Up-Date: Expert Evidence Part Two: Researcher For Goudge Inquiry Recommends Keeping "Child Abuse Experts" Out Of The Criminal Courts;

MR. ROGER YACHETTI:" SO YOU DIDN'T FIND ANY EVIDENCE OF SEXUAL ABUSE?

DR. ANNE NIEC: SO, SO, THE BOTTOM LINE IS ALTHOUGH, IF THE FORENSIC EVIDENCE IN THE SENSE OF THE SWABS WERE NORMAL, ALL WE CAN SAY IS THAT EVEN THOUGH YOU MAY HAVE NORMAL SWABS, YOU CAN'T RULE OUT SEXUAL ABUSE."

FROM TRANSCRIPT: REGINA VS. KUZYK;

A recent posting discussed Professor Katherine Gruspier's recommendation to remove "child abuse experts" from the criminal courts. (Up-Date: Expert Evidence: Part One);

The recommendation reads: "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."

I thought about this recommendation when I was reading the transcript of Regina V. Kuzyk, which became the subject of a recent three part series on this blog under the heading "Dr. Smith for the defence" and came upon the evidence of Dr. Anne Niec who was qualified as "an expert in Paediatric Care and Child Abuse."

Dr. Niec would appear to be the kind of expert Prof. Gruspier has in mind because she is a member of a team at the McMaster University Medical Centre in Hamilton Ontario which plays an advocacy role - as is evident from it's name: "The Child Advocacy and Assessment Program."

Professor Gruspier questions the wisdom of allowing advocates to serve as experts in the criminal justice process.

Dr. Niec, a pediatrician, told Court that the program "addresses issues of child child maltreatment" by conducting "out-patient assessments."

Here is a portion of Dr. Niec's cross-examination by defence lawyer Roger Yachetti, which, to my mind illustrates why Prof. Gruspier's recommendation makes sense.

Cross-examination: Roger Yachetti;

Q: Dr. Niec. Can we just get one thing clearly out of the way at the outset? Did you find any evidence of sexual abuse of this child?

A: It's hard for me to answer that question, because in order for me to answer that question, I don't know what the forensic evidence showed.

Q: Let me tell you what it showed. Nothing;

A: That doesn't mean anything, because we know in the majority of cases of sexual abuse and if you look at the definition of sexual abuse, there is no evidence, and that is commonly seen in pre-pubertal kids, that you don't see evidence.

Q: So you didn't find any evidence of sexual abuse?

A: So, so, the bottom line is although, if the forensic evidence in the sense of the swabs were normal, all we can say is that even though you may have normal swabs, you can't rule out sexual abuse.

Q: Did you find any evidence of sexual abuse?

A: I didn't. I had concerning the physical examination...

Mr. Yachetti: Your Honour, could the witness be asked to answer the question?

His Honour: No, she will answer it in her own way.you can say there is no sexual abuse. So, what I can say is that, you know, if all the evidence came back within normal limits, then we have a normal exam in the sense that there is nothing specific there for sexual abuse, but that doesn't mean that it couldn't be a possibility.

Q: Did you find any evidence of sexual abuse?

A: I would have to answer it the same way. I apologize it is not clear...

Q: Are you telling me that question is not capable of a yes or a no answer?

A: I am telling you exactly that because in order to make sexual abuse, it is not only looking at the physical evaluation, because in most instances the physical exam is non-contributory. What s most important is the history and what the child says, and unfortunately we don't have a history here and we can't interview the child...

(At this point in his cross-examination, Yachetti pointed out to Dr. Niec what were, in his view, clear errors, in the information she had received from other individuals through Tristin's chart);

Superior Court Justice David Crane told the jury that Niec's opinion, based on a physical examination, and a sexual assault kit - was that the injuries were caused by "acute inflicted trauma".

"Someone did this" is what I have noted her saying," Crane said.

Justice Crane also told the jurors that, "She had no interviews and she used the hospital chart as to prior medical treatment."

Shelley Anne Kuzyk faced life in prison as the murderer of her Godson if convicted at this trial.

However, Dr. Niec's evidence placed a tangible onus upon her to somehow establish to the satisfaction of the jury that she had not physically abused Tristin - even though there was no physical evidence of abuse.

This evidentiary burden - which does not exist for any other crime in the Criminal Code - flies in the face of the presumption of innocence which protects Shelley Anne Kuzyk and anyone else charged with a crime in Canada.

It is noteworthy that Dr. Michael Pollanen, Ontario's Chief Forensic Pathologist, has cautioned that pathologists should not use this "default diagnosis" approach in their expert evidence.

Dr. Pollanen discussed the danger of this non-evidence based approach to forensic pathology in a paper called, "Review of the pediatric pathology review reports: Ten systemic issues," prepared for the Goudge Inquiry.

"A default diagnosis is claiming that a diagnosis is substantiated because it cannot be excluded," wrote Pollanen.

"This gives rise to potentially dangerous diagnostic reasoning embodied by the proposition: "In the absence of evidence to the contrary the findings are indicative of non-accidental injury."

"This creates child abuse as a default position and puts the onus on others to seek contrary evidence."

This Blogster hopes that Commissioner Goudge takes Prof. Gruspier's important recommendation to heart and recommends that advocates - such as members of SCAN teams - be kept out of the criminal courts.

Harold Levy;...hlevy15@gmail.com;