David A. Hamer

Atkins v The Emperor : the ‘cautious’ use of unreliable ‘expert’ opinion

What happens to a country under constant surveillance? The recent decision in Atkins v The Queen provides a partial answer.¹ The sheer availability of images seems to be driving decisions about their admissibility and use as identification evidence. Confronted with CCTV recordings associated with criminal activities English courts have been reluctant to restrict their admission or impose limitations on the scope or form of incriminating opinion derived from them. Although the Court of Appeal decision in Atkins v The Queen is concerned primarily with the way in which an opinion derived from CCTV images was expressed, the decision exposes jurisprudential weakness and continuing problems with photo comparison and facial-mapping evidence.

Model forensic science

This article provides an explanation of the duties and responsibilities owed by forensic practitioners (and other expert witnesses) when preparing for and presenting evidence in criminal proceedings. It is written in the shadow of reports by the National Academy of Sciences (US), the National Institute of Standards and Technology (US), the Scottish Fingerprint Inquiry and a recent publication entitled ‘How to cross-examine forensic scientists: A guide for Lawyers’. The article examines potential responses to questions focused on the need for scientific research, validation, uncertainties, limitations and error, contextual bias and the way expert opinions are expressed in reports and oral testimony. Responses and the discussion is developed around thematics such as disclosure, transparency, epistemic modesty and impartiality derived from modern admissibility and procedure rules, codes of conduct, ethical and professional responsibilities and employment contracts. The article explains why forensic practitioners must respond to the rules and expectations of adversarial legal institutions. Simultaneously, in line with accusatorial principles, it suggests that forensic practitioners employed by the state ought to conduct themselves as model forensic scientists.

The Presumption of Innocence and Reverse Burdens: A Balancing Act

Courts have found some reverse burdens compatible with the presumption of innocence, while rejecting others. But the principles distinguishing the compatible from the incompatible have not been clearly stated. This article seeks to bring greater predictability to the law by identifying the relevant factors, and placing them in a principled and clearly structured framework. While shifting the balance, reverse burdens must maintain proportionality between the defendants right to avoid erroneous conviction and the communitys need for law enforcement. The injustice of an erroneous conviction - and the defendants right to avoid it - is greater for more serious offences and where the reverse burden operates on the gravamen of the offence. Even where an offence poses a severe threat to society, courts will be reluctant to uphold a reverse burden, increasing the risk of erroneous conviction, unless such an error would not inflict too grave an injustice on the defendant. In determining proportionality regard must be had to the ease or difficulty that either side would have in discharging the burden placed upon them, but again, difficulty of prosecutorial proof will not justify a reverse burden where an erroneous conviction would constitute a serious injustice.

Judicial Notice: Beyond Adversarialism and into the Exogenous Zone

ABSTRACT Recent Australian decisions regarding courts’ unilateral access to exogenous (ie non-legal) knowledge have been restrictive, reflecting a strong commitment to the adversarialist principle of party presentation. With reference to underlying goals of factual accuracy, efficient dispute resolution, fairness and institutional integrity we argue that the restrictions should be loosened. The strict principle of party presentation, with only narrow scope for judicial notice, may be justified with regard to the specific facts of the case, given that the parties will have special access to relevant evidence and a strong motivation to present it. However, there is no reason to privilege the parties where legislative facts and general factual propositions are in issue. While the parties should, of course, be given notice and the opportunity to make submissions, the courts should feel an obligation to draw on a wider range of sources of information. This is particularly the case where there is an imbalance in the resources of the parties.

A little ignorance is a dangerous thing: engaging with exogenous knowledge not adduced by the parties

ABSTRACT Using a recent trial and appeal in Canada as an example, this essay reviews our conventional reticence to allowing judges to draw the attention of counsel to issues that might influence the assessment of forensic science evidence in criminal proceedings. We question the institutional commitment to judicial non-intervention and suggest that on many occasions judicial passivity or quiescence (rather than impartiality) threatens the fundamental goals of fairness and factual rectitude. The essay explores the scope and rationale for judicial engagement with exogenous knowledge within the confines of adversarialism.

'Factual Causation’ and ‘Scope of Liability’: What's the Difference?

According to a dominant view, for the negligent defendant to be held liable for the plaintiff’s harm the plaintiff must establish first, that the breach was the ‘factual cause’ of the harm, and second, that the harm is within the ‘scope of liability.’ On this view, factual causation is purely factual, while scope of liability is normative and non-causal. This article accepts the basic two-step approach, but argues that the distinction is overstated. A close analysis of the principles shows that factual causation may require value judgment, and that scope of liability often involves an assessment of the strength and nature of the causal connection between breach and harm.

Expected frequencies, exclusion percentages and ‘mathematical equivalence’: the probative value of DNA evidence in Aytugrul v The Queen

In Aytugrul v The Queen the High Court held that it was acceptable to express the strength of DNA evidence in terms of an exclusion percentage. A key reason of the Court was that this was equivalent to the expected frequency of the DNA profile. This article assesses these two measures from a mathematical perspective. While the two are closely related, the frequency measure is to be preferred. The exclusion percentage fails to adequately capture the difference in probative value between DNA profiles of different frequencies.

The Legal Structure of Propensity Evidence

The law excluding and admitting evidence of defendants’ other misconduct has long been regarded as overly complex across the common law world. Various reforms have been tried through case law and legislation but without bringing noticeable improvement. In this paper I have sought to identify and understand the sources of complexity through structural analysis. The article provides a close examination of different forms of the exclusionary rule and admissibility tests, the laws’ policy goals, the regulated inferences and the relationship between these various things. The analysis provides neither a neat picture of the law nor a recipe for simplification. Instead it offers a greater understanding of the forces operating on the law, the various forms the law may take and their functionality. Propensity evidence occupies complex heterogeneous terrain, but landmarks, signposts and pathways for reform can be discerned.

Review: A Philosophy of Evidence Law—Justice in the Search for TruthLaiHo HocA PHILOSOPHY OF EVIDENCE LAW—JUSTICE IN THE SEARCH FOR TRUTHOxford University PressOxford, 200 hb, 3 pp, 0

Ho’s book makes a useful contribution to the burgeoning and contested field of evidence theory. Its value is twofold. As well as presenting his own thoughtprovoking perspective on evidence law, Ho provides a broad and exhaustively referenced survey of past and current thinking, which will be useful both for newcomers to evidence theory and for more seasoned evidence commentators. Indeed, at times, Ho’s book is scholarly to a fault. Sometimes Ho foregrounds his own work insufficiently, and the thread of his argument can be lost amidst the concepts and analyses of others. The discussion of speech act theory, for example, which takes up much of the first chapter, is erudite and interesting, but the extent to which it advances Ho’s theory of evidence law is less clear.