6. Análisis Legal
6.1.2 Términos y condiciones
The role that forensic scientists play in the adversarial criminal justice system is a matter of debate among forensic scientists. It is important to define this role both generally and specifically in relation
50 See discussion of the opinion rule at 3.5.1 below.
51 Australian jurisdictions with uniform evidence legislation include: Victoria, the ACT, Norfolk Island, NSW, the Northern Territory (NT) and Tasmania.
52 By comparison, the United States, a common law jurisdiction, has what are known as ‘Daubert rules’ that require that scientific evidence should be based on established scientific principles and methods, validated and, preferably, published so that they can be scrutinised by other members of the scientific community. 53 See, for example, s 79 of the Evidence Act 1995 (Cth):
79. Exception: opinion based on specialised knowledge
(1) If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
54 Cobb, above n 2, 9. 55 Margot, above n 5, 101.
56 James Robertson, ‘Forensic Science – a True Profession?’ (2011) 43(2–3) Australian Journal of Forensic
to DNA evidence, because this may have implications for their relationship with lawyers, the difficulties lawyers encounter in identifying the weaknesses and/or limitations of DNA evidence, the barriers and challenges facing lawyers in obtaining information about DNA evidence and the investigations that defence counsel conduct in relation to DNA evidence both pre-trial and at trial.
Margot argues that forensic scientists should become part of the investigative process — attending crime scenes and making decisions about the information collected based on investigative information and any other information that is relevant to the specific case.57 He suggests that forensic scientists operate within the legal investigation, not outside of it and that they can play an important role in aiding the selection of ‘traces’ at a crime scene, thus determining what may later become evidence in a court of law. Margot's view supports the proposition that forensic scientists can become involved in legal investigations, because their knowledge of traces assists in the collection of forensic evidence on a case-by-case basis. This conception of the role of forensic scientists accords them a significant involvement in the investigative process and treats forensic science as a science that necessarily applies in legal situations, rather than as an unaffiliated, independent scientific field.
However, should forensic scientists become involved in the investigative process or work from a basis of knowledge about investigative facts, there may be a danger that bias will be introduced into their analyses and findings. Actual and perceived bias is one of the most significant concerns for forensic scientists.58 For this reason, Mnookin et al59 do not view the role of the forensic scientist as being that of a criminal investigator. Instead they believe that they need to know the basics of the scientifically relevant details, like the surface from which a fingerprint was lifted, but that they should not know about such things as a suspect’s confession or previous convictions for serious crimes.60
Sequential unmasking is the process by which a forensic scientist interprets each item of evidence independently of other items of evidence or reference samples in a bid to reduce or eliminate contextual bias and other observer effects.61 Sequential unmasking creates protocols that aim to
57 Margot, above n 5, 92.
58 For example, see Itiel E Dror and Simon A Cole, ‘The Vision in “Blind Justice”: Expert Perception, Judgment
and Visual Cognition in Forensic Pattern Recognition’ (2010) 17(2) Psychonomic Bulletin & Review 161; Bryan Found, ‘Deciphering The Human Condition: The Rise of Cognitive Forensics’ (2015) 47(4) Australian Journal of Forensic Sciences 386.
59 Jennifer L Mnookin et al, ‘The Need for a Research Culture in the Forensic Sciences’ (2011) 58 University of
California Los Angeles Law Review 725. 60 Ibid 770.
61 Dan E Krane et al, ‘Sequential Unmasking: A Means of Minimizing Observer Effects in Forensic DNA
Interpretation’ (2008) 53 Journal of Forensic Science 1006. For further and more recent discussion of contextual bias research in the forensic sciences, see Found, above n 58.
protect examiners from this sort of information, and potentially, from bias.62 Sequential unmasking may prevent bias in forensic scientists — both conscious and unconscious — but it limits the role of the forensic scientist to the scientific element of their work and excludes the possibility of their adopting an investigative role of the kind suggested by Margot.
Forensic scientists and police officers63 are responsible for collecting and interpreting traces. Those traces often become the bases for evidence in legal trials and therefore having access to forensic scientists pre-trial, and an ability to communicate with them during a trial, is important as an expert witness. Lawyers may need to investigate the integrity of forensic reports and the veracity of forensic investigations in the period leading up to a trial in court. Both these propositions have implications for the examination-in-chief and cross examination of a forensic scientist as an expert witness. If lawyers do not communicate with expert witnesses or are tactical in how and when they communicate with them, a defendant may not be receiving the fairest trial in the circumstances presented.
The adversarial system
The lawyer is active, the judge passive. The lawyer partisan, the judge neutral. The lawyer imaginative, the judge reflective.64
Because the focus of this research is the experience of lawyers, the system within which lawyers introduce evidence to courts must be explored. As a common law country, Australia has an adversarial criminal trial system. Within this system, the judge’s role is that of an impartial, independent arbiter, who determines questions of law that govern the proceedings, including issues relating to the admissibility of evidence. Juries or, in cases involving less serious, generally non-indictable offences, judicial officers, determine the outcome of disputes based on information presented by the parties themselves, and/or their lawyers. Because the trial process is governed by rules of evidence and procedure, court procedure generally guarantees a role for lawyers in the adversarial process.65 To determine the fundamental role of lawyers in adversarial systems it is important to ask whose interests do lawyers serve and whose values do they represent?66
62 Krane et al, above n 61. 63 Particularly for volume crimes.
64 Justice Peck, describing a view with which he disagrees, cited in M Frankel, ‘The Search for Truth: An Umpireal
View’ (1975) 123 University of Pennsylvania Law Review 1031, 1035.
65 Stephen Bottomley and Simon Bronitt, Law in Context (Federation Press, 3rd ed, 2006).
66 Roy Simon, Carol Needham and Burnele Powell, Lawyers and the Legal Profession: Cases and Materials (Matthew Bender and Company, 4th ed, 2009) 183. The role of lawyers in the adversarial system is discussed at 3.3.
Under an adversarial system, the parties (and their lawyers) are responsible for defining the issues in question and for initiating dispute resolution.67 The system presupposes two advocates representing their parties' cases before an impartial adjudicator — either a judicial officer of some form alone or combined with a jury of the parties’ peers. The adversarial system not only takes the fact of disagreement between parties into account, but relies on it, and any final judgment of a court will be informed by contrasting points of view. The role of lawyers in the adversarial system is to present these contrasting points of view in the interests of their clients. Accordingly, the adversarial system serves the public interest of achieving justice in a unique way while ensuring individuals can present their cases and be represented.
This contrasts with the inquisitorial system, where the judge or a panel of judges is solely responsible for conducting legal enquiries. Lawyers play a more passive role — suggesting questions to the presiding judge and often following the judges’ questioning of the evidence and witnesses with questions of their own.68
On the traditional role of the non-interventionist judge in the adversarial system, Lord Denning asserts that:
In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries. Even in England, however, a judge is not a mere umpire to answer the question “How’s that?” His object, above all is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and necessary role.69
Although Lord Denning saw the judge’s role as ‘finding out the truth’, the High Court of Australia in
Whitehorn v The Queen stated:
A trial does not involve the pursuit of truth by any means. The adversary system is the means adopted and the judge’s role in that system is to hold the balance between the contending parties without himself taking part in their disputations. It is not an inquisitorial role in which he seeks to remedy the deficiencies in the case on either side. When a party’s case is deficient, the ordinary
67 Australian Law Reform Commission (ALRC), Review of Adversarial System of Litigation, Issues Paper No 25, <https://www.alrc.gov.au/sites/default/files/pdfs/publications/DP62.pdf> 27 [2.25].
68 For a comprehensive discussion of the role defense lawyers play in evaluating forensic DNA evidence in both the Swiss and American context, see Vuille, Joelle and W. C. Thompson, ‘An American Advantage? How American and Swiss Criminal Defense Attorneys Evaluate Forensic DNA Evidence’ (2016) 14 International Commentary on Evidence 142
consequence is that it does not succeed. If a prosecution does succeed at trial when it ought not to and there is a miscarriage of justice as a result, that is a matter to be corrected on appeal. It is no part of the function of the trial judge to prevent it by donning the mantle of prosecution or defence counsel.70
Lawyers play a pivotal role in adversarial criminal proceedings and while lawyers for both the defence and the prosecution owe their primary duty to the administration of justice, their respective roles thereafter differ slightly. Defence counsel must represent the interests of their clients to the best of their ability. Prosecution counsel, in contrast, must act as so-called ‘ministers of justice’ and be advocates for the truth. Lawyers have the onerous tasks of, on the one hand, adducing sufficient evidence to establish the case they allege to the requisite standard and, on the other, of challenging the cogency and sufficiency of opponents’ evidence to undermine their case.71 Reinhardt and de Fina argue that the lack of training in anything other than a traditional adversarial, court-based system of law encourages a ‘mindset or culture amongst practitioners’ that is not focusing solely on justice.72 The adversarial system can create conventions and tensions that sit in opposition to the need for lawyers to gain information from expert sources and to communicate with experts. These are discussed in detail in Chapter 5.73
The human rights framework
The adversarial system can only conform to fair trial principles if the opposing adversaries are equally matched. This is problematic because one of the contestants, the prosecution, is funded and armed by the State. Therefore, prosecution counsel is likely, in most cases, to have a superior armoury of proof at their disposal when compared to that of the defence. This problem achieves recognition in fair trial principles relating to equality of arms and the role and duties of the prosecutor in criminal proceedings, which seek to ameliorate defendants’ unequal position.
It is necessary to consider the human rights framework of criminal trials in this research because fair trial and equality before the law principles underpin both the investigative and adjudicative stages of the criminal justice system. Clearly, therefore, these rights must frame investigative, forensic and legal approaches to how DNA evidence is, and should be, dealt with. It is beyond the scope of the thesis to
70 R v Whitehorn (1983) 49 ALR 448, 467, cited with approval by the Full Bench of the High Court in R v
Apostelides (1984) 53 ALR 445.
71 Bottomley and Bronitt, above n 65, 119.
72 G Reinhart and Y de Fina cited in Chapter 4 of Charles Sampford, Sophie Blencowe, Suzanne Condlln (eds),
Educating Lawyers for a Less Adversarial System (Federation Press, 1999) 48. 73 See discussion at 5.7 and 5.8 specifically.
consider fair trial principles in detail. The purpose of the discussion here is to indicate the significance of those principles for the way that lawyers manage DNA evidence in criminal trials.
The two human rights of most relevance to the subject matter of this research are the right to a fair trial and the right to equality before the law. The right to a fair trial is a fundamental human right established at common law and in international and Australian human rights instruments. Although the common law recognises the right to a fair trial, it has never defined the elements of fair trials, whereas human rights instruments74 list the minimum requirements for a fair trial. In 1923 Isaac J referred to this right at common law as the ‘elementary right of every accused person to a fair and impartial’ hearing75 and Deane J in Dietrich v The Queen 76echoed these sentiments in the High Court in 1992, reiterating that ‘Isaacs J.’s statement that the requirement that the trial of an accused person be “fair and impartial” is “deeply rooted in our system of law” was not the stuff of empty rhetoric. It remains an accurate statement of the common law of this country.’ Reference to this ‘right’ in the common law is often made with a focus on what is not acceptable, whereas human rights instruments tend to outline what must be done for an accused person to receive a fair trial. Mason CJ and McHugh J articulate the former approach in Dietrich v The Queen77 — ‘the accused’s right to a fair trial is more accurately expressed in negative terms as a right not to be tried unfairly.’ In contrast, human rights instruments78 list the minimum requirements for fair trials — a more prescriptive approach that a defendant may refer to as determinative of fair trial principles.79
The right to a fair trial consists of a bundle of rights including that all persons are equal before courts and tribunals; the right to a fair and public hearing before a competent, independent and impartial court or tribunal established by law; the presumption of innocence and minimum guarantees in criminal proceedings, such as the right to counsel and not to be compelled to self-incriminate.80
Additionally, the right to equality before the law in the context of criminal trials may operate concomitantly with the right to a fair trial and buttress and provide content to a number of the elements of the right to a fair trial. So, for example, the fair trial right to have adequate time and
74 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 14 (‘ICCPR’); Human Rights Act 2004 (ACT), Charter of Human Rights and Responsibilities Act 2006 (Vic).
75 R v MacFarlane; Ex parte O’Flanaghan and O’Kelly (1923) 32 CLR 518, 541–542. 76 Dietrich v The Queen (1992) 177 CLR 292, 326.
77 Ibid [8].
78 The two Australian states with this legislation are currently Victoria and the ACT: see Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic).
79 Jeremy Gans et al, Criminal Process and Human Rights (Federation Press, 2011). 80 See ICCPR art 14.
facilities to prepare a defence81 is supplemented by equality of arms principles, including the right to disclosure, derived largely from the right to equality before the law.82
When lawyers present prosecution and defence cases in criminal matters involving DNA evidence, they must ensure that an accused receives a fair trial. How they conduct trials and handle evidence in each matter is then relevant to whether an accused receives a fair trial in terms of both the common law and relevant human rights instruments. Lawyers’ management and use of any form of evidence, including DNA evidence, may arguably influence their ability to ensure a fair trial has been achieved.
This research explores whether a lawyer’s level of knowledge or understanding of DNA evidence, influences the risk of an unfair trial for a defendant. Accordingly, the broader concept of a ‘fair trial’ as established by the common law and human rights instruments is explored and the role of counsel in achieving this goal is considered. It is not intended here to provide a comprehensive analysis of the right to a fair trial but rather to explore those aspects of the right to a fair trial and the right to equality before the law that are of relevance to the research questions explored in this research.
Although the fair trial principle is claimed to be fundamental and universal — a basic human right protected by international law — its scope and effect are legally limited in several ways.83 This is explored further in sections [3.4.1]–[3.4.4].