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Although many lawyers claimed to understand the basic science behind DNA evidence, very few knew how to identify errors in laboratory testing or the collection of DNA evidence at a crime scene or police station. Lawyers had a common difficulty in finding out how to ensure DNA evidence is reliable.

71 _{Interview with L18 (26 October 2011).} 72 _{Interview with L20 (25 July 2011).}

73 _{R v Meyboom [2011] ACTSC 13. A discussion of this case and the legal implications of Higgins CJ’s judgment} may be found in Chapter 2.3 at 27-28, but Higgins CJ essentially found that if there are a number of mixed profiles taken from a sample and few people can be excluded because of that, then the probative value of the evidence decreases.

Many compared their practices in dealing with these difficulties to a ‘fishing exercise’, sometimes undertaken ‘in the forlorn hope that something odd might emerge ... potentially days of exploration in this forlorn hope.'74_{Some felt defeated by these difficulties. So, for example, even a fishing exercise} was not something that L12 felt capable of performing. He stated that it was hopeless to expect lawyers to uncover forensic errors given that in Chamberlain75_{there were very senior lawyers, some} of whom were QCs who, despite their forensic endeavours did not uncover the failures to supervise the scientific ‘experts’ or maintain proper records. The failure to uncover errors in Chamberlain

occurred from the first trial all the way through to the High Court appeal. This led L12 to conclude that ‘the trial process has not been very successful in unmasking these sorts of problems, in Australia at least, or in England.’76

Difficulties in detecting deficiencies in the evidence from scientific reports

Inevitably, an element of trust is extended to experts — their qualifications and the tests that they conduct on DNA evidence. The lawyers interviewed felt that it is too difficult, if not impossible for lawyers to detect issues from a forensic report:

Particularly cross contamination and transference, and a lawyer won’t be able to read that in the subpoenaed notes. You have to think a little bit creatively about whether that’s possible or not and it’s difficult and I don’t know how it is you’re supposed to raise the possibility of something which may or may not happen.77

Lawyers were open to analysing the forensic reports but if there were errors at the crime scene or in the laboratory then the information presented in the reports is unlikely to indicate those possibilities.78 The following statement by L32 illustrates lawyers’ difficulties in probing into or questioning the results given in forensic reports:

For lawyers, there’s a report that says X and they’ve got no idea [about] the process by which X is achieved. So, you can’t do anything except say okay then. It’s like, maybe a lot of this electronic stuff, I have no idea how or why, so all I can do is just say ‘Oh okay’.79

The NAS and Vincent reports recommend ongoing legal and scientific education to improve lawyers’ knowledge of DNA evidence with the aim of improving their ability to detect errors in this evidence.

74 _{Interview with L12 (8 September 2011).}

75 _{Chamberlain v The Queen(No 2) (1984) 153 CLR 521.} 76 _{Interview with L12 (8 September 2011).}

77 _{Interview with L18 (26 October 2011).} 78 _{Interview with L30 (20 June 2011).} 79 _{Interview with L32 (22 June 2011).}

If, however, the information needed to make an adequate assessment of the evidence or the scientific procedure involved is not provided in forensic reports, then a lawyer’s task in this regard may be insurmountable or, at least, appear to be so.

If lawyers feel uneasy about, or incompetent in, uncovering errors then they are less likely to challenge DNA evidence or even investigate its authenticity. This is clearly problematic when there is a risk of wrongful conviction because of reliance on flawed DNA evidence. It may not be possible for lawyers to detect potential weaknesses in DNA evidence from the information provided in forensic reports alone. This difficulty may partly be overcome by increasing the communication between lawyers and experts. Lawyers do not need to rely solely on forensic reports to interpret or understand the evidence. They can obtain assistance from scientific experts. However, self-imposed barriers may prevent lawyers from seeking such assistance as, for example, where they choose not to engage with scientists for tactical reasons (discussed above in Chapter 580_{). This approach will deprive lawyers of a} potential source of information that they may need in order to uncover possible sources of error in the collection and analysis of DNA evidence.

Crime scene investigators constitute another possible source of relevant information. Lawyers might question the experts and/or investigating officers to determine whether there is the risk of error. To do so effectively, of course, they must have a sound working knowledge of the best practices that apply to the collection, storage and analysis of DNA evidence. This will ensure that they can ask appropriate questions about what has occurred in individual cases and then usefully assess the implications for the reliability of DNA evidence of the answers they receive. The possibility for lawyers to gain access to files compiled during the course of investigation and analysis is considered at 5.3.2.81