Reliability Of Expert Evidence Research Articles

Self-Defence and the Reliability of Expert Evidence

Self-Defence and the Reliability of Expert Evidence

The Reliability of Expert Evidence in Canada

This paper analyzes Canada’s common law as it currently stands regarding expert evidence and key inquiries and reports on expert evidence and wrongful convictions done in Canada and on forensic science. The analysis will demonstrate how Canada’s laws and practices have not gone far enough to ensure expert evidence is reliable in order to protect innocent citizens from wrongful conviction. I propose that to truly safeguard against the admission of improper expert evidence in trials Canada must (1) heighten the standard expert evidence must meet to be considered reliable and increase a judge’s role as gatekeeper (2) foster a system of peer-reviewed research, training, accreditation, and accountability in forensic science disciplines in Canada, and (3) ensure that all legal actors (i.e., police, lawyers, and judges) receive continued training on best forensic science practices and their limits and have free access to information and education on forensic science disciplines when needed. Systemic changes in forensic science disciplines in Canada, continued education in forensic sciences for legal actors, and changes in the law of reliability of evidence are necessary to prevent improper expert evidence from continuing to contribute to wrongful convictions. This paper concludes by with a case study evaluating how the proposed systemic changes could have made a difference in a real-world case where expert evidence was flawed.

‘His winnowing fan is in his hand’

ABSTRACTIn order to minimize the risk of wrongful convictions from unreliable expert evidence judges have long considered it necessary to have regard to the reliability of expert evidence when considering its admissibility. In other words, judges have thought it appropriate for them to separate the wheat from the chaff and not simply leave it to juries. However, in IMM v The Queen (2016) 257 CLR 300, four of the seven judges concluded that save for some provisions of the Evidence Act 2008, reliability is a jury issue, not something for the judge to take into account when determining the admissibility of the evidence. This paper discusses four ‘windows of opportunity’ for judges to consider the reliability of expert evidence post IMM v The Queen and recommends the Evidence Act 2008 (Vic) be amended to expressly enable judges to have regard to the reliability of evidence when assessing the danger of unfair prejudice to an accused.

Information & Settlement: Empirical Evidence on Daubert Rulings and Case Outcomes

In 1993, the Supreme Court established a new standard for the admissibility of expert evidence with its decision in Daubert v. Merrell Dow Pharmaceuticals. Although whether Daubert actually has increased the reliability of expert evidence remains an open question, empirical research generally suggests that Daubert has increased the judicial role in expert testimony as the number of challenges has increased. An unexplored topic to date is how Daubert outcomes impact litigation outcomes. This paper aims to fill that gap by examining how Daubert outcomes in federal district court affect the likelihood and timing of settlement. This paper also fits into the larger empirical literature that explores how information flows impact settlement. The sample of 2,127 Daubert motions made in 1,017 private cases from 91 federal district courts, spanning from 2003-2014, and involving 57 different causes of action provides the most comprehensive overview of Daubert practice in federal courts to date. The main empirical results suggest that defendant Daubert wins (plaintiff wins) are associated with a reduction (increase) in the likelihood of settlement. Results from duration analysis suggest that longer pendency time for Daubert motions are associated with lower settlement rates (a 4-7 percent reduction in the rate of settlement for every month that a Daubert motion goes undecided). Decomposition finds that the indirect effect of Daubert pendency (delay due to the reduction in communication between parties while Daubert motions pend before the court) may account for the majority of the measured reduction in the settlement rate. These results suggest that courts might reduce the cost of litigation if they were to adopt “Lone Pine”-type procedures that structure expert discovery and concomitant Daubert motions early, especially when expert testimony is required to prove certain elements of a claim.

Judges’ Capacity to Evaluate Psychological and Psychiatric Expert Testimony

We examined the criteria judges in Finland perceive as important when evaluating the quality of expert testimony, and how judges question psychological and psychiatric expert witnesses to determine the reliability of their testimony. The 87 participating judges rated the importance of the following criteria for the credibility of expert testimony: expert’s work experience, expert’s research activity, falsifiability, error rate, peer-reviewed research, scientific acceptance, and practical acceptance. The judges were thereafter given five vignettes describing expert testimony and asked about the questions they would present to the expert witness about each case. The results show that the judges considered the expert’s work experience to be the most important criterion when judging the reliability of expert evidence. Also, the questions they would ask to assess the reliability of the testimony are consistent with these results. However, as the judges mostly asked questions that could not directly be categorized into any of the seven categories, additional categories were created. These additional categories reveal that many judges ask a more general question concerning the testimony. The present study indicates that the judges are not sufficiently equipped to correctly evaluate expert testimony.

Expert Evidence and Assessments in Child Welfare Cases

Expert evidence from mental health professionals and medical doctors can play a central role in child welfare cases, and this evidence needs to be carefully scrutinized before it is relied upon in making critical decisions about the future of parent-child relationships. In Ontario, concern about the reliability of expert evidence in child abuse and neglect cases was heightened by the 2014 decision of the Court of Appeal in R v. Broomfield, where a mother’s conviction on criminal charges related to giving her infant child cocaine based on testimony by an expert from the Motherisk Drug Testing Lab at the Toronto Hospital for Sick Children. In overturning the conviction, the Court of Appeal noted that “the trial judge made her decision unaware of the genuine controversy among the experts about the use of the testing methods relied upon by the Crown expert at trial to found a conclusion of chronic cocaine ingestion.” In the months following the Court of Appeal decision in Broomfield, the Attorney General of Ontario appointed a former justice of the Court of Appeal, Susan Lang, to undertake a Review to assess the adequacy and reliability of hair analysis evidence used in child protection and criminal proceedings (report to be released Dec. 15, 2015).This paper reviews the principles of the law on the use of expert evidence in child welfare cases in Canada, highlighting the issues related to the judicial role as the “gatekeeper” for the admission of expert evidence in these proceedings. It considers some of the issues related to use of “hard science” evidence, like that from the Motherisk Lab, as well as the use of expert evidence from the social (or “soft”) sciences, which is more common in child protection cases. We argue that in order to ensure a fair trial process, in some cases s.7 of the Canadian Charter of Rights may require a court order that the State-funded indigent parents in criminal or child welfare cases to allow them to retain their own expert to testify.

Guarding the Gate: Some Problems in Expert Evidence in Scots Law

Until recently Scots law had not explicitly developed a test on the reliability of expert evidence as a precondition for its admissibility. The court of appeal in HM Advocate v. Young (2014), building upon earlier decisions in Liehne (2011) and Hainey (2013), has now set out criteria for determining whether expert evidence is based on a science or other organised discipline in order for the evidence to be admissible. This paper considers the approach of Scots law before and after Young and provides a critical examination of the court's approach in that case. It argues that the judgment fails to deal with many relevant issues, such as those canvassed in the US Supreme Court in Daubert v. Merrell Dow Pharmaceuticals Inc (1983) and by the Law Commission for England and Wales in its recent report on expert evidence.

The Reliability of Expert Evidence: Reflections on the Law Commission's Proposals for Reform

The problems associated with the use of expert evidence by the criminal courts have been the subject of ongoing controversy. The Law Commission of England and Wales has recently added its voice to the debate with the publication of a Consultation Paper on the admissibility of expert evidence. This article examines the current law governing the reliability of expert evidence. It analyses the Law Commission's recommendation for the creation of a new statutory rule which would require the trial judge to assess evidentiary reliability as a matter of admissibility. The authors chart the emergence of the US Daubert test, on which the recommendation is based, and consider the lessons to be learned from American experience. While welcoming the recommendation in principle, the authors argue that the crafting and implementation of the proposed admissibility requirement would present formidable challenges.

Judicial Decision Making About Expert Testimony in the Aftermath of Daubert and Kumho

ABSTRACT The Supreme Court's decision in Daubert clarified the standards for the admissibility of expert evidence. Judges were called upon to evaluate the reliability of expert evidence, particularly the reliability of scientific evidence. The Court's decision in Kumho extended the reliability evaluation to nonscientific evidence. In the aftermath of these decisions, it was unclear how courts would evaluate expert reliability and whether these decisions would reduce the number of experts admitted to testify. This research investigated the effects of these decisions on expert testimony admissibility by coding appellate court opinions. Analyses revealed that there was little change in the rates of admission of expert testimony in appellate courts. Consistent with Daubert, the Federal Rules of Evidence were the most influential in judges' decision making about expert testimony. Appellate courts appear to be evaluating the reliability of expert testimony as part of their admission decisions under the Rules, but they are not generally doing so by applying the Daubert factors. A summary of the results are presented, with some brief implications for practice.

Scripting Expertise: The History of Handwriting Identification Evidence and the Judicial Construction of Reliability

Expert evidence in handwriting identification - the claim to be able to identify an author from an examination of written documents - has, after a century of use, once again become highly controversial. As critics attack the so-called expertise as insufficiently proven and perhaps nonexistent, numerous judges have begun to rein in this form of expert testimony, and several have recently decided to exclude it altogether. This paper takes the current controversy over the admissibility of handwriting identification evidence as an opportunity to examine how handwriting identification evidence first became established as a legitimate and credible form of proof. Handwriting identification is an unusual form of expert evidence because it was the first kind of expertise that was primarily forensic, invented specifically for use in the legal arena. This paper is the first article-length examination of the history of this form of expertise, and offers a detailed examination of how handwriting experts convinced judges that their new form of knowledge was legitimate and worth permitting as legal evidence. It investigates the doctrinal and institutional context surrounding handwriting identification evidence, and examines both how expert evidence in document examination came to be admissible and how it came to be understood as persuasive. In addition, this historical study has two more general purposes. First, it seeks to shed new light on a dominant issue in the expert evidence literature, the tension between whether fact finders should defer to experts or be educated by them. Second, it challenges a bedrock assumption of most commentators on expert evidence: that reliability is exogenous to law, or, more specifically, that when judges make determinations about the validity and reliability of expert evidence, they are ratifying something that either exists or does not exist out in the world. This analysis suggests instead that, at least in some circumstances, judicial determinations can play a significant role in constructing broader cultural perceptions of reliability. At least in the case of handwriting identification evidence, judges did not simply import reliable evidence; rather, they helped to create it. Finally, this paper uses this history of handwriting evidence and the contemporary challenges to handwriting to offer some speculative musings on some of the problems implicit in Daubert's approach to expert evidence.

Scripting Expertise: The History of Handwriting Identification Evidence and the Judicial Construction of Reliability

Expert evidence in handwriting identification - the claim to be able to identify an author from an examination of written documents - has, after a century of use, once again become highly controversial. As critics attack the so-called expertise as insufficiently proven and perhaps nonexistent, numerous judges have begun to rein in this form of expert testimony, and several have recently decided to exclude it altogether. This paper takes the current controversy over the admissibility of handwriting identification evidence as an opportunity to examine how handwriting identification evidence first became established as a legitimate and credible form of proof. Handwriting identification is an unusual form of expert evidence because it was the first kind of expertise that was primarily forensic, invented specifically for use in the legal arena. This paper is the first article-length examination of the history of this form of expertise, and offers a detailed examination of how handwriting experts convinced judges that their new form of knowledge was legitimate and worth permitting as legal evidence. It investigates the doctrinal and institutional context surrounding handwriting identification evidence, and examines both how expert evidence in document examination came to be admissible and how it came to be understood as persuasive. In addition, this historical study has two more general purposes. First, it seeks to shed new light on a dominant issue in the expert evidence literature, the tension between whether fact finders should defer to experts or be educated by them. Second, it challenges a bedrock assumption of most commentators on expert evidence: that reliability is exogenous to law, or, more specifically, that when judges make determinations about the validity and reliability of expert evidence, they are ratifying something that either exists or does not exist out in the world. This analysis suggests instead that, at least in some circumstances, judicial determinations can play a significant role in constructing broader cultural perceptions of reliability. At least in the case of handwriting identification evidence, judges did not simply import reliable evidence; rather, they helped to create it. Finally, this paper uses this history of handwriting evidence and the contemporary challenges to handwriting to offer some speculative musings on some of the problems implicit in Daubert's approach to expert evidence.