CATEGORIA DESCRIPCIÒN ANALISIS OBSERVACIONES

The data reflected hesitancy by many defence lawyers to engage with State forensic experts. For some this was a tactical decision. This decision was made despite knowing that these experts are available to them. Even judges suggested that talking to opposing parties’ experts might be inadvisable as potentially alerting the opponent to the defence approach to the case (although as the following quotation from the focus group with judges shows, there were conflicting judicial views in this regard):

P3: I’m not sure that that will necessarily make it [DNA evidence] clearer; it will only telegraph your punches.

P4: Very likely, but telegraphing your punches is not a reason for excluding that sort of approach. P2: In civil cases I agree with you but I don't think it would work in a criminal case.88

The negative view of communicating with the opposing party’s expert witness was echoed in the following comment of L30:

Well we generally don’t try because what’s the point in talking to the expert on the prosecution side because you’re going to flag the issues that you want to raise and you might not want to flag those in advance.89

The hesitancy to provide information to the prosecution about the defence case is illustrated by the following statement of L35: ‘It is an adversary [system] and so ... I would be very careful, very, very careful about playing my hand.’90

For lawyers, ‘displaying their hand’ is seen as undesirable because in the adversarial system, one side is pitted against the other. These quotes demonstrate how the adversarial system itself influences

87 _{For a discussion of the human rights framework (and ultimately the fairness of the trial itself): see 3.4.} 88 _{Focus group with P2, P3 and P4 (3 May 2011).}

89 _{Interview with L30 (20 June 2011).}

90 _{Interview with L35 (28 July 2011). This is echoed in the statement of L11 (24 June 2011): ‘it’s [a] practical} reality. It takes a very long time to get to trial. Asking too many questions in the early stages can be tactically not in the interests of your client, if you tip off the other side, so to speak … So if you leave it to the end of the day, it’s too late to fix up mistakes ...’

defence lawyers’ approach to obtaining information from probably the most prominent source of DNA expertise, state forensic analysists.

Although many lawyers acknowledged that there is no property in an expert, very few defence lawyers approached forensic experts employed by the State. However, conflicting attitudes to this matter were evident. Some defence counsel signalled the need for care while recognising the benefit to be obtained from communicating with Crown experts. The following statement is from one such lawyer:

Well, there’s no property in an expert. There’s no property in a witness but you have to be careful obviously, but with an expert witness far from it. A number of times I’ve had experts who have been helpful to me.91

This interviewee further noted that not only does his understanding improve when he speaks to prosecution DNA experts, but that also he is often surprised with the level of assistance he might receive.

Some participants, when discussing communication between expert witnesses and opposing counsel, pointed to a distinction between pathologists and forensic scientists. L12, for example, said that pathologists as a profession are open to having defence counsel contact them to ask about the evidence and any test results but that the same culture of accessibility and openness is not as prominent in forensic science laboratories.

You can ring up a pathologist and say I read your report and what did you mean by this and couldn’t there be another explanation and they’ll generally talk and discuss. That culture of accessibility and openness isn’t as prominent at the forensic science laboratory, and it never has been, so that’s a difficulty.92

This culture of lack of accessibility may make it more difficult for lawyers to ask the questions that competent lawyers need to ask of DNA experts. Moreover, these are the questions that forensic scientists say lawyers need to ask in order to present the evidence adequately.

Clearly, it is not simply that lawyers have difficulty gaining access to experts or that they find it difficult to communicate with experts in their scientific language.93 _{Tactical considerations involved in defence} counsels’ decisions not to communicate with prosecution experts pose significant challenges for those seeking to improve their knowledge of DNA evidence both generally and in specific cases with a view

91 _{Interview with L4 (25 October 2011).} 92 _{Interview with L12 (8 September 2011).}

93 _{The difficulty that some lawyers have with communicating DNA evidence and communicating with forensic} scientists is discussed at Chapter 6.5.

to preventing further miscarriages of justice. Considerations arising from, and embedded in, the criminal justice system are particularly difficult to counter.

Prosecution and defence considerations

While the adversarial system and fair trial principles are premised upon the equality of the adversaries, in reality that equality does not exist. The greatest force of arms lies firmly with the State. This has implications for defence lawyers’ ability to discharge their responsibilities with respect to both eliciting and challenging DNA evidence. It is important that this tension between prosecution and defence be understood because of its potential to inhibit defendants’ equal access to justice. In the context of DNA evidence, the unequal positions of defence and prosecution counsel emerges particularly in their differential access to DNA expert witnesses. It also has the potential to generate different levels of competence in dealing with DNA evidence between defence and prosecution counsel. However, counter-intuitively, the data suggest that defence counsel display greater competence in handling DNA evidence than prosecution counsel. Nevertheless, interviewees still felt that there was room for improvement by both prosecution and defence lawyers. The discussion here focuses on these matters. Availability of adequate time and funding also differs for defence and prosecution counsel. Both are matters likely to affect their ability to manage DNA evidence effectively.