Buried in all of research studies commissioned by the Goudge Inquiry is a bold recommendation:
"Discontinue the use of “child abuse experts” in criminal trials and carefully assess their use in CAS (Children's Aid Society) hearings until such time that balanced training and educational programs for them can be constructed, or limit the use of numerous experts of this sort in a single trial."
Prof. Katherine Gruspier makes this recommendation in her paper: "Pediatric forensic pathology as forensic science: The role of science and the justice system";
This recommendation will not likely be welcomed by the legions of hospital SCAN-team (Suspected Child Abuse and Neglect) members across Canada who often testify against parents and caregivers - even though they are untrained in forensic science - because they have undertaken child abuse investigations while the child was still alive.
But the recommendation is a breath of fresh air;
Dr. Gruspier is Adjunct Professor of Forensic Science, Forensic
Science Program, University of Toronto at Mississauga and a Consultant Forensic Anthropologist, Office of the Chief Coroner for Ontario.
She notes that, "Opinions expressed are those of the author and do not necessarily represent those of the Office of the Chief Coroner for Ontario or the Commission on Pediatric Forensic Pathology or the Commissioner".
"Untrained in forensics, child abuse experts are clearly advocates," Gruspier writes in the "Conclusions" section of her paper, which is published on the Goudge Inquiry Web-site;
"The courts allow these individuals to opine outside of their area of expertise to provide opinions on the cause of death, or the cause of trauma in a living child, and the Marquard remedy of limiting the weight of these opinions is of dubious effectiveness," she continues.
(The Supreme Court of Canada ruled in the Marqhard case that expert evidence need not be rejected in its entirety merely because the witness ventured an opinion beyond the area of expertise in which he or she is qualified. Instead, the remedy for the judge to instruct the jury to disregard the evidence);
"It is true that the most vulnerable in our society will always need a voice to speak for them, but the platform should not be the criminal courts.
If the cause of death of a child is undetermined by a forensic expert, then
perhaps it truly is undetermined.
If the Crown can make a case for guilt on circumstantial evidence, then they should, but it should not rely upon overwhelming the trier of fact with numerous “experts” spouting unscientific interpretations.
In the past few decades, medical advances have allowed for the continuation of life in cases of children who, if born prematurely prior to this period, would have died. As yet, the consequences of these efforts at preservation of life in the premature infant are not truly understood.
Advances in medical imaging have allowed the radiologist to see things that have previously not been seen inside the human body, and for some reason they interpret these findings as suspicious rather than developmental.
Counsel should be, first, an officer of the court, but in these cases it appears that they are stacking the deck in order to win their case."
Gruspier notes in her paper that, "it is not uncommon for the courts to qualify
persons associated with clinical child abuse teams as child abuse experts, although the field does not exist by way of examination and certification.
"These experts are often called in cases where a child did not survive, but they are equally as commonly utilized in child custody cases and cases where the child survived.
In these cases, there may be no forensic pathologist or forensically trained individual involved at all";
Gruspier is particularly concerned that, "In cases both where the child has survived and where it has not, we see this unique contribution of other “experts” to a conviction.
In no other types of forensic pathology cases do we see a troop of experts who are produced for the trial who have made a determination of the cause and manner of death based in part upon an interview of the suspect, usually prior to the death of the individual.
This is what happens when a team like the (Hospital for Sick Children) SCAN team is activated".
Gruspier acknowledges that "other medical experts" may be called to provide "ancillary studies" for forensic pathologist.
She stresses, however, that these experts, "will testify as to their specific
findings, within their area of expertise, and will not normally provide the cause and
manner of death in their reports or testimony."
This Blogster will be watching Commissioner Stephen Goudge's report carefully to see if he will bite the bullet on this well-justified recommendation.
SCAN-teams have contributed to wrongful prosecutions and miscarriages of justice within our criminal justice system - as has been demonstrated by several of the cases before the inquiry.
Justice Goudge can do something about it.
Harold Levy...hlevy15@gmail.com;
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