Scientific Evidence in Criminal Adjudication Research Paper

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The different functions of science and law have long led to tensions between methods of investigation deployed within the sciences and the various methods of legal fact-finding that are deployed for determining legal disputes. These tensions become particularly acute in relation to scientific evidence in criminal adjudication. On the one hand, the courts have become increasingly reliant on scientific evidence; on the other hand, they cannot for the sake of their own legitimacy be seen to hand over the evaluation of such evidence entirely to scientists. The traditional “adversarial” and “inquisitorial” models of adjudication have each adopted different approaches towards the gathering and evaluation of scientific evidence which have come under critical scrutiny. The use of scientific evidence in “adversarial” systems would seem to have been particularly susceptible to miscarriages of justice while its use in “inquisitorial” systems has led to human rights violations. Against this background, it may be suggested that one way forward is to realign existing procedures in the direction of a participative model of criminal adjudication whereby both parties and adjudicators play a role in ensuring that scientific evidence is effectively prepared, presented, and tested.

Scientific Evidence In Criminal Adjudication

The growth in the use of expert or scientific evidence in legal disputes poses challenges to the traditional manner in which legal claims have been resolved. It is noteworthy how many issues of fact are increasingly coming within the domain of expert or scientific evidence (Redmayne 2001). This “creeping scientization of factual inquiry” (Damasˇka 1997: 143) has arisen as a result of science’s ability to generate knowledge by means of sophisticated technical instruments well beyond the knowledge of laypersons. Equally significant has been the growth in the sciences of the mind which has led to the recognition of new forms of psychological evidence such as post-traumatic stress disorder, battered woman’s syndrome, and recovered memory syndrome. Even the task of assessing the credibility of witnesses which has long been considered best left to the common sense of the lay judge or jury has been challenged by the growth of experts willing to testify on witness credibility and by such “scientific” techniques as polygraph evidence.

This increasing intrusion of scientific evidence into both civil and criminal adjudication can conjure up a somewhat apocalyptic vision of legal fact-finding processes being replaced altogether by scientists and experts. There are certainly instances where challenges have been made. Challenges to the traditional common law methods of eliciting testimony by means of examination and cross-examination were to be seen in the work of early twentieth century experimental psychologists (see Muensterberg 1908). Although, more recently, legal systems have refined their approaches towards certain kinds of witness testimony, such as the evidence of children and other vulnerable witnesses, behavioral science challenges have not prompted any fundamental review of legal procedures (Greer 1971). Indeed the need for testimony to be tested orally by means of cross-examination would seem to have gained rather than diminished in importance in criminal adjudication, not only in common law processes but in civil law processes as well – partly as a result of the human rights fairness requirement that everyone charged with a criminal offense has the right “to examine or have examined witnesses against him” (see Art. 14(2)(f) of the International Covenant on Civil and Political Rights, Art. 6(3)(d) of the European Convention on Human Rights).

This illustrates that scientific procedures or “scientific method” can never dictate how fact-finding should be conducted in the course of criminal adjudication, even though the same processes of inductive reasoning may be used to reach conclusions in both domains (Twining 1982; Jackson 1988). However dependent legal processes become on scientific evidence, fundamental differences between the scientific enterprise (the pursuit of truth) and the legal enterprise (the resolution of disputes through justice) mean that different methods are required to produce the desired results in each field, scientific discoveries, or legal verdicts. It is in the nature of the scientific endeavor constantly to seek better evidence, to be prepared to revise even the most entrenched claim in the face of unfavorable evidence (Haack 2004; and for the different values within science and law see Schuck 1993 and Goldberg 1994). This spirit of inquiry is incompatible with the constraints of legal inquiry where decisions have to be reached in the interest of finality (Redmayne 1997; Jackson 2004). As a former English Law Lord, Lord Scarman, once said, Justice cannot wait upon the truth; as the famous legal maxim goes, “justice delayed is justice denied.”

This means that legal procedures cannot simply replicate scientific modes of inquiry. Irrespective of the accuracy of legal procedures, errors will inevitably occur and political decisions which may be highly contestable need to be reached as to how the risk of errors should be distributed. In criminal adjudication there is a consensus across the common law and civil law traditions that proof of guilt must be established beyond reasonable doubt (in dubio pro reo, as the principle is known in continental jurisdictions) which reflects a bias in favor of false negatives (acquittals of the guilty) over false positives (convictions of the innocent), although there are differences across the traditions as to how formidable the evidentiary barriers should be for prosecutors seeking to establish guilt (Damasˇka 1973). The need for finality, which can have profound consequences for those who are found guilty, correspondingly engenders expectations of fair and transparent procedures allowing defendants to contest the charges against them in an open forum and requiring that decisions are fully justified by an independent and impartial tribunal. Because of the “tragic choice” inherent in legal proceedings, whereby decisions need to be sufficiently appeal-proof even when they may be wrong in order to withstand continuing uncertainty (Nobles and Schiff 2000), the process of reaching decisions becomes a vital legitimizing tool in determining their social acceptability.

Although different models of criminal adjudication have developed across legal systems expressing varying societal conceptions of adequate proof, there is a consensus across western countries that they must not only provide for accurate procedures but must also secure public acceptability through fair and open procedures.

The ambivalent attitudes that continue to be displayed towards science and technology suggest that it will be some time before “men and women in white coats” are trusted to replace lay decision-makers in the making of final decisions (Roberts 2008: 324). Scientific evidence needs to be carefully regulated and evaluated so that its probative benefits can be harnessed to assist the lay decision-makers who make final determinations in individual cases.

Adversarial And Inquisitorial Models Of Adjudication

Comparative literature on criminal procedure and evidence has been dominated by a tendency to describe different criminal justice systems as either “adversarial” or “inquisitorial,” with the term “accusatorial” often being used synonymously with “adversarial.” Although these labels have enjoyed long currency, they have tended to be used as caricatures which often obscure rather than enlighten how different legal processes might be best understood. It is misleading, for example, to use the terms “accusatorial” and “adversarial” interchangeably to describe Anglo-American systems of criminal justice as the old accusatory forms of justice (characterized by spitting off the prosecutorial function from the final adjudication) have very little in common with contemporary “adversarial” trials, where accused persons are properly equipped through legal representation to contest the charges against them in an effective manner (Vogler 2005). Similarly, the term “inquisitorial” with its overtones of secret procedures dominated by authoritarian judges is hardly an apt description of the modern systems of justice to be seen on the European continent which replicate many of the “adversarial” features of Anglo-American trials.

Rather than use the terms as abbreviated descriptions of actual procedures, they have more helpfully been used as models to idealize opposing features to be found within the generality of Anglo-American and continental procedures. Although there is some difficulty in determining exactly which features should fit within the respective models, the essence of the contrast between adversarial and inquisitorial models of proof seems to boil down to this. Adversarial proceedings are organized around the notion of a dispute or contest between two sides – prosecution and defense – in a position of theoretical equality before a court which must determine the outcome, whereas inquisitorial procedures adopt the notion of an official and thorough inquiry driven by court officials. Thus, in the “contest” model, the prosecution prepares the case, brings the charge, and is responsible for presenting the evidence and proving the offense. The defendant either pleads guilty or attempts to rebut the charge by presenting evidence and arguments against the prosecution. The proceedings are presided over by a neutral adjudicator whose function is to see that the parties play by the rules of the contest but not to take an active part in the presentation of the evidence. In order to ensure that the parties play fair, there is a complex body of rules ensuring that relevant evidence is disclosed, particularly by the prosecution to the defense, in advance of the trial and that evidence is only admissible at the trial if it has sufficient probative value. In the “inquest” model court officials take center stage in the handling of the evidence. The prosecution may first decide the charge but officials of the court then have the responsibility for gathering, testing, and evaluating the evidence. A case file is built up containing all the documents relating to the proceedings and all the evidence that is gathered. This file can be consulted by the parties, but any role the prosecution and defense play in the proof process is incidental and subordinate to the court’s primary function of finding the truth. The trial that follows the proof-gathering phase is largely based on material already in the file and this phase of the proceedings is also dominated by the court rather than the parties.

Although these models are considered to be a valuable heuristic tool for theorizing about different features of Anglo-American and continental processes of proof, more and more “real life” systems have been moving away from the models’ classic features and (on some accounts) converging towards a “middle position” mixing features of both “adversarial” and “inquisitorial” traditions (Markesinis 1994: 30). For example, in the Swiss system, which is commonly perceived to fall within the inquest model, judicial authorities no longer take center stage in the handling of evidence. In Switzerland the investigating judge is now the prosecutor and, in common with a number of other continental systems, the position of the investigating judge has been abolished altogether. In the pre-trial process the prosecutor arranges confrontation hearings and is responsible for conducting them. There is no impartial third party present – just the prosecution and defense – and the defense has the chance to question the witnesses. Another novel feature in many “inquisitorial” systems is that the prosecution and defense may now reach an agreement over the outcome of the case, with the result that the court no longer plays any meaningful role in fact-finding at all (Weigend 2008). One distinguishing feature of common law systems, by contrast, is that for all the possibilities for plea bargaining, the trial is still generally the only forum where evidence can be effectively challenged by the defense. Within civil law systems, on the other hand, the defense has the opportunity and is expected to challenge evidence before trial in the various pre-trial phases, even though in many instances there may not be a judge present to oversee fairness in the process. This suggests that the contrast between criminal procedure systems is better found at the stage of the process at which “adversarial” evidence-testing takes place, rather than in any fundamental or wholesale difference between “adversarial” and “inquisitorial” proceedings.

For all this, the two models appear to retain some explanatory force if they are broadened out to include different political structures of authority and different legal cultures, for they can then be viewed as two different procedural traditions that have dominated the common law and civil law worlds, respectively, encompassing different normative expressions of how legal proceedings should be organized (Langer 2004; Field 2009). Jurists and practitioners within common law and civil law systems tend to identify strongly with idealized procedural models expressing different values. For example, there is a long-standing tradition of anti-inquisitorialism in American law which has acted as a kind of “negative polestar” for American criminal procedure (Sklansky 2009), while “anti-adversarialism” has tended to dominate debates surrounding many criminal justice reforms in France, such as those strengthening defense rights, the movement towards plea bargaining, and the role and function of the juge d’instruction (Hodgson 2005).

The Role Of Scientific Evidence Within The Adversarial And Inquisitorial Procedural Systems

With the caveat that the adversarial and inquisitorial models may be more useful in reflecting beliefs about how procedural systems should be organized than as descriptions of how they actually are organized, we can begin to detail how scientific evidence is treated within each of the dominant procedural families (see generally Champod and Vuille 2011). Within the adversarial model, experts are employed by the parties in the pre-trial and trial phase of the criminal process and the court does not become involved in the appointment and use of experts except during the sentencing phase when it does make use of experts whom it appoints to assist in determining risk factors relevant to imposing penalties on convicted defendants. Before this phase, the parties employ experts to gather scientific evidence and write reports. If experts give evidence at trial, they are called as party-instructed witnesses.

The principle of party presentation by which parties call “their” own witnesses at trial extends to expert as well as lay witnesses, although no party has any exclusive property right in the evidence or any right to prevent another party from calling any witness (Harmony Shipping Co SA v Saudi Europe Line Limited [1979] 1 WLR 1380). Scientific evidence is tested in the same manner as other evidence is tested, through cross-examination at trial by counsel. Experts are treated like any other witness in this respect. However, expert witnesses are entitled to somewhat more leeway than ordinary witnesses in being allowed to state their opinion on matters within their expertise, and also to give hearsay evidence of scientific knowledge. Expert reports are often admitted as well by way of exception to the hearsay rule.

Although it is open to both sides to appoint experts, in practice defendants who are legally aided have to make a case to the legal aid authorities for scientific assistance. Even when this is forthcoming, defense experts have to overcome the structural and practical disadvantages of arriving late on the scene after prosecution experts have received items for analysis and conducted their tests and they may have to rely heavily on prosecution experts for information (Roberts 2002). Increasingly, prosecution experts are required to disclose all relevant information to the defense, while the defense is usually only obliged to disclose the scientific evidence it intends to adduce at trial.

In contrast with adversarial process, scientific experts in inquisitorial systems are in theory appointed by, and work under the supervision of, an examining judge or the court. They occupy a unique position in the criminal process, as they are neither witnesses nor judges. Increasingly, however, scientific expertise is called into the case by the police or by the prosecutor in cases where investigating judges are not involved. In reality, experts have often reached their conclusions in conjunction with the police investigation before the case reaches a judge (Nijboer 1993). The experts are usually appointed from lists or from accredited laboratories and have a status superior to that of witnesses. When they have completed their research and inquiries, experts submit a written report to the court and may be called to give oral evidence to explain their findings under questioning, which is mainly conducted by the court rather than by the parties, although counsel may be given permission to put questions directly to experts. Although the court must freely evaluate the expert evidence for itself, in practice expert opinions are afforded considerable deference.

The defense has traditionally had a limited input into the forensic process in inquisitorial systems, but the defense role has been expanding in more recent years. Defense lawyers sometimes request that particular questions are put to the expert or that certain tests are carried out (see e.g., Art 165 CPP France, Art 184 CPP Switzerland). They may comment on the expert’s report once it has become part of the case file and they may request the appointment of another expert for a second opinion, although the courts can deny such petitions (see e.g., Art 167 CPP France, Art 244(4) CPP Germany). In certain systems, such as Italy (see Art 230 CPP), the defense may be able to appoint their own experts to work with the official expert but these party experts usually have inferior status to the official expert and permission may have to be sought before they are instructed (Champod and Vuille 2011: 21–22).

Miscarriages Of Justice In Adversarial Systems

Although the use of scientific evidence has the potential to provide a more reliable evidential basis for verdicts than many traditional categories of evidence such as witness testimony and confessions, a litany of miscarriages of justice caused by faulty scientific evidence across a range of different forensic fields has come to light during the last 30 years, especially within the common law world. These have prompted criticism, not only of scientific evidence itself but also of systematic weaknesses in the “adversarial” model of proof. Various cognitive errors can arise when scientific evidence becomes so dependent on the parties (see generally Roberts 2002, Champod and Vuille 2011). First of all, there is the question whether it is wise to permit the parties to choose which experts to bring into the case. As one judgment over a century ago reflected: “A man may go and does sometimes to half a dozen experts … He takes their honest opinions, he finds three in his favour and three against him; he says to the three in his favour will you be kind enough to give evidence? And he pays the three against him their fees and leaves them alone … the result is that the court does not get the assistance from the experts which if they were unbiased and fairly chosen, it would have a right to expect” (Thorn v Worthington Skating Ring Co. LR 6 ChD 414, 416, 1876). Within the criminal process, the parties may not have the luxury of such a wide choice of experts, but this suggests a further problem. The parties need proper resources to be able to employ good experts which may not be available, in particular, to the defense relying on over-stretched legal aid budgets to secure expert evidence.

The traditional way in which adversarial systems have sought to protect themselves from partisan sources of evidence is by developing strict admissibility tests to screen out unreliable evidence and to give each party an opportunity to challenge the sources of evidence presented by their opponent. These approaches, however, have only had limited success in respect of expert evidence. Adversarial systems have developed a number of rules to restrict the admission of expert evidence. English law has traditionally taken a fairly deferential approach towards experts by allowing them to express expert opinions provided the subject matter of the opinion is beyond the knowledge, skill, or experience of the tribunal of fact and the expert has sufficient expertise in the field (Redmayne 2001). Although the position may now be changing, there is no established requirement that any specific threshold be met to ensure the reliability of expert evidence (Dennis 2010: 895). In practice this has meant that if an expert is accredited or has the necessary qualifications, and the subject matter of the expert’s evidence is relevant to the case before the court, his testimony will be admitted (Alldridge 1999).

In 1923 in Frye v US (1923) 293 F.1013 a US federal district court appeared to impose stricter gate-keeping responsibilities on judges when it agreed that the trial court had been correct to exclude a polygraph technique because it had not achieved general acceptance in the relevant scientific community. This seemed to put a reliability threshold on the evidence by deferring to scientific consensus in the relevant field. A majority of courts in the US applied this standard and it appeared to creep into other jurisdictions as well (see, e.g., in Australia R v Bonython (1984) 38 SASR 45, R v Parenzee [2007] SASC 143). The difficulty with this approach was that it led to uneven application in practice. Courts applied varying degrees of rigor to the standard, with little indication as to which facts of the expert testimony had to be generally accepted and how widely or narrowly the relevant scientific community was to be defined (Redmayne 2001: 113; Ligertwood and Edmond 2010: 7.51–2). In Daubert v Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993), the US Supreme Court considered that the Frye test had been superseded by the Federal Rules of Evidence in 1975 which made no mention of the Frye test but implied that a judge had to ensure that any and all scientific testimony or evidence admitted was not only relevant but reliable. Daubert is commonly considered to have replaced the Frye test in the US federal and many state jurisdictions with a reliability test involving consideration of five factors: (1) whether a theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential error rate; (4) the existence and maintenance of standards controlling a technique’s operation; and (5) general acceptance in the scientific community.

The scope and application of the Daubert criteria have been clarified in later Supreme Court decisions. A sixth criterion was added in General Electric Co v Joiner 522 US 136 (1997) which entails examining the extent to which general findings are applicable to the instant case. In Kumho Tire Co. v Carmichael, 526 US 137 (1999) the Supreme Court broadened the applicability of these criteria to all expert evidence including that which is not strictly, or at all, “scientific.” But Daubert remains the leading case and is now applied in federal courts in the US and has been cited with approval in certain other jurisdictions as well. In the UK, for example, the England and Wales Law Commission (2009) has recommended that Daubert-style criteria be introduced into the English courts.

The difficulty with requiring judges to take on an effective gate-keeping role in relation to expert or scientific evidence is that this depends for its success on judges having a sufficient understanding of the science involved. Although the test would seem to put explicit responsibilities on judges to test the validity of scientific evidence, it has been claimed that within the realm of forensic science many courts have continued to admit bite mark analysis, microscopic hair analysis, voiceprint evidence, and handwriting analysis despite the absence of any demonstrable theoretical basis, population databases, standardized methodology, or empirical data on error rates for this kind of evidence (BeecherMonas 2007). A comprehensive report into the state of forensic science in the US concluded from reported opinions in criminal cases that, despite Daubert, trial judges rarely excluded or restricted expert testimony offered by prosecutors and that appellate courts routinely deny appeals contesting trial court decisions admitting scientific evidence against criminal defendants (National Research Council 2009). Judges are not helped in this endeavor by criminal defense lawyers who rarely have any background in relevant scientific expertise, whilst prosecutors have little responsibility in an adversary system to vouch for the reliability of the expertise they place before the court.

The other means of ensuring reliability of evidence in the adversarial system is to permit opposing parties to make an effective challenge to the evidence adduced. But this is only possible where the parties are properly resourced and there is sufficient disclosure of all the relevant evidence in the case. In certain notorious miscarriages of justice in England and Wales arising out of IRA terrorism in the 1970s, scientists failed to disclose important scientific information even to the prosecuting authority. The English Court of Appeal responded by requiring scientists advising the prosecuting authority to disclose material known to them which may have some bearing on the case (see R v Maguire (1992) 94 Cr App R 133). The difficulty is that, in the absence of effective oversight, investigators and forensic scientists are left to discharge these duties themselves and there may be little incentive for them to do so. Even if scientists are sufficiently objective in their approach, they may have received instructions which are incomplete and may not be alerted to all the relevant evidence in the case. When it comes to communicating their results and opinions, the requirement that they submit to examination and cross-examination by the parties means that questioning is focused on one direction or the other and expert witnesses may not be able to give as complete a picture to the court as they would like. The fact that experts are treated as witnesses also means that they are prevented from entering into open dialogue with decision-makers in the case, potentially frustrating the important educative role that experts have to explain their findings to the court (Allen and Miller 1993).

Human Rights Challenges In Inquisitorial Systems

Inquisitorial systems may be thought better able to withstand some of the cognitive weaknesses of adversarial criminal procedure. Under the inquisitorial trial model, scientific investigations are carried out under the supervision of an impartial court thereby facilitating the production of more impartial and reliable reports.

Experts are also able to communicate the results of their findings to the court, whether in reports or by oral evidence, without being hampered by the artificial adversary process of examination and cross-examination. Problems of disclosure between the parties are pre-empted by having a case file made freely available to both the prosecution and the defense. Experts have full opportunity to respond to any issues raised by the parties or to call for a second opinion. Such a procedural model, however, is heavily dependent on the integrity and competence of “impartial” forensic experts. Scientific experts are perceived to be impartial because they act for the court rather than being instructed by adversarial parties, but in practice many experts work exclusively with the prosecuting authorities and this may put the defense at a considerable disadvantage. In some legal systems, such as that of the Netherlands, government forensic institutes are only permitted to investigate cases when requested to do so by the police or justice authorities (Jakobs and Sprangers 2000). If the defense wishes to commission expert evidence, it must usually pay for it and may encounter difficulties recruiting willing and able experts, particularly if it intends to challenge the findings of the experts appointed by the judicial authorities. Even if the defense is able to commission its own expertise, there is no guarantee that the court will afford the same weight to this evidence as to that produced by the official forensic scientists.

In a string of cases arising from inquisitorial systems, the European Court of Human Rights (ECtHR) has ruled that there was a violation of the right to a fair trial on the grounds that the defense had been disadvantaged under the principle of the “equality of arms” which requires that the prosecution and defense are put on an equal procedural footing. In Bonisch v Austria (1987) 9 EHRR 191 the applicant was prosecuted for preparing meat which contained an excessive concentration of benzopyrene on the basis of a report prepared by the Director of the Federal Food Control Institute who was appointed later as an expert by the court. The ECtHR considered that as it was his report that had led to the charges being brought, the Director of the Institute was more likely a witness against the accused than an independent court expert. The principle of equality of arms inherent in the concept of a fair trial required equal treatment as between the hearing of the Director and the hearing of persons who were or could be called in whatever capacity by the defense. Yet since the Director had been heard as an “expert” his statements must have carried greater weight than those of an “expert witness” called by the accused. As a formally recognized expert, the Director had enjoyed a privileged position in being allowed to attend throughout the hearings, put questions to the accused and witnesses with the leave of the court, and comment on their evidence. It followed that there had been a violation of the right to a fair trial (see also Eggertsdottir v Iceland, App. no. 31930/04, 5 July 2007; Stoimenov v Former Yugoslav Republic of Macedonia, App. no. 17995/02, 5 April 2007).

Bonisch is often contrasted with Brandstetter v Austria (1993) 15 EHRR 378, where the expert whom the court appointed was not the person who filed the report leading to the applicant’s prosecution but was employed by the same Institute as the expert who had filed the report. The ECtHR held that, in this case, doubts about the neutrality of the expert could not be objectively justified and the Austrian courts had not breached the principle of equality of arms in refusing the applicant’s request to appoint another expert. A court apparently does not have to appoint further experts at the request of the defense just because the opinion of the court-appointed expert supports the prosecution case. A second expert must be appointed to satisfy the requirements of the right to a fair trial only where there is some objective ground for suggesting that the expert was biased or, alternatively, some external factor suggesting that the expert’s testimony may have had a distorting impact on the tribunal of fact (GB v France ECtHR 2 October 2001).

Apart from falling foul of the requirement of equality of arms, inquisitorial systems have also run up against the European principle of “adversarial procedure.” This does not imply that European systems adopt fully fledged adversarial modes of proof (Jackson 2005). Instead the principle requires that the parties are given the opportunity to have knowledge and comment on the observations filed and the evidence adduced by the other party (Brandstetter v Austria (1993) 15 EHRR 378, Rowe and Davis v UK (2000) 30 EHRR 1, [60]). In Mantovanelli v France (1997) 24 EHRR 370 the ECtHR considered that the principle was violated because the applicants were not informed in advance of the dates on which an expert appointed to report on the circumstances of the death of the applicants’ daughter interviewed witnesses and examined documents. The Court considered that there was no general right to be present during an expert’s investigative activities. What was essential, however, was that the parties should be able to participate properly in the proceedings before the tribunal. Although the applicants could have made submissions to the court on the contents and findings of the report after having received it, the ECtHR was not convinced that the arrangement “afforded them a real opportunity to comment effectively on it.” The question the expert was instructed to determine was identical with the one the court had to determine and pertained to a technical field that was not within the court’s knowledge. Thus, the expert’s report was likely to have a preponderant influence on the assessment of the facts by the court. In these circumstances the applicants could only have expressed their views effectively before the expert report was lodged. Since there would have been no practical difficulty in allowing them to do this, failure to provide advance notification constituted a violation of their ECHR Article 6 right to a fair trial.

Strasbourg case law has established a “two-pronged test” to ensure that criminal proceedings involving expert evidence are fairly conducted (Van Kampen 2000: 201). First of all, national courts must ensure that both parties are able to have knowledge of, and comment on, the evidence adduced by the opposing party and that they are able to question and challenge any court-appointed expert. According to one of the latest cases, Mirilashvili v Russia (2008) App no. 6293/04, 11 December 2008, [190], “if the court decides that an expert examination is needed .. ., the defence should have an opportunity to formulate questions to the experts, to challenge them and to examine them directly at the trial.” This still falls short of any requirement that the defense be allowed to appoint its own expert to mount an effective challenge. If, however, objectively justified fears exist that the expert appointed by the court is not in fact acting with the presumed impartiality and neutrality, a second requirement is that national courts need to ensure that the defendant is provided with the opportunity to secure the attendance and examination of experts and/or witnesses on their behalf under the same conditions as the experts against them. This may require that the court appoints a counter-expert to ensure that the statements of the experts for the prosecution and defense are treated as probative equals.

Future Directions: A Participative Model

A recent report commissioned by the Council of Europe on the state of forensic science both globally and in the European Union has concluded that accusatorial and inquisitorial models alike do not lend themselves to the sound management of scientific evidence (Champod and Vuille 2011: 31). In those systems which give the parties prime responsibility for finding evidence, defendants who are already disadvantaged in the criminal process are penalized still further. Defense lawyers are ill-equipped to scrutinize prosecution expert reports. They may attempt to secure experts themselves but they frequently face difficulty in finding experts working in equivalent conditions to prosecution experts and even when defense experts can be found, they become involved at a comparatively late stage when critical samples have already been taken and they have to rely on information provided by the prosecution experts. The adversarial trial then requires judges and juries to assess scientific evidence in the “worst conditions imaginable” where the principle of “contradiction for contradiction’s sake” holds sway (Champod and Vuille 2011: 31). Inquisitorial systems, by contrast, place too much trust in court-appointed experts who are complacently supposed to be both neutral and competent and given the misplaced status of a “judge in white” (Volk 1993: 45). The expert’s work is rarely called into question and even when it is, the evidence is not assessed on its scientific merits but on the basis of exogenous factors, such as the expert’s reputation, employment, or official status.

Against the failure of legal systems across the common law and civil law traditions to provide a reliable system for gathering and assessing scientific evidence, it is hardly surprising that much of the focus of recent debates has been on improving standards within forensic science itself (see, e.g., National Research Council 2009; Champod and Vuille 2011). If we extend our gaze beyond the constraints of the adversarial and inquisitorial models of proof, however, improvements might also be made to the legal process within which scientific evidence must be gathered and assessed. The principles of equality of arms and adversarial procedure developed by the ECtHR provide the basis for realigning traditional proof systems, in accordance with a new model of proof better characterized as “participative” than as “adversarial” or “inquisitorial” (Jackson 2005). The participation model is predicated on the notion that although the main actors in the criminal process – prosecutors, defense lawyers, and adjudicators – each have separate defined roles in adjudication, processes of proof should be constructed to provide all these actors with as much relevant evidence as possible, as early as possible in the process so that it can be assessed, challenged, and evaluated in a spirit of positive participation. When it comes to scientific evidence, this would mean that the parties should ensure that scientific experts are fully informed during the course of their investigations and that the experts themselves are encouraged to share and examine information between themselves. Opportunities for effective challenge and testing should be maximized. This may be better achieved by way of written exchanges before trial than in the full glare of an adversarial trial. Traditional methods of oral examination and cross-examination developed to test cognitive capacities or the good faith of ordinary witnesses are less suited to scrutinizing scientific methodology.

In common with other generalized models of adjudication, it may be that the positive participation model is most useful in expressing values that should be embedded in adjudication than as a detailed “one-size-fits-all” blueprint for conducting all cases. There are also procedural values at work that tend to detract from active participation. The defense has no obligation in Anglo-American systems to put forward any positive theory of its case and is entitled to play a passive role throughout the process. Here the defense may be more inclined to play a negative role of demolishing the prosecution case than a positive role in the generation of specific theories and hypotheses. One commentator has claimed that adversarial systems, in which two parties dance a “tango” with each other to settle for an “interpretive” truth, are ill-suited to the more interactive or collective enterprise of searching for substantive truth which resembles a “rumba” performed by coordinated troupes of dancers moving in time to a shared rhythm (Grande 2008). Where scientific evidence is involved, however, it may be argued that all the lay participants have to try to understand what the evidence means in order to assess its value. Since legal systems cannot rely on scientists themselves to validate scientific theories and techniques, lay participants have no choice but to make the necessary epistemological inquires for themselves and this suggests that, at least in exchanges between the parties and the scientists, a more positive participative exchange should be encouraged and facilitated (see Imwinkelried 2011).

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