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Criminal

Appeal of expert admissibility often a path to new trial

In a criminal case, appealing the admissibility of an expert witness is a well-travelled route to a new trial, Toronto criminal lawyer John Rosen tells CBC News.

As CBC reports, lawyers for three appellants — parents and their son — convicted of first degree murder in 2012 in the so-called honour killings of the couple's three daughters and the man’s first wife in his polygamous marriage, recently argued that an expert Crown witness who testified at the trial on the subject of honour killings unfairly prejudiced the jury.

The testimony of the University of Toronto adult education professor, connected with the school's Women and Gender Studies Institute, “described what she called a cultural practice in parts of the Middle East and South Asia of killing women and girls whose conduct is seen to ‘dishonour’ their families," says the article.

However, the lawyer for one appellant says it is prejudicial and "flat out prohibited" for an expert witness to suggest certain crimes are carried out by specific types of people in particular ways, the article reports.

The Crown says the expert’s testimony was necessary for the jury to understand the phenomenon of honour killings, which, it argued, was the motive in this case.

Rosen, partner at Rosen Naster LLP, who is not connected to this case and wouldn't comment on it directly, tells CBC News that one of the considerations the appeal court judges will consider is whether the relevance of the expert testimony justifies possibly maligning the accused.

"That's where you get to the issue of, well is this merely a character assassination or is this evidence relevant to something other than the character or propensity of the accused."

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