Defence needs equal access to forensic process: Dale
By AdvocateDaily.com Staff
Dale, principal of Dale Law Professional Corporation, says that the risk of “confirmation bias” is high because biologists at the national forensic centre are assigned to process exhibits submitted by police.
“Biologists often appear to be taking their direction on what should be tested and in what priority sequence from the police/Crown. Confirmation bias is a risk when there is a tight relationship between the two. We should no longer tolerate a police monopoly on the CFS. It’s time for change," she writes in the online legal publication.
“Confirmation bias is the same species as tunnel vision. It occurs when someone tailors their investigation to find and collect evidence that supports their theory. This leads to the exclusion of evidence that may be relevant if it does not support their theory and reporting in a manner that favours their theory,” she says.
In The Lawyer’s Daily opinion piece, Dale says that expert evidence is often the determining factor for a judge or jury and that the justice system should be mindful of the Goudge Inquiry into Pediatric Forensic Pathology in Ontario — “the mistakes, the bias contributing to those mistakes and the dire consequences.”
In 2008, Justice Stephen T. Goudge released a report following a series of wrongful convictions in child deaths, detailing the woeful state of the Ontario forensic pathology system. In the aftermath, Goudge made 178 recommendations to improve the system.
Dale also cites a 2017 murder case in which Justice Anne Molloy allowed an application to exclude parts of a chief pathologist's report, finding that he did not meet the standard of an expert witness, and was biased in his testimony.
“The chief pathologist allowed his urge to protect the vulnerable to interfere with his duties as an expert. He failed to question whether confirmation bias (conscious or unconscious) was driving the conclusions in his report,” she writes.
Dale also references the 1984 case where a neighbour was wrongly convicted of the rape and murder of an Ontario child.
She points to the December 2017 deaths of a billionaire Toronto couple in which “the police theory of a murder-suicide ... resulted in the loss of potentially valuable forensic evidence."
“A demand for change is in order. Where possible, defence counsel needs to be involved in the testing process. Too often what is tested depends on what the Crown/police want. This leads to an impartial selection that could be linked to their confirmation bias,” Dale writes in The Lawyer’s Daily.
“Defence counsel should be included in meetings between the police and CFS. They maintain that they do not ‘work for’ the police. Prove it.”
Dale adds that all relevant exhibits should be tested, and complete results disclosed to defence counsel.
“A recommendation stemming from Goudge was to introduce an expert witness code of conduct in criminal proceedings, making experts accessible to both the Crown and defence counsel,” Dale writes.
“I am not alone with these thoughts. One would be hard pressed to find a defence lawyer who is not in violent agreement with the position taken of the Criminal Lawyers’ Association in their intervener application before the SCC. In it, they called for making the issue of independence of an expert one of admissibility and not just weight.
“A lack of independence contributing to compromised impartiality should result in the exclusion of the evidence entirely.”
Dales calls on her fellow defence lawyers to continue the fight, challenging them in The Lawyer’s Daily article to take seven actions:
- Educate junior counsel. Let them know that they can contact the biologist at any time. They are not the property of the Crown. Warn them that their correspondence will be immediately copied to the Crown.
- Request to be involved in the process where the investigation is ongoing.
- Review disclosure with a fine-tooth comb. Create your own spreadsheet if necessary. Ensure all communication between CFS and police has been disclosed.
- Draft a chapter of cross-examination devoted to the issue of independence.
- Create submissions relating to admissibility/weight.
- Petition the government to fund independence audits.
- Participate in a CFS testimony review program when requested.
Dale writes, “Will CFS ever be completely independent from the police/Crown? No. This doesn’t mean that our expectations for improvement should be snuffed out.”