Jurors Will Misconstrue Its Value Law General Essay

Published: 2021-08-06 11:35:07
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The statistical significance of the evidence ( DNA testing ) has proved difficult to explain to a jury. [5] Which also focus my attention on the adversarial and forensic scrutiny of DNA testing in criminal trials dominated by the question of expert witness evidence and the extent to which flawed testimony has led to miscarriages of justice. It is important to state that while such technology find wide use both in civil and criminal trials; this essay will focus on the impact of DNA evidence and the adversarial contest within the criminal justice system in the United Kingdom common law jurisdiction. I shall briefly contrast, explore relevant cases regarding the use of controversial scientific or technological evidence ( i.e. DNA evidence ) in other commonwealth nations ( i.e. Australia and the United States of America ) as a way of identifying the current approaches in this other commonwealth nations. It will be argued that the use of forensic evidence match ( DNA evidence ) which has been proven since its inception in the early eighties to convict the guilt and to exonerate the innocent in adversarial trials. However, DNA evidence is not the major problem based on its reliability, rather, I shall explore the attitudes of professional trial participants, as well as the individual juries exposed to the significance of such evidence and the so called expertise fallacy. This is the ambitious challenge that I intend to explore in this essay.
The basic function of a criminal trial is to find out the truth about a crime, in which fact - finding is planned round challenging versions of events advanced by the parties to the litigation. The quest for truth and the driving force of any criminal justice system particularly in the United Kingdom or any other relative commonwealth nation can be classified into three distinct basics aims or values driving such systems. [6] First, is the goal of error reduction ( i.e. the core aim to find out the truth about a crime and thus avoid false verdicts ) [7] , second, is inevitable to avoid, that is error will occur from time to time. This goal begs the question of which sort of error, a false acquittal or a false conviction, is more serious, and thus more earnestly to be avoided. [8] The third set of values do not explicitly address trial error but focus instead on other issues important to the criminal justice system. [9] However, the first two basic aims are relative and endorsed for the purpose of my discussion in this paper to unveil the disparities in the courtrooms over the use of technology ( DNA evidence ) to convict the guilty and to exonerate the innocent in criminal trials.
In what follows, how is it for lay judge and juries to evaluate scientific and technical evidence? Courts have struggled with the question of how to handle scientific evidence in a system of justice in which lay jurors are responsible for deciding the facts of the case. As described by Jasanoff, the relationship between science and the courts is described this days in language more appropriate to an epic battle between the forces of light and the power of darkness. ( Jasanoff .S, 1992. pp.345.) Most notably, most critics have cast blame on the scientific illiteracy of legal fact - finders and the tactics of ‘self-proclaimed experts’ whose expertise are available for representations of ‘baseless scientific positions’ in the adversarial trials. The fact that the role of judges and jurors typically untrained in science and being placed in capacities to understand scientific evidence to inform decisions in particular cases. Such decisions, seems a "daunting task" beyond their comprehension. The experience to date suggest unambiguously that the effectiveness of traditional safeguards has indicate the undesirable situation when considering the capacity of the criminal trial to effectively manage incriminating expert evidence in a manner that genuinely reflects commitments to a fair trial. [10] 
Given these flaws, taking into account that much incriminating expert evidence is either unreliable or of unknown reliability, since conclusions presented by experts at criminal trials is often misguided, there has been intense debate over the ability of ordinary citizens to understand ‘complex or conflicting technical and scientific evidence’. [11] As Roberts and Zuckerman states: ‘it is no exaggeration to regard DNA technology as the most revolutionary contribution to criminal investigation and forensic proof since the introduction of fingerprinting a century earlier’(2010, pp. 470 ). The increasing popularity of DNA evidence explains why in England and Wales, and many other common law nations, the laboratory procedures and imperceptible entities of ‘molecular biology’ have become ‘routine tools’ for criminal investigation. [12] In all due fairness,( emphasis based on statement above )the increasing reliance on DNA evidence in the past and presently has made it possible to match a suspect to a crime and to redirect investigative methods away from a wrongly convicted victim to the actual perpetrator. [13] 
That begs the question, why, the judge and the jury may need special help with matters relating to scientific evidence which fall outside their ordinary understanding for an expert witness to testify to enable them to draw proper inferences from the facts. In such cases, the so called expert witness will only be admitted where the matter concerned is one which is outside the knowledge or understanding of the court or jury. [14] However, traditionally, English law, notionally proceeds upon the basis that witnesses testify to the facts and not opinion from which the court determines what inferences to draw, therefore, the law does not generally admit opinion evidence but, in fact, there are exceptions to this general rule. Thus, an expert opinion evidence constitutes an important exception to the general rule which prohibits the admission of evidence of a witness’s opinion not to usurp the role of the court or jury. [15] This exception has come with a ‘big price’ that had contributed to a high number of cases of miscarriages of justice. The law commission’s report represents an important response to continuing problems with expert evidence. [16] Hence, the report cast doubt on the reliability of expert opinion evidence and too much reliance of the court in criminal proceedings and questions the value of judgements of the adversarial trial.
Thus, "the main reason ( provided ) for the proposed reforms, particularly the renewed focus on reliability, is the overly inclusive approach to admissibility associated with the current practice". [17] 
At this point it is pertinent to ask why expert opinion evidence of doubtful reliability is being proffered for admission, and placed before the jury, too readily. [18] This follows from the report of the Law Commission report, critical of what it described as the "laissez faire" approach to expert opinion evidence. The Law Commission has suggested that there may be a ‘culture of acceptance’ in courts particularly in relation to evidence of a scientific nature. This have been highlighted in recent years by a large number of high profile miscarriages of justice. All these cases have a common distinctive nature in the outcome that has led to a high number of flawed justice based on ‘unwarranted and unjustifiable reliance’ that had been placed on such evidence.
Take, by way of illustration, a brief overview of these cases that centres around the real nature of the question of standards for determining the admissibility of scientific evidence in England and Wales.
In R v Dallagher [ 2002 ] EWCA Crim 1903, the ear print case, the defendant was convicted on a charge of murder. One of the so called prosecution expert ( a Dutch officer ) he was sure, and ‘absolute convinced’ that Dallagher had left the ear print while a second expert opinion asserted that there is only a remote possibility that the ear print at the scene of the crime was not his. A DNA test subsequently revealed that fallibility of the test, demonstrating the unreliability of such evidence as well as the false reliance placed in scientific proof of the expert witness. This begs the question of who may qualify as an expert witness? The facts of this case highlights how the courts are not too rigid in their approach of whether a particular witness can demonstrate sufficient competence within his / her field to be recognised as an expert and to be permitted to give evidence of his opinion. Despite this, in the subsequent case of R v Kempster ( No.2 ) [ 2008 ] 2 Cr App R 19, [ 2008 ] EWCA Crim 975, highlights English Law’s continuous receptive approach to novel science. This was another ear print case leading to the conviction of the defendant. However, the evidence was not conclusive because the expert evidence opinion was excluded typically because it involve ‘scientific theories’ that have been ‘wholly discredited’ or conflicts of the expert witness erroneous of the facts. [19] 
Also, the unsatisfactory state of the law in admissibility of scientific evidence is exemplified in these two cases of Sally Clark and Angela Cannings. Both were convicted of murder of their children. In sally’s case, the expert was not a statistician, neither was there any involvement in the trial. At trial, Sir Roy Meadow testified that the chance of the children dying naturally in these circumstances was one in 73 million. [20] On appeal, Sally’s defence, consisting of two expert statisticians wrote report exposing the prosecutor’s fallacy, the court dismissed the appeal, on the bases of Sir Roy Meadow’s opinion. On a second appeal, based on newly discovered evidence of infection that the pathologist had failed to disclose, the court exonerates Sally Clark. This led to a public campaign over the ‘crude aphorism’ of top paediatrician Professor Sir Roy Meadow, the unreliability of his technique to set up a criminal cases review commission to undertake similar outcomes of cases involving parental murder of a child, based on this kind of testimony. In the subsequent case, Angela Cannings, facts similar to Sally’s case. The new discovered evidence pointed to the genetic cause of deaths. The only evidence relied on by the prosecution was that ( there was no evidence of ill treatment, nor there was any sign of injury on the bodies ) and on the basis of the expert opinion, that the mere fact that two or more un explained infant death had occurred in the family was sufficient ‘prove’ that the death were not from natural causes and that murder had been committed. As Judge LJ declared: "in cases like the present, if the outcome of the trial depends exclusively or almost exclusively on a serious disagreement between distinguished and reputable experts , it will often be unwise, and therefore unsafe to proceed’ [21] .
These cases above exemplifies how the courts could be receptive and dogmatic in their approach of challenging or evaluating scientific evidence in adversarial trials. The statement by Judge LJ, represent the issues that arise when the court is confronted with an apparent trend at the fields of evidentiary standards for expert admissibility. The effectiveness of cross – examination is an issue, in reality, non – scientific participants in an adversarial trial who are expected to cross – examine experts are often at a disadvantage in that they do not possess sufficient in – depth knowledge of the specific field of expertise to enable them cross – examine the witness. This related problem was mentioned in ( para.2.8 ) of the Law Commission Consultation Paper No.190, which it highlighted the non – specialist individuals insufficient understanding of the limitations of scientific evidence, scientific evidence in particular. It was stated that, evidence presented as "scientific" ‘ juries may find it difficult to understand or follow cross- examination aimed at revealing flaws in scientific methodology, a problem which is likely to be more acute if the evidence is complex’.
At the same time, in Regina v Adams [ 1996 ] 2 Cr App R 467, a rape case where the Crown relied on DNA evidence which was used to convict the defendant of rape. The trial judge had allowed the defence to employ an expert who explained Bayes theorem to the lay jurors in order to assist them in evaluating the DNA evidence. This was a typical case of ‘scientific jargons’ where the courts recognised the overwhelming importance of forensic evidence and the difficulties inherent in explaining to juries the significance of such forensic evidence placed before the court that they have to worry about the possibility that a technical method of analysing the Bayesian theory would usurp the judge and the jury’s responsibility to decide the "ultimate issue" of guilt or innocence. Thus, the two Adams appeal court decisions, branded the Bayesian approach as an ‘individualistic’, ‘reductive’ ‘calculus’ that creates a false or in theory confusing appearance of objectivity when applied to non – scientific evidence. [22] The decision in Adam’s is seen as a demarcation and assertion between the "scientific" and "common sense" evidence, necessary to preserve the jury’s role as a trier of fact. [23] Indeed, Lord Justice Rose took the opportunity to state the Court stance on Bayes theorem by suggesting that:
"Bayes theorem is not appropriate for use in jury trials, or as a means to assist the jury in their task… The theorem’s methodology requires that items of evidence be accessed separately according to their bearing on the accused’s guilt, before being combined in the overall formula. That is far too rigid an approach to evidence of the type that jury characteristically has to assess"..
While admitting that there is no scientific dispute about the legitimacy of the general principles underlying the DNA evidence, the question still remains on its applicability in adversarial trials, the most difficult for the courts, and those that have generated the most disagree ment within the scientific community, involved statistics. One counter – argument to the use of statistical evidence in court rely on the risk of error. [24] According to Thompson and Schumann’s first study found that statistical evidence may endanger partiality depending on the format; that is, the conclusion drawn from equivalent numerical information would favour either the prosecution or the defence. [25] It has been suggested that statistical data presented in either conditional probabilities or as simple numbers may led to interpretations favouring the prosecution while simple numbers led to interpretations favouring the defence. The statistical data once combined may form bias opinion, which is clearly misguided and fundamentally flawed and therefore labelled the prosecutor’s "fallacy".
This in turn raises the questions as to the reasons why the admissibility of expert forensic and opinion evidence has proved to be so questionable. As a result of the concerns raised in the field of the administration of criminal justice this provoked a response of the Law Reform Commission of England and Wales [26] that there should be a statutory provision along the following lines of opinion evidence ( para.6:10 ) and scientific expert evidence ( para.6:26 ).
The report of the Law Commission made some recommendations on the above mentioned paragraphs, however, only a brief discussions of these proposals will be considered below.
Indeed, scientific evidence compares well against the known vulnerability of confessions and other rule of evidence in a criminal trial
The law of evidence is concerned to regulate what evidence may be admitted at trial, and under what conditions such admissible proofs are to be admitted. Before it can be admitted, evidence has to clear two hurdles. The foundational requirement is that evidence can only be admitted if it is relevant. From the outset, it is therefore necessary to have an understanding of what the law means by ‘relevant’. However, even if legally relevant, the admission of evidence at trial may still be problematic.
Who are Experts
Permitting experts to testify beyond the bounds of their expertise – a frequent occurrence in criminal trials only make matters even worse.[ ]
For courts seeking certainty to justify their determinations, it is very frustrating to hear that the hypothesis can only be empirically tested, it can never be proven true. Unfortunately, however, there is no method of discovering the absolute truth in science. Indeed, there is no method of ascertaining whether a hypothesis is even probable. The most that can be asked is that the theory be consistent internally, consistent with other theories that have withstood repeated critique, and consistent with the data. In other words, what science offer is not the truth, nor certainty, but explanation.pp.54

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