence Law. Crim Law J. 2014;38(3):136–158.
54. UEL s 137 states: ‘In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.’ This is similar, though not identical, to the common law Christie discretion.
55. Tuite v The Queen [2015] VSCA 148, [11], [102], [103]ff. Dangers of mis-use and deference were also raised in HG v The Queen [1999] 197 CLR 414, [44] and Honeysett v The Queen [2014] HCA 29, [45].
56. Tuite v The Queen [2015] VSCA 148 perpetuates the schism between the courts in NSW and Victoria. See Edmond G, Hamer D, Ligertwood A, San Roque M. Christie. Section 137 and forensic science evidence (after Dupas v The Queen and R v XY). Monash U Law Rev. 2014;40(2):389–412. Interestingly, the Family Court of Australia seems to prefer the Victorian approach, see McGregor & McGregor [2012] FamCAFC 69.
57. The NAS Report, 53, concluded that trial safeguards have been ‘utterly ineffective’ in ensuring the reliability of forensic science evidence. HTCE and this article recognise that skilled cross-examination and judicial instructions have the potential to play important roles in a more rational approach to forensic science. See also Sanders J. Utterly ineffective? Do courts have a role to play in improving the quality of forensic expert testimony? Fordham Urban Law J. 2010;38(2):547–570.
58. See for example Makita Pty Ltd v Sprowles [2001] NSWCA 305, [85]; Hillstead v R [2005] WASCA 116; Dasreef Pty Ltd v Hawchar [2011] 243 CLR 588.
59. Allen RJ, Miller JS. The common law theory of experts: deference or education. Northwestern U Law Rev. 1993;87(4):1131–1147; Brewer S. Scientific expert testimony and intellectual due process. Yale Law J. 1998;107(6):1535–1681.
60. Davie v Lord Provost, Magistrates and Counsellors of the City of Edinburgh (1953) SC 34. See also the Goudge Report, at 414–20.
61. Davie, 40. See also Ward T. ‘A new and more rigorous approach’ to expert evidence in England and Wales? Int J Evid Proof. 2015;in press. doi: 10.1177/1365712715591471.
62. General Electric Co. v Joiner 522 US 136, 146 (1997).
63. These might be influenced by case exigencies, client instructions, the strategy adopted, technical abilities, resources and the competence of the cross-examiner and tend to vary dramatically between cases. On principle, we should be looking for solutions (or standards) that are less case-dependant and less susceptible to inconsistency.
64. Other examples include the Federal Court of Australia, Practice Note CM 7: Expert Witnesses in Proceedings in the Federal Court of Australia and the Uniform Civil Procedure Rules 2005 (NSW) Schedule 7: Expert Witness Code of Conduct. Schedule 7 applies in criminal proceedings by virtue of Part 75 Rule 3(j) of the Supreme Court Rules 1970 (NSW). See also The Criminal Procedure Rules (2014) Part 33 (England and Wales).
65. Forensic Evidence Working Group (2014). Practice notes: Expert evidence in criminal trials. Retrieved from https://www.countycourt.vic.gov.au/sites/default/files/forms/Practice%20Note%20-%20Expert%20Evidence%20in%20Criminal%20Trials_FINAL%20%28June%202,014%29_0.pdf
66. See The Australian and New Zealand Forensic Science Society Inc. Code of professional practice for members of the ANZFSS: Version 1. 2014. Retrieved from http://anzfss.org/wp-content/uploads/2012/05/ANZFSS-Code-of-Professional-Practice-Final.pdf
67. Code of professional practice for members of the ANZFSS.
68. Here, ‘client’ should be interpreted broadly, in terms of the various constituencies served by forensic scientists – which include the community and defendants. Regardless of the business models that forensic or police organisations might use, the police and prosecutors are not the forensic practitioner’s clients. It is preferable to conceptualise the court as the ‘client’; even if only a small proportion of results ever make it into criminal proceedings and the court does not pay for the service. There are a range of undesirable orientations and influences introduced by conceptualising investigators and prosecutors as clients, especially if using a service model.
69. We have not included complainants or victims because these are not special ‘clients’ but are, along with defendants, part of the community. Interactions and dispositions may create particular difficulties for some types of practice, such as nurses and physicians working in the domain of sexual assault.
70. While experts are generally immune from civil liability in Australia, this is not the case in other common law jurisdictions, see Jones v Kaney [2011] UKSC 13.
71. Consider the description of expert witness performance in Gilham v The Queen [2012] NSWCCA 131 and the blood and textile evidence in Morling T. Report of the Commissioner: Royal commission of inquiry into the Chamberlain convictions. Canberra, Australia: Government Printer; 1984. More generally, consider the discussion Wynne B. Establishing the rules of law. In Smith R, Wynne B, editors. Expert evidence: Interpreting Science in the law. London, UK: Routledge; 1989, p. 23–55.
72. Consider the certificates and opinions expressed by ‘prosecution’ experts in NSW in R v Tang (2006) 65 NSWLR 681; Honeysett v The Queen [2013] NSWCCA 135 and Morgan v The Queen [2011] 215 A Crim R 33.
73. The contention that proprietary interests should override the interests or ability of criminal justice actors to obtain access to information has recently been criticised by the Chief Justice of England and Wales. See Lord Thomas, Chief Justice of England and Wales. Expert evidence and the future of forensic science in criminal trials. Speech presented at the Criminal Bar Association Kalisher Lecture; 2014, 14 October.
74. Independence may be difficult to accomplish when there are few, or no other, employees.
75. These may be pronounced where the witness’s livelihood depends on the provision of opinions.
76. More generally, see Edmond G. (ad)Ministering justice: expert evidence and the professional responsibilities of prosecutors. U New South Wales Law J. 2013;36(3):921–953.
77. Most forensic practitioners are not able to observe the entire trial.
78. See also Legal Profession Uniform Conduct (Barristers) Rules (2015): ‘Rule 4. These Rules are made in the belief that: (a) barristers owe their paramount duty to the administration of justice’ and the New South Wales Professional Conduct and Practice Rules 2013 (Solicitors’ Rules): ‘3.1 A solicitor's duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.’
79. Boucher v The Queen [1954] 110 CCC 263, 270. See also Berger v United States [1935] 295 US 78, 88 and Whitehorn v The Queen [1983] 152 CLR 657, 663–664.
80. Office of the Director of Public Prosecutions – New South Wales. (2007). Prosecution Guidelines of the Office of the Director of Public Prosecutions for New South Wales. Retrieved from http://www.odpp.nsw.gov.au/docs/default-source/default-document-library/prosecution-guidelines.pdf?sfvrsn=2
81. Legal Profession Uniform Conduct (Barristers) Rules 2015.
82. Obiter in Velevski v The Queen [2002] 187 ALR 233, around not needing to disclose and explain limitations with expert evidence, by Gummow and Callinan JJ, appears inconsistent with contemporary Barristers’ rules and practice directions, as well as admissibility jurisprudence focused on ‘knowledge’.
83. Prosecutors should not treat methodological concerns as trivial and claim that experience or past practice somehow compensate for these deficiencies. In plea bargains, prosecutors and others should not overstate the strength of the evidence against the accused. Similarly, investigators should not do this during formal interviews with suspects, as this may affect the admissibility (or reliability) of any admissions, see UEL s 90.
84. Relatively few of the reports produced by forensic practitioners engaged in non-DNA comparison or pattern recognition are compliant with the terms of practice notes, professional ethical codes or what an impartial expert would disclose.
85. Moreover, it is more likely that limitations (including serious methodological and technical issues) will be seen as trivial or motivated if raised by the defence rather than introduced and explained by the prosecutor.
86. This is analogous to the need for the prosecution to call all material witnesses so they can be cross-examined by the defence. Problems and limitations with forensic science evidence should be raised by the state, so the defence knows about them and can explore them if this is considered appropriate.
87. More is required of prosecutors than other lawyers. They are expected to act in strict conformity with professional duties and legal rules.
88. Daubert v Merrell Dow Pharmaceuticals Inc [1993] 509 US 579 and Tuite v The Queen [2015] VSCA 148 suggest that the trustworthiness or ‘reliability’ of forensic science evidence should be demonstrated by evidence of validity.
89. Even consistency with other evidence and apparent plausibility may not be particularly useful here. See Edmond G, Tangen J, Searston R, Dror IE. Contextual bias and cross-contamination in the forensic sciences: The corrosive implications for investigations, plea bargains, trials and appeals. Law Prob Risk. 2014;14(1):1–25. doi: 10.1093/lpr/mgu018.
90. See Cole SA. Suspect identities: a history of fingerprinting and criminal identification. Cambridge, UK: Harvard University Press, 2001; Saks MJ, Koehler JJ. The individualization fallacy in forensic science evidence. Vanderbilt Law Rev. 2008;61(1):199–219; Cole SA. Forensics without uniqueness, conclusions without individualization: The new epistemology of forensic identification. Law Prob Risk. 2009;8(3):233–255. doi: 10.1093/lpr/mgp016
91. For example, NAS report.
92. Consider engagement by latent fingerprint examiners Glenn Langenburg and Eric Ray on the Double Loop Podcast: Cross-Examination Part 1 and Cross Examination Part 2: https://soundcloud.com/double-loop-podcast/episode-89-cross-examination-article-part-1 and: https://soundcloud.com/double-loop-podcast/episode-90-cross-examination-article-part-2.
93. In fact, Collaborative Testing Services acknowledges that their tests are not indicative of practitioner performance by including the following disclaimer in every report: ‘This report contains the data received from the participants in this test. Since these participants are located in many countries around the world, and it is their option how the samples are to be used (e.g. training exercise, known or blind proficiency testing, research and development of new procedures, etc.), the results compiled in the Summary Report are not intended to be an overview of the quality of work performed in the profession and cannot be interpreted as such. The Summary Comments are included for the benefit of participants to assist with maintaining or enhancing the quality of their results. These comments are not intended to reflect the general state of the art within the profession.’ (http://www.ctsforensics.com/assets/news/3424_Web.pdf. See also Tangen JM, Cole SA, Vokey JR. On the preliminary psychophysics of fingerprint identification. Q J Exp Psychol. 2009;62(5):1023–1040. doi: 10.1080/17,470,210,802,372,987; Thompson MB, Tangen JM, McCarthy DJ. Expertise in fingerprint identification. J Forensic Sci, 2013;58(6):1519–1530. doi: 10.1111/1556–4029.12203.
94. See, for example, UEL ss 55, 56, 79(1), 135, 137.
95. See, for example, Fitzgerald v The Queen [2014] HCA 28.
96. There is a paucity of tests that benchmark examiner performance against the population at large reported in the scientific literature, but those that do exist show significant variability in the accuracy of judgments from one trained examiner to the next. See Ulery BT, Hicklin RA, Buscaglia J, Roberts MA, Fienberg SE. Accuracy and reliability of forensic latent fingerprint decisions. Proc Nat Acad Sci USA. 2011;108(19):7733–7738. doi: 10.1073/pnas.1018707108; White D, Phillips PJ, Hahn CA, Hill M, O’Toole AJ. Perceptual expertise in forensic facial image comparison. Proc Roy Soc B: Bio Sci. 2015;282(1814): 1–8. doi: 10.1098/rspb.2015.1292.
97. Consider, for example, Wilkinson C, Evans R. Are facial image analysis experts any better than the general public at identifying individuals from CCTV images? Sci Just. 2009;49(3):191–196. doi: 10.1016/j.scijus.2008.10.011; Birch I, Raymond L, Christou A, Fernando MA, Harrison N, Paul F. The identification of individuals by observational gait analysis using closed circuit television footage. Sci Just. 2013;53(3):339–342. doi: 10.1016/j.scijus.2013.04.005; Birch I, Vernon W, Burrow G, Walker J. The effect of frame rate on the ability of experienced gait analysts to identify characteristics of gait from closed circuit television footage. Sci Just. 2014;54(2):159–163. doi: 10.1016/j.scijus.2013.10.002.
98. See Honeysett v The Queen [2014] HCA 29. Policy decisions should be informed by a range of insights, including studies on the performance of laypersons with statistics and probabilities. Cf Aytugrul v The Queen [2012] 247 CLR 170.
99. Where publication in scientific periodicals is not possible, studies should be reported, and made available, on institutional websites.
100. For a discussion of the risks and benefits of using ‘insiders’ vs ‘outsiders’ to review expert practices, see Greenhalgh T. How to read a paper: the basics of evidence-based medicine, 5th ed. Chichester, UK: Wiley-Blackwell; 2014, and sources cited therein.
101. Practitioners and technicians should be able to identify and refer to relevant validation studies and be aware of issues with human factors. See, for example, NIST Report, Recommendation 6.3: ‘A testifying expert should be familiar with the literature related to error rates. A testifying expert should be prepared to describe the steps taken in the examination process to reduce the risk of observational and judgmental error. The expert should not state that errors are inherently impossible or that a method inherently has a zero error rate.’
102. See some of the examples in Cole SA. A cautionary tale about cautionary tales about intervention. Organisation. 2009;16(1):121–141. doi: 10.1177/1,350,508,408,098,925.
103. Tangen JM. Identification personified. Aust J Forensic Sci. 2013;45(3):315–322. doi: 10.1080/00450618.2013.782339.
104. On fingerprints, see Donaldson SI, Berger DE, Pezdek K (eds). Applied psychology: new frontiers and rewarding careers. Philadelphia, PA: Psychology Press; 2006; Tangen JM, Thompson MB, McCarthy DJ. Identifying fingerprint expertise. Psychol Sci. 2011;22(8):995–997. doi: 10.1177/0,956,797,611,414,729; Busey TA, Parada FJ. The nature of expertise in fingerprint examiners. Psychon Bull Rev. 2010;17(2):155–160. doi: 10.3758/PBR.17.2.155; Dror IE, Charlton D, Péron AE. Contextual information renders experts vulnerable to making erroneous identifications. Forensic Sci Int. 2006;156(1):74–78. doi: 10.1016/j.forsciint.2005.10.017; Erlikhman G, Ghose T, Garrigan P, Mnookin JL, Dror IE, Charleton D, Kellman P. Fingerprint matching expertise and its determinants. J Vision. 2013;13(9):51–51. doi: 10.1167/13.9.51. On faces, see for example Kemp RI, Towell N, Pike G. When seeing should not be believing: photographs, credit cards and fraud. Appl Cognitive Psych. 1997;11(3):211–222; White D, Kemp RI, Jenkins R, Matheson M, Burton AM. Passport officers’ errors in face matching. PloS one. 2014;9(8):e103510. doi: 10.1371/journal.pone.0103510; Burton AM, Kramer RS, Ritchie KL, Jenkins R. Identity from variation: Representations of faces derived from multiple instances. Cognitive Sci. In press.
105. The word ‘rationally’ is taken from the meaning of relevance in the Uniform Evidence Law, ss 55, 56.
106. Some procedures and forms of reporting have been abandoned altogether. Consider the recent treatment of bullet lead comparison, bite marks, and microscopic hair comparisons, for example: National Research Council. Forensic analysis weighing bullet lead evidence. Washington, DC: National Academies Press; 2004; and Federal Bureau of Investigation, Department of Justice. FBI/DOJ microscopic hair comparison analysis review. n.d. Retrieved from https://www.fbi.gov/about-us/lab/scientific-analysis/fbi-doj-microscopic-hair-comparison-analysis-review.
107. The fact that any error rate will be somewhat artificial, and might not capture the precise conditions of the analysis is not an excuse. Awareness of this issue did not prevent the NAS and other groups insisting that these should be determined and disclosed: NAS Report, 184, 122.
108. Moreover, in many comparison practices, expertise inheres in the analyst rather than these other things, even if they may enhance performance.
109. Faigman DL, Monahan J, Slobogin C. Group to individual (G2i) inference in scientific expert testimony. U Chicago Law Rev. 2014;81(2):417–480.
110. The lack of research might prevent appropriate qualifications being made.
111. More generally, how much better than a layperson should an ‘expert’ typically perform before the various risks and dangers associated with expert opinions are imposed on the trial? This is a policy issue that warrants consideration by appellate courts.
112. Faigman DL, Monahan J, Slobogin C. Group to individual (G2i) inference in scientific expert testimony. U Chicago Law Rev. 2014;81(2):417–480.
113. Edmond G, Thompson MB, Tangen JM. A guide to interpreting forensic testimony: scientific approaches to fingerprint evidence. Law Prob Risk. 2014;13(1):1–25. doi: 10.1093/lpr/mgt011.
114. The ‘Guide’ is obviously dated in the sense that it will require modification and revision.
115. Edmond G, Thompson MB, Tangen JM. A guide to interpreting forensic testimony: scientific approaches to fingerprint evidence. Law Prob Risk. 2014;13(1):1–25. doi: 10.1093/lpr/mgt011. In many cases a 2 × 2 table will provide a useful indication of the proportion of correct results and incorrect results and the incidence of different types of errors in specific processes, thereby providing a useful means of approaching the assessment of a particular result.
116. See NAS Report, 142; The Fingerprint Inquiry, Recommendations 1 and 3; NIST Report, Recommendation 3.7; Campbell A. The Fingerprint Inquiry Report. Edinburgh, Scotland: APS Group; 2011 [‘Fingerprint Inquiry Report’].
117. This applies to latent fingerprints, DNA evidence, ballistics and so on.
118. The Netherlands Forensic Institute is one of the few to openly acknowledge errors in biological trace analysis, with publication of department-wide error rates: Sjerps M, Quak A, Kloosterman A. Error rates in forensic DNA analysis: definition, numbers, impact and communication. Forensic Sci Int Genetics. 2014;12(1):77–85. doi: 10.1016/j.fsigen.2014.04.014. The explicit recognition of both method-based and human-derived errors and their impact on the accuracy of opinions provided across ~450,000 analyses provides empirical data for courts to judge the reliability of DNA results from their laboratory. Although the authors acknowledge that the translation from an academic discussion around general error rates to application for specific cases is problematic, guidance is provided to courts and investigators around errors, and how to request case-specific error analysis.
119. Practitioners might give reasons why they are confident, but in most cases they cannot be certain that a mistake has not been made.
120. For example, Kohn LT, Corrigan JM, Donaldson MS (eds). To err is human: building a safer health system. Washington, DC: National Academies Press; 2000. Retrieved from http://www.nap.edu/read/9728/chapter/1#v.
121. Sometimes error might enable the jury to accommodate inconsistent evidence such as alibis. Consider Vincent FHR. Report: inquiry into the circumstances that led to the conviction of Mr Farah Abdulkadir Jama. Victoria, Australia: Victorian Government Printer; 2010.
122. This is not how most ‘peer review’ operates within forensic science institutions.
123. There is a large literature about peer review and its limitations in relation to biomedical publication. See, for example, the discussion of peer review and publication in civil litigation in Edmond G. Judging the scientific and medical literature: some legal implications of changes to biomedical research and publication. Oxford J Legal Studies. 2008;28(3):523–561. doi: 10.1093/ojls/gqn021.
124. Comprehension of reports and testimony is a separate, though obviously related, issue that requires the input of judges and cognitive scientists. Forensic scientists should not second-guess what courts might like, unless these have been negotiated based on evidence.
125. See, for example, R v Tang [2006] 65 NSWLR 681 and R v T [2010] EWCA Crim 2439.
126. See, for example, Kaufman F. Report of the Kaufman Commission on proceedings involving Guy Paul Morin. Toronto, Canada: Queens Printer; 1998. See also NIST Report, 128 and NRC Report, 185; Goudge Report, 433–35. See also McQuiston-Surrett D, Saks MJ. The testimony of forensic identification science: what expert witnesses say and what factfinders hear. Law Human Behav. 2009;33(5):436–453. doi: 10.1007/s10979–008-9169–1; Martire KA, Kemp RI, Newell BR. The psychology of interpreting expert evaluative opinions. Aust J Forensic Sci. 2013;45(3):305–314. doi: 10.1080/00450618.2013.784361.
127. On ‘opinionisation’, see Cole SA. The ‘opinionization’ of fingerprint evidence. BioSocieties. 2008;3(1):105–113. doi: 10.1017/S1745855208006030.
128. Concerns about human factors featured prominently in the NAS report, the NIST Report, the Fingerprint Inquiry Report and their recommendations.
129. But even these can be difficult as practitioners do not always agree on sufficiency or quality or the number of contributors.
130. See Edmond G, Tangen JM, Searston RA, Dror IE. Contextual bias and cross-contamination in the forensic sciences: the corrosive implications for investigations, plea bargains, trials and appeals. Law Prob Risk. 2014;14(1):1–25. doi: 10.1093/lpr/mgu018.
131. Krane DE, Ford S, Gilder JR, Inman K, Jamieson A, Koppl R, … Thompson WC. Sequential unmasking: a means of minimising observer effects in forensic DNA interpretation. J Forensic Sci. 2008;53(4):1006–1007. doi: 10.1111/j.1556–4029.2008.00787.x. It is important to emphasise that we are not suggesting that everyone needs to be blinded. Rather, it is just the practitioner undertaking the analysis and perhaps any reviewers. Forensic science institutions can manage contextual bias, especially suggestion, through managers (or practitioners) determining what needs to be examined and what needs to be known by others in order to undertake rigorous analysis. Those regulating access to information are known colloquially as ‘puppet masters’.
132. In the Goudge Report the commissioner did not recommend, for example, that forensic pathologists should be blinded, but the report does not appear to fully grasp the seriousness of the problems. Compare, for example, Dror IE, Charlton D, Péron AE. Contextual information renders experts vulnerable to making erroneous identifications. Forensic Sci. Int. 2006;156(1):74–78. doi: 10.1016/j.forsciint.2005.10.017.
133. See Edmond G, Tangen JM, Searston RA, Dror IE. Contextual bias and cross-contamination in the forensic sciences: the corrosive implications for investigations, plea bargains, trials and appeals. Law Prob Risk. 2014;14(1):1–25. doi: 10.1093/lpr/mgu018; Cunliffe E. Murder, medicine & motherhood. Oxford, UK: Hart Publishing; 2011. Double-counting may occur when the same information informs the ‘expert’ interpretation and is also presented to the tribunal of fact as independent evidence for them to consider. The evidence might be counted twice, and often the tribunal will be oblivious to the fact that the information might have influenced (perhaps inappropriately or inadvertently) the ‘expert’ opinion. Examples include a fire investigator knowing about a recent rise in insurance cover when trying to determine the cause of a fire, or a forensic pathologist knowing about enmity between a married couple or the demographics of parents when examining the body of a wife or child, to determine cause of death.
134. The published literature offers many suggestions for institutional processes to reduce the risks of bias. See for example Dror IE, Thompson WC, Meissner CA, Kornfield I, Krane D, Saks MJ, Risinger M. Context management toolbox: a linear sequential unmasking (LSU) approach for minimising contextual bias in forensic decision-making [Letter to the editor]. J Forensic Sci. 2015;60(4).
135. See Found B, Edmond G. Reporting on the comparison and interpretation of pattern evidence. Aust J Forensic Sci. 2012;44(2):193–196. 10.1080/00450618.2011.644260. The NAS, NIST and Goudge reports all list the kinds of information that should be included in an expert report. See the discussion in Edmond G. What lawyers should know about the forensic ‘sciences’. Adelaide Law Rev. 2015;37(1):33–99.
137. Davie v Lord Provost, Magistrates and Counsellors of the City of Edinburgh [1953] SC 34.
138. Reports should also document what the forensic practitioner was told or exposed to and what was requested. This should include information passed during informal exchanges and inadvertently.
139. Institutions should focus on whether expert reports are consistent with expectations and formal legal requirements. Similarly, testimony should occasionally be independently reviewed to determine if what was said in court is consistent with the report and what is known.
140. We note that many standards (e.g. ISO 17,025) operate at a very general level, though they do impose the need for some, historically weak, accreditation. Surprisingly few expert reports are compliant with relevant Australian standards and even Codes of Conduct and Practice Notes.
141. Significantly, those with formal university training, especially advanced degrees in the sciences, are best placed to undertake formal evaluation through validation.
142. See for example White D, Kemp RI, Jenkins R, Matheson M, Burton AM. Passport officers’ errors in face matching. PloS one. 2014;9(8):e103510. doi: 10.1371/journal.pone.0103510.
143. Consider the following extract, taken from the NAS Report, 184: ‘All results for every forensic science method should indicate the uncertainty in the measurements that are made, and studies must be conducted that enable the estimation of those values. … the accuracy of forensic methods resulting in classification or individualization conclusions needs to be evaluated in well-designed and rigorously conducted studies. The level of accuracy of an analysis is likely to be a key determinant of its ultimate probative value.’
144. Recent reforms add ‘sponsors’ and ‘stakeholders’ to management committees, but there appears to be no substantial injection of funds and few references to research in the new organisational arrangements and revised business plans.
145. Australian and New Zealand police agencies have, to their credit, been the only organisations willing to fund the Australian NIFS. Significantly, embedding NIFS within policing organisations has come at the cost of: modest funding; limited independence from police; difficulty advocating reform; and insufficient attention to the need for research and sponsoring research.
146. The US government has established an elaborate structure, under the auspices of NIST, to undertake improvements following the NAS report.
147. See for example Edwards HT. Solving the problems that plague the forensic science community. Jurimetrics. 2009;50(1):5–19.
148. Consider Edmond G. Advice for the courts: a multidisciplinary advisory panel? Int J Evid Proof. 2012;16(3):263–297. Compare the not particularly critical report prepared by the NIJ, just a decade before the NAS Report: National Institute of Justice. Forensic sciences: review of status and needs. Gaithersburg, MA: US Department of Justice; 1999. Retrieved from https://www.ncjrs.gov/pdffiles1/173412.pdf
149. See the informative discussion in Lynch M, Cole SA. Science and technology studies on trial: dilemmas of expertise. Soc Stud Sci. 2005;35(2):269–311. doi: 10.1177/0,306,312,705,048,715; Cole SA. A cautionary tale about cautionary tales about intervention. Organisation 2009;16(1):121–141. doi: 10.1177/1,350,508,408,098,925. We should not forget that fairly weak performances around the early processing, analysis and reporting of DNA profiling evidence led to two National Research Council reports. See Kaye D. DNA and the law of evidence. Cambridge, MA: Harvard University Press; 2011.
150. See United States v Haavard [2000] 117 F. Supp 2d 848. Contrast Kumho Tyre Co v Carmichael [1999] 526 US 137.
151. Consider the treatment of the use of similarities in the case of Splatt, substantially criticised in Shannon CR. Royal commission of inquiry in respect to the case of Edward Charles Splatt. Adelaide, Australia: Government Printer; 1984.
152. The Canadian Supreme Court recognised that previous admission, and longstanding practices, should not insulate procedures from review in R v Trochym [2007] 1 SCR 290, [31]. See also Leveson B. Review of the Effectiveness of Criminal Justice. London: Judiciary of England and Wales; 2015.
153. Ho HL. A philosophy of evidence law: Justice in the search for truth. Oxford, UK: Oxford University Press; 2008.
154. Where forensic practitioners become aware of a mistake, or generate a misleading or mistaken impression in their report or testimony, even if it was not their fault, they have a responsibility to correct it. In relation to testimony they can do the following: (a) ask the judge if they might supplement a response, at the time, in order to clarify the answer (or avoid giving a partial or misleading impression); (b) indicate to the judge, after testifying (though before standing down), that there is an issue that should be raised in the absence of the jury. When the jury has left, the practitioner can raise their concern with the judge and lawyers present; and (c) after leaving the witness box, draw the attention of the solicitor or prosecutor to the issue. (Forensic practitioners might be advised to generate and retain a documentary record of any exchange – e.g. capture the substance of any communication in an email to the solicitor and prosecutor).
155. Consider the treatment of Joy Kuhl in Morling T. Report of the Commissioner: Royal commission of inquiry into the Chamberlain convictions. Canberra, Australia: Government Printer; 1984; Dr Wallace on gunshot residue in Martin B. Inquiry into the Conviction of David Harold Eastman for the Murder of Colin Stanley Winchester, 2014, and Eastman v DPP (ACT) [No 2] [2014] ACTSCFC 2; Associate Professor Cross in Wood v R [2012] NSWCCA 21; Dr. Lawrence in Gilham v R [2012] NSWCCA 131; and Dr Manock in Keogh v R (No 2) [2014] SASCFC 136. Imagine being summoned by a court of appeal or a royal commission, reviewing a (perhaps mistaken) conviction, to be cross-examined on a report you wrote a decade ago. The ability to point to genuine attempts to properly characterise the evidence and its limitations based on what was known would be of tremendous value in such a setting.
156. See for example Tuite v The Queen [2015] VSCA 148.
157. Contrast the English approach in R v Atkins [2009] EWCA Crim 1876, discussed in Edmond G, Kemp RI, Porter G, Hamer D, Burton M, Biber K, San Roque M. Atkins v The Emperor: The “cautious” use of unreliable “expert” opinion. Int J Evid Proof. 2010;14(2):146–166.
158. Edmond G. Forensic science evidence and the conditions for rational (jury) evaluation. Melbourne U Law Rev. 2015;e(1):77–127.
159. It is likely that losses will primarily manifest in what can be said, and a clearer appreciation of the need for more research in many areas of forensic science and medicine routinely admitted and relied upon in criminal proceedings.
160. Concerns and recommendations from public inquiries are not necessarily incorporated into contemporary legal practice and consciousness. Consider Morling T. Report of the Commissioner: Royal commission of inquiry into the Chamberlain convictions. Canberra, Australia: Government Printer; 1984; Shannon CR. Royal commission of inquiry in respect to the case of Edward Charles Splatt. Adelaide, Australia: Government Printer; 1984.
161. Other examples might relate to the cause of an injury or death.
162. Edmond G, Roberts A. Procedural fairness, the criminal trial and forensic science and medicine. Sydney Law Rev. 2011;33(3):359–394.
163. The defence does not usually have access to expert advice. And, preliminary analyses suggest that calling a rebuttal expert is not a particularly effective means of countering misrepresented and exaggerated forensic science evidence at trial.
164. The Australian and New Zealand Forensic Science Society Inc. Code of professional practice for members of the ANZFSS: Version 1; 2014. Retrieved from http://anzfss.org/wp-content/uploads/2012/05/ANZFSS-Code-of-Professional-Practice-Final.pdf. See . Appendix 1.