“THIS IS ANOTHER EXAMPLE OF THE DANGERS OF THE POLICE FOLLOWING SCIENTISTS TOO CLOSELY WHEN THE SCIENTISTS ARE BUILDING A SCIENCE, NOT FOLLOWING A SCIENCE”.
JAMES STURMAN Q.C;
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British barrister Neil Baki makes an important distinction between scientists who are building a science - and scientists following a science - in a article published in the Criminal Bar Quarterly on March 1, 2009 under the heading, "New Science."
"Establishing the validity of new scientific techniques and theories, and the basis for their interpretation, is essential before evidence derived from them can be used in Court," this section of Baki's article begins.
"It is not always straightforward for Judges to decide whether to admit forensic evidence," it continues;
"The Court of Appeal has recently considered earprint, lip-reading and facial mapping evidence. Indeed, polygraph tests are currently being used in criminal trials in many other countries including Canada and the United States.
Sir Alec Jeffreys has expressed his concern about the lack of protocol in the UK for deciding whether to admit scientific evidence, in relation to the validation of new scientific techniques.
The results of this lack of clarity can be seen in the case of Mark Dallagher, the first man in the UK who was convicted of murdering an 84 year old woman by using an ear-print.
His Counsel, James Sturman Q.C. told the Court, “This is another example of the dangers of the police following scientists too closely when the scientists are building a science, not following a science”.
English courts have used this technique and obtained convictions in three other cases even though it has been widely discredited mainland Europe and the United States.
Daubert Principles:
The UK Court should be more rigorous in its approach to new scientific techniques.
Most states in the US follow well defined procedures to establish whether evidence from a particular scientific technique should be admitted.
According to the Frye Test (named after a defendant in a murder case in 1923), Court can only admit evidence derived from a novel scientific method once it has gained general acceptance within the scientific community to which it belongs.
This test was further developed in the Daubert Test which has four criteria:
(i) whether the theory or technique can be (and has) been tested);
(ii) whether it has been subjected to peer review and publications;
(iii) in the case of a particular technique, what the known or potential rate of
error is or has been;
(iv) whether the evidence has gained widespread acceptance within the scientific ommunity.
The introduction of a similar such test in the UK may serve as a gate-keeping test and act as an early warning sign, particularly in the context of our adversarial system.
Harold Levy...hlevy15@gmail.com;
