The communication of DNA evidence to lawyers, to fact finders and the court generally occurs in the form of a written forensic report. This is prepared by forensic biologists in the laboratory where the testing and analysis has taken place and is often given to lawyers in a truncated and summarised form.131 Lawyers participating in the study expressed difficulty with forensic reports for two main reasons — the language and expression used and the level of detail in the information provided.
Language and expression
They use a different language, if you don’t understand the language and you don’t understand what you’re looking for its meaningless.132
Lawyers’ difficulties with the scientific expression of DNA results is explored in detail at 6.2 above.133 The language used by forensic biologists in their written reports received mixed reviews from the lawyers interviewed. There have been concerted attempts to simplify the scientific language used so that the results of DNA tests are delivered in the most comprehensible manner possible.134 Lawyers gave different reasons for the difficulties they experience with the language and expression used in forensic reports. One lawyer said that the last DNA report he had seen contained over 10 pages of dense scientific material. This had the effect of both lawyers and jurors having their ‘eyes glaze over one tenth of the way into the report.’135 Other lawyers said that the reports have improved in their use of plain English and because they now include an Appendix, which further explains their findings and the terms used.136 Nevertheless, as noted above at 6.2, there are many lawyers who struggle with the presentation of the probability ratio, in terms of both the use of large numbers and the language used to present the results.
131 Focus group with FS1–FS4 (4 June 2011). 132 Interview with L14 (28 July 2011). 133 See p 145.
134 Focus group with FS15–FS20 (25 October 2011). 135 Interview with L15 (7 September 2011).
Level of detail
To make the reports easier to understand many laboratories have reduced their level of detail, simplified the language used and summarise their findings for ease of use by lawyers and the courts.137 While this has made it easier to find the final probability ratio for that report, it has meant that lawyers still have little information available to them on the procedures and analysis techniques utilised and the limitations of the results themselves. One lawyer compared DNA forensic reports with those used in civil trials and argued that if reports like the forensic biology DNA results were used in civil trials ‘judges would laugh at them because they don’t have any of the findings and all the background work. It just says “a hit was made” and that’s the probability.’138 The data from the present study show apparently contradictory responses from lawyers to forensic DNA reports, with some lawyers having trouble with the length and detail of the reports, and others criticising the lack of detail and information in them. There was no single accepted view of the desirable level of detail and language that should be used by forensic scientists in their reports.
The lack of detail in the reports — or the absence of detail that would enable a lawyer to discern possible contamination issues, is best illustrated by the comment of a prosecutor:
The reports are useful enough for the purpose of presenting the evidence in court and there’s not much more than that. But what I’m suggesting is what’s behind the report is not transparent — it’s just not there. How can I possibly spot contamination if it’s present then?139
The opinions expressed by lawyers in the present study concerning their difficulty in understanding the language, expression and presentation of information in forensic reports accords with the research of Howes et al.140 These researchers recommended that information contained in forensic reports be simplified to make it more comprehensible to end users of the reports, namely the courts.141 This recommendation draws on principles of content and sequence and on language principles.142 Adoption of this recommendation would go some way to ameliorating the concerns of lawyers presented in this thesis. In recognition of this problem Victoria Police have considered the
137 Interview with L17, (27 July 2011); Focus group with FS15–FS20 (25 October 2011). 138 Interview with L5 (26 October 2011).
139 Interview with L34 (6 September 2011).
140 Loene M Howes et al, ‘The Readability of Expert Reports for Non-Scientist Report Users: Reports of DNA
Analysis’ (2014) 237 Forensic Science International 7. 141 Ibid.
142 Ibid. Content, sequence and language principles refer to how written work is presented — specifically in this research, how forensic reports are written.
Victorian Supreme Court Practice Direction on the presentation of expert evidence143 and, as requested by the courts, have recently produced standardised reporting practices across all disciplines.144
Alternative methods of presenting DNA evidence have been discussed by Goodman-Delahunty, Hewson145 and Freckleton and Selby.146 Their work, and the confusion generated by written forensic reports revealed by the present study, suggest that investigation is warranted into a more regular use of non-verbal communication of this information. Non-verbal means of communication including audio and visual PowerPoint presentations were recommended by Goodman-Delahunty and Hewson147 and by the courts in the cases of Pantoja148and Green.149