DR. CHARLES SMITH'S LEGACY; A NEW COLUMN BY ALAN SHANOFF IN THE TORONTO SUN;

Columnist Shanoff's latest column on the Smith debacle ran today under the heading "Expert witness reveals flaws in system," and the sub-heading, "Due to the incompetence of now disgraced pediatric pathologist Dr. Charles Smith numerous people were wrongly convicted and imprisoned."

"An appeal by a man convicted of shaking his boy to death in 1995 was launched last week. Children were wrongly taken from their parents. How did this happen?" the column began;

"In large part it's due to Smith having been qualified to give evidence as an expert witness in the field of pediatric forensic pathology at least 45 times," it continued;

"Based on the findings of the Justice Stephen Goudge Report, we know that allowing Smith to testify as an expert or accepting Smith's evidence as expert testimony was erroneous. We know that Smith had no training in forensic pathology.

We also know that in 1991 Justice Patrick Dunn acquitted a babysitter charged with manslaughter in the death of a 16- month-old child.

In the course of his reasons acquitting the babysitter Justice Dunn lowered the boom on Smith pointing out that Smith wasn't familiar with the scientific literature, failed to conduct a thorough investigation, gave unscientific evidence and was dogmatic in the giving of his evidence.

Yet, Smith was allowed to conduct autopsies, advise Crown attorneys, and testify in other suspicious death cases until 2001!

He was never confronted with Justice Dunn's critical findings. How could this have happened? Why weren't Justice Dunn's findings on Smith circulated and relied upon by others? Why was Smith repeatedly allowed to testify as an expert witness?

ALLOWED BY JUDGES

Let's start with the dozens of judges who allowed Smith to testify as an expert. Judges are the ultimate gatekeepers when it comes to allowing a witness to give opinion, as opposed to factual, evidence.

Only the judge can give the permission which allows experts to testify. It's fair to say that many judges failed as gatekeepers. They not only allowed Smith to testify as an expert but they failed to define the limits of Smith's so-called expertise.

There's plenty of blame to go around. Let's not forget the dozens of Crown attorneys who asked the judges to allow Smith to testify as an expert witness. It's also fair to say that many defence lawyers failed to properly question Smith's qualifications an expert witness.

This is admittedly a complex area but how do we explain such massive human error? Isn't there a network of defence lawyers who share information? Why didn't other defence lawyers use Justice Dunn's findings to attack Smith's expertise or credibility in other cases?

Would you believe that judges have adopted a rule of evidence making it extremely difficult to cross-examine or question a witness based on prior negative judicial comments or findings made about that witness?

It's true; judges are extremely reluctant to allow any witness, let alone an expert witness to be cross-examined on the basis of what was said about them in other cases.

PREVIOUSLY REJECTED

In a 1999 case the Ontario Court of Appeal stated that "it is not proper to cross-examine a witness on the fact that his or her testimony has been rejected or disbelieved in a prior case."

So even if others knew about Justice Dunn's findings, they could not use it to impeach Smith as an expert witness in subsequent cases. In other words, let's pretend Justice Dunn's findings were never made.

If we want to prevent some of the human error that leads to wrongful convictions surely we have to reject this counter-intuitive rule of evidence.

The fact that an expert witness was disbelieved in one case must be relevant in other cases. The fact that a police officer has been caught in a lie in one case must be relevant in other cases. It's common sense, isn't it?

I'm not suggesting that the expert or officer should never be allowed to testify again or that their evidence should never be believed. But surely the prior findings are relevant in subsequent cases and the witnesses should be required to satisfy the court why their evidence should now be believed.

So, in the end judges failed us in acting as gatekeepers to keep out Smith's so-called expert testimony and they failed us by adopting a rule that prevented defence lawyers from using Justice Dunn's findings to attack Smith's credibility and expertise.

We need to learn from our mistakes."

Harold Levy...hlevy15@gmail.com;