In Australia the jury decides:the reliability and validity of expert evidence: a perspective from forensic pathology

Abstract

ABSTRACTThe Innocence Project has enabled, amongst many other things, quantification of contributors to wrongful convictions in the United States. There, individual cases of wrongful conviction have multiple causes, including problems with forensic expert evidence. The Criminal Cases Review Commission in England and Wales has found that amongst unsafe convictions there, forensic expert evidence has been a feature. Apply the English experience with unsafe convictions to Australia, and there would be many more cases than we know of. The Victorian Supreme and County Court Practice Note on Expert Evidence (2014) has reduced the risk that providers of expert evidence could contribute to wrongful convictions, but more needs to be done. The medical sector generally has a huge research capability and capacity. In comparison the forensic pathology sector is tiny and is characterized more by its focus on managing workloads. Conclusions about the cause of death are not testable, and other opinions provided by forensic pathologists are derived from medical sciences, and not from specific evidence-based research. This does not mean that forensic pathology evidence is inherently unreliable, but it does mean that more work is required to better establish that reliability.