Forensic Science Service
Written evidence submitted by Alan Field (FSS 95)
I was interested to read in The Times earlier this week that you are involved with a Parliamentary committee looking at the future of forensic and scientific expert evidence within the legal system.
I am not an expert witness myself but, as a management systems consultant and assessor, I have audited a number of built environment and legal consultancies that are involved.
I consider that there are some comparatively straightforward things that could be done to prevent potential miscarriages of justice, remembering that civil as well as criminal litigation can sometimes rest on such evidence.
1) In the USA, under the Federal Rules of Evidence (FRE) the "Daubert Standard" normally applies to all scientific (including clinical and forensic) expert evidence. One of the "Daubert" requirements is that all such evidence must be capable of peer review i.e. if a similar code was adopted here then evidence presented by companies who claimed the methodology used to achieve results was commercially confidential would simply be inadmissible. This seems a simple and obvious change that could be made to English Law. I do not know enough about the American system to say if lawyers find exceptions to these Rules but if we implemented this change in our jurisdiction then it would likely encourage both the prosecutor or plaintiff and defendant to test their own expert evidence before pursuing a case with it.
2) The prosecution or plaintiff should be obliged to present - as part of their evidence in chief - the probability of their expert evidence not being valid or declaring any alternative analysis that would throw doubt on their opinion i.e. it should not be left to the defence solely to do this and, of course, the same obligation could be put on defence expert opinion in civil matters.
3) This could be augmented by changing the system we have under English Law whereby a member of the Bar or a Solicitor-Advocate can usually present a case where expert, scientific opinion can be offered to the Court with possible knowledge that there may be limitations to its conclusions or a credible alternative analysis, on the basis that it is the other side’s responsibility to put those views or, indeed, the expert themselves as they owe their first duty to the Court and not the side paying them i.e. it should become professional misconduct for a lawyer to withhold such an alternative analysis or present evidence that has not been subject to peer review (or an acceptable alternative to the Court).
4) The other obvious change is to follow what happens in some Continental legal systems in that – especially where a jury is involved – there is pre-trial hearing before the Judge alone to determine whether the scientific opinion is valid before it presented in open court. The scientific validity of the evidence – such as the probabilities and sampling techniques involved - could be tested at this point. It would still leave it open at the trial itself for the jury or a Judge alone (in civil matters) to decide upon the facts presented, including the expert opinion. Again, the pre-trail review might encourage either side to drop evidence that is doubtful. There could be an appellant process where either side disagrees with the Judge’s direction could take the matter further before trial. In criminal matters, there could be a safeguard that defence expert evidence could always be presented to the jury. As you know, this wouldn’t be such a departure because in some civil cases the Court already appoints one agreed expert for both sides and both sides are usually required to share information with the agreed expert.
I hope this comments are of interest. If there is any mechanism to so do, I would be most interested to be kept in the loop of the findings of your Committee on this important and very interesting topic.
Alan C. Field MA, LL.B (Hons), PgC, MCQI CQP, MIIRSM, AIEMA, GradIOSH, GIFireE
Chartered Quality Professional and IRCA Registered Lead Auditor
25 March 2011
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