1. The admissibility of scientific evidence and expert testimony in court has been the subject of recent debate in both UK and USA. Briefly discuss the background and compare and contrast how courts in both Britain and America make sure admitted evidence is relevant and reliable.
The courtroom, never an isolated corner of the societal landscape, has felt science’s impact. Over the years, courts have tried various methods to respond to the increasing influx of science. However, the problem of defining standards for admitting scientific expert testimony is one with a venerable history and in all likelihood, an enduring future. Science and technology has steadily grown in significance in the twenty-first century. Admissibility of proffered expert testimony must be evaluated by trial courts, even though the manner in which they accomplish this task varies greatly among jurisdictions. This variability revolves around two basic aspects of the admissibility determination, they include; the nature and rigor of the legal test to be applied whereby courts differ substantially in the ways they define the judges evidence and others taking little or no responsibility to check the evidence. The second concerns the criteria used to assess the expertise under whatever legal test is adopted. This involves some courts using criterion that calls for deference to the professional opinion of experts from the respective field, whereas others assume the responsibility themselves to evaluate the scientific basis of the proffered opinion.
The American and British judicial system has unceasingly been the subject of widespread heated debate in relation to criminal evidence. As a result, this has propelled the enacting of significant changes in their operations among them being the evaluation of expert testimony. However, legal standards in both judicial systems vary from rigorous to permissive (Toby 1995).
The US Supreme Court’s opinion in the 1993 case of Daubert v. Merrell Dow rejected the Frye test for the admissibility of certain scientific evidence, thereby applying the Daubert standards. This was intended to clear the way for admitting novel scientific evidence like DNA. The Daubert test is a rule of evidence that is intended to end the current controversy among the experts as a result having a general acceptance in the scientific community. However it requires an independent judicial assessment of reliability (Berger 2000). ‘The absence of an agreed protocol for the validation of scientific techniques forced the United Kingdom House of Commons Science and Technology Committee recommending the creation of a Forensic Science Advisory Council to regulate forensic evidence in the United Kingdom. This reform of the law of evidence in regards to admissibility of scientific evidence was based on the Daubert standard’ (House of Commons Science and Technology Committee 2005, p.173).
All trial courts assess whether the evidence can be properly applied to the facts of the case at hand. Daubert standard establishes a number of reliable and relevant factors that can be used in present and subsequent cases. Karl Popper (1989, p.36) discusses that ‘the criterion on the scientific status of a theory is its falsifiability, refutability and testability’ thus demonstrating whether the scientific theory has been empirically tested. Daubert standard also incorporates Marx standard of explaining itself with sufficient clarity and simplicity so that the court can understand its plain meaning. Additionally to ensure that flaws in the methodology are detected and that the technique its way into use via the literature, scientific technique applied should be subjected to peer review and publication. Furthermore both courts agree that, for an evidence to be admissible, it must be logically relevant to a collateral fact or disputed issue. In relation to the Criminal Justice Act 2003 of the United Kingdom, this means that it should contribute to an explanation of the background of the case so that the disputed issues can be resolved in their proper context. According to James Thayer (1898, p.265), ‘the law furnishes no test of relevancy as a result it tacitly refers to logic and general experience’.
Therefore, the court cannot admit an item of evidence which is not relevant to a matter in the proceedings. However, some critics believe that Daubert caused judges to become amateur scientist, many lacking the scientific literacy to effectively fulfil their role as gatekeeper of scientific evidence. (Gatowski 2001)
- Berger, M 2000, ‘The Supreme Court’s Trilogy on the Admissibility of Expert Evidence,’ Reference Manual on Scientific Evidence, Federal Judicial Centre, Washington DC.
- Gatowski, S et al 2001, ‘Asking the gatekeepers: A National Survey of Judges on Judging Expert Evidence in a Post-Daubert world’, Law and Human Behaviour, pp 433–458.
- House of Commons Science and Technology Committee 2005, Forensic Science on Trial. The Stationery Office Limited, London, HC96-I, para.173.
- Popper, K 1989, ‘Conjectures and Refutations’, The Growth of Scientific Knowledge, 5th ed., Routledge, London.
- Thayer, JB 1898, A Preliminary Treatise on Evidence at the Common Law, p.265.
- Toby EH 1995, The Rise of Early Modern Science, Cambridge University Press, Cambridge.
2. Evidence from Forensic Science played a critical point in the following trials listed a-d. For each case you select briefly discuss the key forensic evidence, the scientific background to this type of evidence and its significance to the trial.
a. R. v Barry George (Jill Dando Murder)
In a criminal trial, the prosecution has to prove its case beyond reasonable doubt. In the R. v Barry George case involving the murder of Jill Dando, a well-known television presenter on April 1999. The accused was convicted by a majority of ten to one and sentenced to life imprisonment.
The trial of Barry George started on 2nd May 2001 at the Old Bailey, London. George was on trial for the murder of a famous television presenter, Jill Dando who was killed on the by a single gunshot to the head. At trial the prosecution mainly counted on four categories of evidence; there was evidence which identified Barry George as being at the scene of the murder some four hours before it was committed and that he demonstrated such features of similarity to the positive identification. Secondly, it was alleged that he had made considerable attempts to create a false alibi for the time of the shooting. Thirdly, the prosecution characterised his interview as containing alleged lies, in particular, as to his knowledge of and interest in the television presenter. Finally, the Crown relied on the similarity of the firearm discharge residue, FDR found at the scene of the crime within Miss Dando’s wound and the single particle of FDR in the pocket of George’s coat. In relation to the FDR evidence, the firearms residue found in George’s coat only partially matched those recovered from Dando’s hair, and therefore, could not completely link George to the scene. The fact that the jury took almost five days to decide upon a verdict is somewhat indicative of how compelling the evidence presented was. (Moles 2007)
The prosecution relying on the evidence from the expert witnesses at the trial suggested that it was likely that the particle of FDR came from a gun fired by Barry George rather than from some other source. However, those witnesses and other witnesses from the Forensic Science Service told the Court of Appeal that this was not the right conclusion to draw from the discovery of the particle of FDR. In fact it was no more likely that the particle had come from a gun fired by George than that it had come from some other source.
In the light of the evidence presented, it was impossible to know what weight the jury attached to the FDR evidence. The fact that it was just as likely that the single particle of FDR came from some extraneous source as it was that it came from a gun fired by the appellant proved the verdict unsafe making it unreliable.
On 15th November 2007, the Court of Appeal came to a conclusion that if this evidence had been given to the jury at the trial, there is no certainty that they would have found Barry George guilty. For this reason the appeal was allowed and his conviction had to be quashed. George appeared before the Old Bailey on 14th December 2007 and after a series of trials, it ended with George’s acquittal on 1st August 2008. (BBC News UK 2008)
- Moles, R N & Sangha, B 2007, UK Cases: R. v. Barry George  EWCA Crim 2722. 2nd Dec. 2010. <http://netk.net.au/UK/George.asp>
- BBC News UK 2008, George not guilty of Dando murder, news.bbc.co.uk, 1st December 2010. <http://news.bbc.co.uk/1/hi/uk/7536815.stm.>
b. R. v Jeremy Bamber (Murder of 5 family members)
Convicted on 29th October 1986 by a majority of ten to two at Chelmsford Crown Court for the murder of five of his adoptive family, Jeremy Bamber has consistently maintained his innocence. This conviction led to a sentence of life imprisonment, with a recommendation he should serve a minimum of twenty-five years behind bars. A new bid to clear his name, has resulted to two appeals on the basis of compelling new evidence.
The main plank evidence submitted to the court was the blood found in the sound moderator, the windows issue and an alibi among other evidences. On the basis of the facts delivered during the trial, the Crown Court contended that this decision had to reflect that these five murders were carefully planned, that the applicant made careful and sophisticated preparation to carry out the killing, to exculpate himself and to cast blame on his sister, and that the execution of his plans was utterly ruthless. Since this crime was of the highest level of seriousness, under the Criminal Justice Act, it stipulated whole life order to be granted by the sentencing judge. (Express 2010)
However, the forensic evidence obtained could not be used to obtain a fair trial. The issue of the sound moderator, and whose blood was in the moderator was of fundamental importance in determining the identity of the person responsible for the shootings. However, by the time the case came to court, it was stated that the possibility of the blood being a mixture was remote. This conviction had been expressed before DNA profiling came into existence. Forensic tests that are more recent have been conducted on the blood in the moderator in the hope that its provenance could be established but the analysis failed to identify any of Sheila Caffell’s DNA. Alternatively a DNA profile was found of June Bamber and an anonymous person. The fact that Sheila’s DNA has not been detected is highly suggestive that her blood was never in the moderator in the first place. Therefore it means that she could have carried out the shootings, placed the moderator in the cupboard and then shot herself having realised that she could not shoot herself with the moderator in place. Thus, the absence of Sheila’s DNA strongly argues against the suggestion that Bamber had actually committed the murders. Furthermore, documents recently obtained by the appellant team show that the sound moderator was dismantled and reassembled incorrectly before it was tested. Likewise, by changing the arrangement of baffle plates within the sound moderator will substantially affect the accuracy of the evidence. Summarily, the new evidence obtained has shown that the key forensic evidence during trial was treated in a very cavalier way. (Bamber)
Despite the dismissal of two appeals, Jeremy Bamber continues to protest his innocence, having commissioned a website in order to let the truth be heard. In December 2002, following the dismissal of his recent appeal hearing, he wrote, ‘ no one doubt that, in years to come, justice will be achieved and my conviction will be quashed’ (England and Wales Court of Appeal Decisions 2009). In my opinion, mistake of facts regarding scientific and expert evidence has resulted to passing of wrong judgment, as demonstrated in this case. This proves it unreliable in certain case.
- Bamber J, The Official Website of Jeremy Bamber, <http://www.jeremybamber.com/?q=case-synopsis_Jeremy_is_.innocent>
- England and Wales Court of Appeal (Criminal Division) Decisions 2009, Bamber, R v  EWCA Crim 962, 2nd December 2010, <http://www.bailii.org/ew/cases/EWCA/Crim/2009/962.html>
- Express 2010, Jeremy Bamber is a Murderer, I Know It, 2nd December 2010, <http://www.express.co.uk/posts/view/197577/Jeremy-Bamber-is-a-murderer-I-know-it>