Book Review: "The Lawyer's Guide to the Forensic Science,' edited by Caitlin Pakosh, published by Irwin Law, reviewed by Harold Levy, Publisher, The Charles Smith Blog.
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"Pakosh’s opus
could not come at a better time.
Once thought to be ‘sacred,’ forensic science is now viewed with skepticism (that’s a good thing) – and individual forensic sciences are
coming under increased scrutiny.
“The lawyers guide to the forensic sciences,” enables lawyers to stay on top of these
dramatic developments in the U.S.A. and elsewhere – as it strips away the
mystique and provides an excellent base for understanding its workings.
This opus (969 pages including a very comprehensive index) is published by Irwin Law, publisher
of several important works on the role that flawed forensic
science has played in miscarriages of justice, including ‘Forensic
Investigations and Miscarriages of Justice’ by Robert Moles, Bibi Sangha, and Kent Roach.
So how does one review such a monumental work – aimed at
linking criminal lawyers with forensic experts from so many diverse fields of
science?
The first step is to read it – a task which I began with trepidation.
However I quickly realized that Pakosh, case management counsel of Innocence
Canada (formerly known as AIDWYC) since 2012 and responsible for managing the
Association’s cases across Canada, has developed an approach which makes the literary journey most readable,
understandable and interesting -
and loaded with tips defence counsel can use to counter experts spawning flawed science in the
courtroom.
Contributor Vladimir
(Val) Chlistovsky, for example, suggests (among many others) that counsel
consider a list of helpful lines of inquiry such as:
“Did the investigator use arc mapping and did the results
support the fire patterns in determination of the area of origin?
“If the investigator’s theory multiple areas of origin, what
consideration was given to the
possibility of fire spread as opposed to multiple areas of origin?”
“How did the investigator identify potential ignition
sources within the area(s) of origin? This often involves excavation of the fire debris , by hand in small scenes or using heavy
equipment in large scenes.”
Thinking back on my criminal law practice (many years ago) I
think that I would have served my clients much better on an arson case (or in
cases involving other forensic sciences that are now recognized to have been
highly flawed at the time), having
been exposed to this excellent book.
In addition to valuable tips for cross- examination of
prosecution ‘experts,’ the fire
investigations chapter also contains a case study, a section on legal context,
and a role that the particular forensic ‘science’ – think ballistics, FBI hair matching,
and mixed DNA – plays in wrongful
convictions. Pakosh also laces the
text with helpful summaries
and conclusions.
I particularly was drawn by Pakosh’s excursion into areas
such as shaken baby syndrome and ‘repressed memory’ – and the exposure I
received to areas of forensic science which I had not been previously exposed
to such as digital
evidence, forensic anthropology, forensic botany and forensic nursing.
Above all, I
applaud Ms. Pakosh for the book's stress in all areas– on the importance of countering ‘bias’ (deliberate or not)
– on the part of experts testifying for the prosecution.
In the chapter on fire investigation referred to above, for example, Chlistovsky writes, “Even the perception of bias may become an issue.
When, by their speech and conduct, fire investigators appear to be “part of the
team” or to have lost their objectivity, defence council may attempt to portray
the investigation as biased. To guard against the undermining of their
objectivity, investigators should always be cognizant of how they gather their information and how that information is relevant to
determining the origin and cause of the fire under investigation.
The danger of ‘bias’ is also underlined in the chapter on forensic nursing, with reference to the testimony of
a nurse who worked on the sexual abuse unit of a Toronto hospital. As the trial judge opined: “What was
somewhat troubling to this court was that this impressive witness was not
offering her form conclusion in the traditional expert’s context of it being
more consistent with one position than another. Rather, she advocated an unqualified conclusion that would have the
effect of usurping the function of the Court on the ultimate issue.”
The judge went on to note that the nurse conceded that she
was less than entirely objective. “She
describes the mandate of this Centre as believing its clients and providing
them with unconditional support, a laudable and understandable approach…”She admits to a certain bias in her attitude in analyzing what she sees on the basis of what the
client tells her. Her function is
to gather evidence supporting
sexual assault.”
“Her strong
conclusions bordered on advocacy, perhaps in response to the recanting nature
of her patient’s testimony. That is not the role of a neutral expert. However much I respect the
qualifications and experience of this witness, I place somewhat reduced weight
on her opinion of the significance of her observations.”
Given the stress on weeding out bias, it’s no surprise that
Pakosh has devoted some of her pages to former doctor Charles Smith, the namesake of this Blog, with an account of what has been
learned – and what changes have been made – in the aftermath of the public
inquiry into many of his cases.
Indeed, Pakosh provides details of numerous public inquiries into miscarriages of
Justice - where science has also
been sitting in the prisoner’s
dock - that have been conducted in
Canada and elsewhere over the decades.
It’s time for me to provide a conclusion of my own: Bravo to Irwin for providing yet another work
which will prevent flawed forensic science and
inadequacies in the court process
from yielding miscarriages of justice – and bravo to Pakosh, and her contributors,
for providing us - not just defence lawyers, but prosecutors, expert witnesses and judges as well, no matter in which country they happen to reside
- with such an array of helpful tools for avoiding wrongful
convictions.
It’s a worthy
goal for all of us.
Harold Levy: Publisher; The Charles Smith Blog.
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