A little ignorance is a dangerous thing: engaging with exogenous knowledge not adduced by the parties

ABSTRACT

Using a recent trial and appeal in Canada as an example, this essay reviews our conventional reticence to allowing judges to draw the attention of counsel to issues that might influence the assessment of forensic science evidence in criminal proceedings. We question the institutional commitment to judicial non-intervention and suggest that on many occasions judicial passivity or quiescence (rather than impartiality) threatens the fundamental goals of fairness and factual rectitude. The essay explores the scope and rationale for judicial engagement with exogenous knowledge within the confines of adversarialism.

KEYWORDS:

• Expert evidence
• judicial notice
• judicial research
• fingerprint
• impartiality
• science

Notes

1 Hamer and Edmond (2016).

2 Hamer and Edmond (2016).

3 Under s 144 of the Evidence Act 1995 (NSW), and other uniform evidence law (UEL) jurisdictions, judges may take account of ‘knowledge that is not reasonably open to question’. Sanders (2009), pp 80–81 explains that the dominant epistemological approach to determining whether a claim to ‘knowledge’ is sound involves attention to the interplay of belief, truth and justification. All three criteria must be satisfied for information to constitute ‘knowledge’. In Norrie, Beazley ACJ suggested that the UEL approach ‘may not be as stringent as the common law test if … facts judicially noticed at common law must be “indisputable”’, but the line between them appears to be fine: Norrie v NSW Registrar of Births, Deaths and Marriages (2013) NSWCA 145, para 104, citing Heydon J’s view of the common law from Thomas v Mowbray 233 CLR 307, para 619. The standard in Canadian decisions is ‘notorious or generally beyond debate’. See also R v Find (2001) 1 SCR 863; R v Spence (2005) 3 SCR 458.

4 Notice usually applies to facts, rather than opinions.

5 Many mainstream scientific, medical and technical claims are not certain or beyond controversy. Links between tobacco and some types of cancer, human activity and climate change, and even the reality of climate change itself, might not meet the rather stringent common law and statutory requirements. Of interest, many of the doubts and disputes in these areas were stimulated by corporate interests. See Oresme and Conway (2011) and Proctor (2012). 

6 Whether for reasons that are strategic, due to ignorance, resources, beliefs about the capabilities of the trier of fact, or whatever.

7 It may be that this is a more serious issue where there is no jury. On the ability of judges to disregard information, see Guthrie et al (2001).

8 Duff et al (2004). See also Jackson and Summers (2012).

9 See Freckelton et al (2016).

10 Compare McQuiston-Surrett and Saks (2009) and Martire et al (2013).

11 Interestingly, notwithstanding its inauguration of a reliability standard in US federal courts, Daubert v Merrell Dow Pharmaceuticals Inc. 113 S Ct 2786, 2798 (1993) represents something a high point in this regard: ‘Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.’

12 Law Commission of England and Wales (2011), paras 1.20, 1.24: ‘Cross-examination, the adduction of contrary expert evidence and judicial guidance at the end of the trial are currently assumed to provide sufficient safeguards in relation to expert evidence … However, … it is doubtful whether these are valid assumptions’; National Research Council (2009), pp 85, 12, 53, 96, 109, 110. See also Garrett (2011) and Leveson (2015).

13 Although based on the assessment of practices in foreign jurisdictions, these findings bring into question complacent beliefs about the special abilities of lawyers and the value of conventional adversarial tools such as cross-examination and judicial warnings in Australia.

14 See Edmond et al (2013). 

15 Edmond (2015).

16 We note that most adversarial jurisdictions maintain scope, based on statute or the inherent jurisdiction of the court, for the trial judge to call an expert witness (or adviser) – so-called court-appointed experts (and special masters). If the trial judge has a power to call expert evidence, merely adverting to potential issues with expert evidence would appear to be less disruptive.

17 This proposal builds on the fact that judges, particularly those who read widely or attend judicial education seminars, may have some sense of fundamental problems with specific types of expert opinions, awareness of broader problems across the forensic sciences, or even basic familiarity with scientific research methods. Consider, for example, the discussion in Tuite v The Queen (2015) VSCA 148 and references in Dasreef Pty Ltd v Hawchar (2011) HCA 21, para 59, per Heydon J.

18 Decisions such as R v Tang (2006) 65 NSWLR 681 and R v XY (2013) 84 NSWLR 363 have effectively prevented the trial judges of NSW from considering the probative value or reliability of expert opinion evidence as part of their admissibility practice; or in their formal rationalisations, at least. This applies to ad hoc expert opinions as well as opinions from long established disciplines. In Dasreef Pty Ltd v Hawchar (2011) HCA 21, para 37, the High Court suggested that opinion evidence from well-established disciplines might not require sustained scrutiny. In Honeysett v The Queen (2014) 253 CLR 122, para 43 the High Court did not direct attention to the question of validity and reliability – whether the expert can do what she claims, how well, in what conditions, and how we can tell. As with validity and reliability, demonstrable ability is not an admissibility criterion. Practice is not dramatically different in Queensland. See R v Sica (2013) QCA 247 and R v Knight (2010) QCA 372, though compare R v Carroll (2001) QCA 394, paras 6–8.

19 R v Bornyk 2013 BCSC 1927.

20 R v Bornyk trial in the BC Supreme Court, Funt J presiding. Vancouver registry number CA041377. Trial transcript 10 April 2013, p 2 per Pam Bhatti on behalf of the Crown.

21 The possibility that Bornyk had innocent contact with the object was excluded, at R v Bornyk 2013 BCSC 1927, paras 6–9. The evidence showed that the latent fingerprint was matched by a ‘cold hit’ to the Canadian AFIS database almost a year after the crime was committed. Bornyk’s fingerprints were in the AFIS system throughout, and no clear explanation was given for why the alleged match was only identified months later. R v Bornyk 2013 1927, paras 14–16.

22 R v Bornyk trial transcript 11 April 2013, note 20, per Bradley Joseph Wolbeck, pp 98–100. This print was on a box that police found underneath other similarly wrapped boxes that did not yield fingerprints.

23 R v Bornyk 2013 BCSC 1927, paras 9–10. Whether this print was ‘usable’ begs the question: was there enough information to support ‘analysis’ and ‘comparison’ – see Section 3.1.

24 R v Bornyk 2013 BCSC 1927, para 11.

25 Haber and Haber (2008).

26 Verbatim from R v Bornyk 2013 BCSC 1927, para 17.

27 R v Bornyk 2013 BCSC 1927, para 18.

28 R v Bornyk 2013 BCSC 1927, para 17. The contention that the ‘conclusion of individualization’ is validated is egregious. It does not follow that because a partial latent appears to match a known print that is was produced by the same person. Furthermore, it does not follow that where two fingerprint examiners agree (especially where the reviewer, responsible for verification, knew the initial result) that such agreement validates the process or the individual conclusion. See, for example, National Research Council (2009) and Cole (2009a).

29 Bornyk, trial transcript, n 20 Corporal Bradley Joseph Wolbeck, evidence-in-chief, 11 April 2013, p 115.

30 Bornyk, trial transcript, n 20, per Wolbeck on voir dire, 11 April 2013, pp 93–94. See also R v Bornyk 2013 BCSC 1927, para 23.

31 R v Bornyk 2013 BCSC 1927, paras 15–16.

32 There was little engagement with the curious fact that only one incriminating fingerprint, partial and distorted, was recovered from the crime scene.

33 R v Bornyk 2013 BCSC 1927, para 32.

34 R v Bornyk 2013 BCSC 1927, para 32.

35 Campbell (2011).

36 National Research Council (2009).

37 Expert Working Group on Human Factors in Latent Print Analysis (2012).

38 Cole and Roberts (2012). By way of disclosure, Edmond and Cunliffe have co-authored articles with Simon Cole and Andrew Roberts and Hamer has co-authored articles with Roberts.

39 Moreover, several findings are, like the extracts reproduced below, taken directly from the published reasons of Funt J. Significantly, most latent fingerprint evidence in the United States is developed using the same approach – ACE-V – as that employed by the RCMP.

40 R v Bornyk 2013 BCSC 1927, para 36 (internal citations deleted).

41 The lack of pre-determined standards makes the analysis, comparison and evaluation subjective decisions; where latent fingerprint examiners might disagree. See National Research Council (2009), extracted above; Expert Working Group on Human Factors in Latent Print Analysis (2012), Recommendation 3.4, 3.9 and Campbell (2011), Recommendations 2 and 37–40.

42 R v Bornyk 2013 BCSC 1927, para 34. They are: ‘Heidi Eldrige: “Meeting the Fingerprint Admissibility Challenge in a Post-NAS Environment”, Journal of Forensic Identification, 61(5), 2011 at 430; Glenn Langenburg: “A Performance Study of the ACE-V Process: A Pilot Study to Measure the Accuracy, Precision, Reproducibility, Repeatability, and Biasability of Conclusions Resulting from the ACE-V Process”, Journal of Forensic Identification, 59(2), 2009 at 219; Michelle Reznicek, Robin M. Ruth and Dawn M. Schilens: “ACE-V and the Scientific Method”, Journal of Forensic Identification, 60(1), 2010 at 87’.

43 R v Bornyk 2013 BCSC 1927, para 35. One of the articles, stated that ‘[m]ost of the well-known [fingerprint] errors have occurred in cases involving a single, distorted impression’.

44 R v Bornyk 2013 BCSC 1927, para 32.

45 R v Bornyk 2013 BCSC 1927, para 39ff.

46 R v Bornyk 2013 BCSC 1927, para 23.

47 R v Bornyk 2013 BCSC 1927, paras 41–42.

48 R v Bornyk 2013 BCSC 1927, para 45.

49 R v Bornyk 2013 BCSC 1927, para 16.

50 R v Bornyk 2013 BCSC 1927, para 61.

51 Though, see Cole and Edmond (2015).

52 Though, under prevailing judicial notice doctrines, they could not be characterised as incontrovertible or indisputable.

53 The association of trial lawyers attempted to intervene, on the basis of the limited funding of legal aid: see R v Bornyk 2014 BCCA 450. The application was unsuccessful, in part because the Court considered the trial lawyers were not in a position to enhance its knowledge. The Court framed the relevant question as being whether the trial judge exceeded his powers and raised an apprehension of bias when he asked trial counsel to address the materials he had identified. Through this frame, the materiality and reliability of those materials, as well as the relative resources of the parties, were cast as largely irrelevant.

54 R v Bornyk 2015 BCCA 28, para 6.

55 R v Bornyk 2015 BCCA 28, para 8.

56 R v Bornyk 2015 BCCA 28, para 9.

57 R v Bornyk 2015 BCCA 28, para 10.

58 R v Bornyk 2015 BCCA 28, para 11.

59 R v Bornyk 2015 BCCA 28, para 15.

60 R v Bornyk 2015 BCCA 28, para 3.

61 R v Bornyk 2015 BCCA 28, paras 3, 16.

62 The High Court of Australia similarly characterised published papers that had been relied upon by McClellan CJ in his dissenting judgment in Aytugrul v The Queen (2010) 205 A Crim R 157 at 174–177, paras 89–102 generically as ‘materials’ in Aytugrul v The Queen (2012) HCA 15, para 66–74.

63 R v Bornyk 2015 BCCA 28, para 18.

64 R v Bornyk 2015 BCCA 28, para 18. This conclusion is arguably inconsistent with other Canadian case law suggesting that the trier of fact may review materials relied upon by an expert in order to decide whether to accept the expert’s opinion. In R v Nikolovski (1996) 3 SCR 1197, a majority of the Supreme Court of Canada held that a trial judge could compare video footage with the accused in order to decide whether the accused is depicted on that footage, without the need for expert testimony. In R v Abbey 2009 ONCA 624, para 71, Doherty JA described the role of an expert witness vis-à-vis the trier of fact as follows:

Experts take information accumulated from their own work and experience, combine it with evidence offered by other witnesses, and present an opinion as to a factual inference that should be drawn from that material. The trier of fact must then decide whether to accept or reject the expert's opinion as to the appropriate factual inference (italics added).

Recent studies of the performance of latent fingerprint examiners relative to laypersons problematise these (inconsistent) traditional doctrines. Tangen, Thompson and McCarthy (2011) found Australian latent fingerprint examiners to be ‘exceedingly accurate (and more conservative) compared with novices’ but they also found that ‘they do make errors’.

65 Though, there is no guarantee that a future trial judge will appreciate the depth of the issues or be particularly sympathetic to defence challenges to a type of forensic science evidence that has been routinely admitted for decades. Legal convention is, however, no substitute for scientific research, particularly validity and reliability studies.

66 For a discussion of the demands of independence, see Cunliffe (2013), pp 285–286 and Edmond et al (2016).

67 Boucher v The Queen (1954) 110 CCC 263, p 270: ‘it should be done firmly and pressed to its legitimate strength but it must also be done fairly’.

68 Bornyk, trial transcript, n 20, Corporal Bradley Joseph Wolbeck, evidence-in-chief, 11 April 2013 page 94; see also submissions of Crown counsel, trial transcript, 5 September 2013 at 218, 221.

69 National Research Council (2009), p 143. President's Council of Advisors on Science and Technology (2016), 46, 87–103.

70 R v Bornyk 2013 BCSC 1927, paras 23, 40ff.

71 On the importance of critical feedback, see Daniel Kahneman (2011), pp 241–242; Ericsson et al (2007) and Hattie and Timperley (2007).

72 In this context, bias is used in accordance with the definition offered in psychology and not in the legal sense. For a longer discussion of this concept, see Cunliffe (2014), p 144. Compare White Burgess Langille v Abbott and Haliburton Co. (2015) SCC 23.

73 See Found (2015). Fingerprint examiners do not, for example, need to know about the criminal record of the person whose prints they are asked to compare. Such gratuitous information might actually influence the decision as to whether two prints match in ways that may produce errors. Similarly, knowing the initial result might erode the value and independence of ‘verification’. See Dror et al (2006). Influences on cognition have been demonstrated to be subtle and can operate without the analyst knowing. Unfortunately, in most cases, experience or hard thinking do not enable an analyst to overcome their potentially pernicious effects and they are not easy to explore in cross-examination. See Edmond et al (2014a).

74 Expert Working Group on Human Factors in Latent Print Analysis (2012), pp 40, 10. Both the National Research Council and the SFI reports also expressed concern about bias and human factors in the forensic sciences.

75 National Research Council (2009), pp 9, 43, 87, 111.

76 National Research Council (2009), p 24. The US NIST is currently engaged in setting standards through a range of advisory groups: namely, the Organization of Scientific Area Committees.

77 Campbell (2011), Recommendation 6. See also Expert Working Group on Human Factors in Latent Print Analysis (2012), Recommendation 3.3.

78 R v Bornyk 2015 BCCA 28, para 11.

79 Expert Working Group on Human Factors in Latent Print Analysis (2012), Recommendation 3.7. See also National Research Council (2009), pp 142, 184: quoting Mnookin (2008) and Campbell (2011), Recommendation 3. More generally, see Simon Cole (2001).

80 Campbell (2011) Recommendation 3.

81 Bornyk, trial transcript, n 20, Corporal Bradley Joseph Wolbeck, cross-examination, 11 April 2013, p 143.

82 Bornyk, trial transcript, n 20, Corporal Bradley Joseph Wolbeck, evidence-in-chief, 11 April 2013, p 114.

83 See Cole (2014).

84 R v Bornyk 2013 BCSC 1927, para 51.

85 Cole (2005).

86 For a useful review of some of the most recent scientific research on latent fingerprint evidence, see Dror (2016) and the standards being promulgated by NIST committees, namely the National Commission on Forensic Science (2015).

87 Only rarely does the record provide appellate courts with appropriate materials and resources for developing informed guidance for legal practitioners and lower courts.

88 Consider Weinstein’s (1994), p 562, contention that ‘Risk for risk … a thinking, informed judge is far less dangerous than one pickled in his own, ever-so-ethical views’.

89 R v Bornyk 2015 BCCA 28, para 11.

90 If a trial judge, as in Bornyk, is aware of authoritative reports raising significant issues with prosecution evidence, judicial independence and impartiality arguably requires the trial judge to raise it with the parties. To fail to advert to this material – to deliberately not disclose these issues – would be to unfairly favour the prosecution.

91 It is inconceivable that asking for a response to critical materials created any unfairness to the accused in this case.

92 These should be disclosed in expert reports (or certificates), especially where the reports are produced by the state and relate to techniques – such as latent fingerprinting – in routine use. On the content of expert reports, see Expert Working Group on Human Factors in Latent Print Analysis (2012), Recommendation 5.2.

93 Edmond (2013).

94 In 2014, the Manitoba Court of Queen’s Bench declined an application from defence counsel to order that a forensic pathologist retained by the defence be permitted to attend the autopsies in several criminally suspicious deaths. See McIntyre (2014) ‘Autopsy Observer Denied in Giesbrecht Investigation’, Winnipeg Free Press, 13 November 2014.

95 Ulery et al (2011). See also Tangen et al (2011).

96 Edmond et al (2014b).

97 Though, it may be that where there are several prints (of ‘sufficient’ quality) identification becomes less problematic. See Expert Working Group on Human Factors in Latent Print Analysis (2012), Recommendation 3.8.

98 See R v DD (2000) 2 SCR 275; R v J-LJ (2000) 2 SCR 600; R v Trochym (2007) 1 SCR 239; Re Truscott 2007 ONCA 575; LeSage (2007); Kaufman (1998); Goudge (2008).

99 Consider Giannelli (2004).

100 The parties could have declined, although it is uncertain how Funt J would have responded.

101 See, for example, McGregor & McGregor (2012) 47 Fam LR 498; Aytugrul v The Queen (2010) 205 A Crim R 157 at pp 176–177 per McClellan CJ at CL. See generally Rathus (2012). See also Section 6 and Hamer and Edmond (2016).

102 On its own, the value of the Cole and Roberts (2012) article referenced in Bornyk might have been difficult to assess – like the individual materials cited by McClellan CJ at CL in Aytugrul.

103 Goudge (2008).

104 This is not to say that we should disregard the work of individuals, but we should attend to mainstream scientific advice where it is available.

105 R v Bornyk 2015 BCCA 28, para 12, citing Rex v Anderson (1914) 22 CCC 455, pp 459–460. Approved in R v Marquard (1993) 4 SCR 223, p 251.

106 See, for example, the organisation of medical research by the Cochrane Collaboration: http://www.cochrane.org .

107 Mnookin et al (2011).

108 Harris (2012).

109 That is, epistemic problems susceptible to resolution through scientific research.

110 See, for example, JP v Director of Public Prosecutions (NSW) (2015) NSWSC 1669.

111 Moreover, some US courts have prevented scientists and non-scientists from testifying about methodological issues associated with latent fingerprint evidence. See Cole (2009b) and the NSW case R v Madigan (2005) NSWCCA 170.

112 See Faigman et al (2014).

113 The High Court’s treatment of the opinions of an anatomist in Honeysett v The Queen (2014) 253 CLR 122, exemplify this narrow focus.

114 This may make factual disputes appear to be adjudicative when validity and reliability may have broader implications and be better conceived as legislative facts or questions of law and fact. See Davis (1955).

115 In this context, consider Cunliffe and Edmond (2014).

116 On images, consider R v Tang (2006) 65 NSWLR 681; Murdoch v The Queen (2007) 167 A Crim R 329; R v Dastigir (2013) SASCFC 109; Morgan v The Queen (2011) NSWCCA 257 and Honeysett v The Queen (2014) 253 CLR 122. On voices, see R v Leung and Wong (1999) NSWCCA 287; R v Camilleri (2001) 127 A Crim R 290; Regina v Riscuta and Niga (2003) NSWCCA 6; R v El-Kheir (2004) NSWCCA 461; Korgbara v The Queen (2007) 170 A Crim R 568; Bulejcik v The Queen (1996) 185 CLR 375 and Kheir v The Queen [2014] VSCA 200.

117 See McClellan (2015) and, more generally, Posner (2008), pp 118–119.

118 See Edmond (2012). See also R v Harris, Rock, Cherry and Faulder (2005) EWCA Crim 1980.

119 How the trial judge comes to have concerns is not particularly important; though it may be desirable to formally discourage research into non-legal subjects on issues relevant to the instant case.

120 For, uncertain, weak and questionable techniques are routinely presented, and apparently accepted, without appropriate qualification in expert reports or legal testing in proceedings.

121 See Section 6, below, and Hamer and Edmond (2016).

122 Unwittingly, the BC Court of Appeal’s defence of orthodoxy may exert an undesirable impact on the way trial judges engage with non-legal knowledge and explain their decisions in public reasons. In relation to Bornyk, both possibilities would seem to be less desirable than a trial judge expressing concerns, inviting submissions, and making the actual reasons for the eventual decision transparent.

123 We say nothing about whether these conditions actually produce good decisions, but they represent the minimum requirements for our system to operate.

124 See Geertz (1973), p 3.

125 Particularly in a time of increasing austerity in the funding allocated to legal aid. See the discussion of resourcing in Goudge (2008).

126 Would an impartial fingerprint examiner omit reference to the NAS, NIST and SFI reports?

127 Problems are unlikely to be cured by directions and warnings, especially where the directions and warnings are not informed by mainstream scientific research.

128 No fingerprint examiner in an advanced social democracy is oblivious to the NAS and NIST reports, the Scottish Fingerprint Inquiry or challenges to fingerprint evidence in the USA. These reports and developments feature prominently in conference presentations, professional publications and training materials.

129 See the references in 98.

130 R v Bornyk 2015 BCCA 28, para 11.

131 Referring to mainstream scientific knowledge does not constitute bias; even if the knowledge favours one particular party. The evidence falls where it falls.

132 Aytugrul v The Queen (2012) 247 CLR 170; JP v Director of Public Prosecutions (NSW) (2015) NSWSC 1669.

133 A single fingerprint was used to convict in JP v Director of Public Prosecutions (NSW) (2015) NSWSC 1669.

134 See, for example, Uniform Civil Procedure Rules 2005 (NSW) Schedule 7: Expert Witness Code of Conduct.

135 The challenge would have been better directed to the form of the opinion (i.e. the expression – the positive identification) rather than the admissibility of fingerprint evidence.

136 Like Wolbeck, Sergeant Warboys had undertaken no formal scientific training and possessed no scientific qualifications.

137 Allowing Wolbeck to respond might have afforded a veneer of fairness though without producing much of evidentiary value.

138 Aytugrul v The Queen (2012) 247 CLR 170.

139 This assumes that the defence would be able to call witnesses, perhaps some of the authors, to opine on the issues. This merely reinforces the difficulty of accessing authoritative, even uncontroversial, materials that might not satisfy the very onerous notice provisions.

140 Aytugrul v The Queen (2012) 247 CLR 170, para 74 per Heydon J; quoting from United States v Flores-Rodriguez (1956) USCA2 348; 237 F 2d 405, p 412 (2nd Cir 1956).

141 See Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, para 169, and the discussion of facts in Burns (2012).

142 See Gigerenzer (2015).

143 We note that the various materials cited by the Court of Appeal in Tuite v The Queen (2015) VSCA 148 appear to have been identified through the judicial education seminars attended by member of the Court as well as some independent research. In the wake of IMM v The Queen (2016) HCA 14, it is unclear whether trial judges are entitled to focus on the validity and reliability of expert evidence when considering probative value in ss 135 and 137.

144 See McClellan (2015).