Expert Witness (8 page)

In order to address the issues about forensic science in the States, academics at UCLA are being granted funds to consider error rates in latent finger print evidence. As I mentioned
earlier, some would ask whether or not this sort of exercise should have been completed long ago. As with any other area of applied science, regular review should be undertaken. Unfortunately, this is not some thing that necessarily occurs in forensic science, partly because some agencies aren't keen on their databases being examined. I never had any problem reviewing glass or footwear mark databases when I was in England but who has ever fully analysed the data in national DNA databases?

Courtesy of the news media and programmes like
CSI
, we all know that DNA can be an extremely powerful tool in crime solution. When a sample from a crime scene is compared with a sample from an individual it should be the easiest thing to be able to say whether or not they originated from one and the same person, shouldn't it? In forensic science (and many other areas of science), without a solid and reliable database, interpretation of results can be troublesome or even meaningless. Once results have been obtained, a decision has to be made about how to report the findings so that the maximum amount of information can be gained from them. The way that's done varies between evidence types.

In cases involving physical fits, it can often be a simple case of yes, the pieces fitted together or no they didn't — conclusive either way, no grey areas. For other areas of forensic science it's a bit more complicated. DNA, for example, has a complex interpretation method based on statistical interpretation, which is part of the reason why DNA reporting in Victoria, Australia, was suspended at the latter end of 2009, temporarily halting the use of DNA in criminal cases because of a problem with interpretation of results after new technology was brought
online in September. As a result of the new technology, more detailed information was obtained from DNA samples but the statistical models used to interpret the data were inadequate. In simple terms, it meant the DNA profiles could result in the wrong people being arrested, tried and convicted — miscarriage of justice, everyone's worst nightmare.

So who has checked all the databases that have been built up by police and prosecution agencies over the years? Who checks them to make sure the data is correctly entered or that the statistical basis for the interpretation is still correct and appropriate? As it turns out, the answer seems to be no one. An article in
New Scientist
entitled ‘Unreliable evidence? Time to open up DNA databases' addressed this very issue. Most of the world's DNA results (and I am talking about those relating to criminal casework) are interpreted using the results of relatively small studies undertaken during the early years of DNA forensic casework. The opening two paragraphs of the article cover it quite nicely, I think:

I find that slightly unnerving, because I know from professional experience that if a DNA result is presented in court, it's
unbelievably difficult to shake anyone's faith in the result. If the result is correct then there's no problem; we just need to make sure that it
is
correct.

Ignoring any other kind of DNA database for the moment, there are essentially two types of forensic DNA databases. The first is the crime scene database, which is the one that contains DNA profiles obtained from crime scene samples (so we don't know who is the source of the DNA). The second is the reference sample DNA database, which contains the results of samples taken from known people, usually suspects (depending on the legal jurisdiction). I'm not suggesting there is anything significantly wrong with any of the DNA databases but they should be open to examination by independent scientists, so the reliance placed on DNA interpretations can be shown to be well-placed. It makes the results relevant and reliable, which is important for acceptance as evidence in court. Plus we don't want situations where the wrong person goes to prison because of an incorrect match. The converse is that if a mistake was made entering a reference profile into a database, a comparison of a crime scene sample result with the reference samples might not show a match — we'd miss what could otherwise have been a ‘hit'.

The big question is whether the FBI will allow a group of independent scientists to review the USA's CODIS database — and the answer at the moment is no. I can under stand their reluctance in a way but I think it would be a better thing to have it reviewed now rather than wait for a specific case to demonstrate a monumental stuff-up and be beaten with the consequences later. It would also be better to have the data reviewed by people who would sign confidentiality agreements
and then look at the data as a whole set rather than focusing on one case where there may well be a problem. Any doubts about the reliability of DNA databases could be scotched by allowing a review. We all have our dreams, and I hope the scientists' comes true.

 

I don't know whether the USA was inspired by the British to undertake their nationwide review of forensic sciences, but it's interesting that in 2008 the British government appointed a chap called the Forensic Science Regulator to start a review of forensic science. One of the major things he did was shut down the Council for the Registration of Forensic Practitioners (CRFP), which was a bit of a shock. Not least because I paid a load of renewal subscription money for being reassessed in several areas and it took me over a year to get any of it back. As I under stand it, it wasn't that the CRFP was doing anything wrong, more that it wasn't doing it very efficiently. It was originally set up to bring some kind of regulation and accreditation to the forensic science industry and partly to keep out people like the now-jailed Mancunian imposter. It had been funded by the government and had the backing of MPs and all kinds of important people, but it just couldn't quite get to where it needed to be. Still, these things have to start somewhere.

As one of the few professional bodies in England and Wales dealing specifically with the forensic sciences, the Forensic Science Society had many things to say on the subject of the review. Among their comments was this: ‘Experience is not necessarily expertise although expertise is based on experience.' The Society has a very good point.

The Forensic Regulator is currently producing a Forensic Science Standards Guidance Manual that will detail how he plans to identify, develop, implement and enforce quality standards relating to the provision of forensic science services to the Criminal Justice System.

Once he's decided what makes an expert an expert, I'll let you know. In the meantime, I generally fall back on the old favourites that include making sure people doing the forensic science are trained and qualified, other people recognise them to be so, they use methods that are tried, tested, reliable and don't have a bad reputation — all pretty standard stuff, you'd think. And, as the Forensic Science Society rightly suggests, parties should check whether there is ‘any evidence to suggest the expert may not be impartial' — this applies to both sides.

 

As a result of the issues I've outlined above, casework in England and Wales is now, and has been for many years, routinely examined by solicitors and barristers, whether the matters be criminal, civil, insurance, Family, Youth or whatever other tribunal. If a lawyer receives a specialist report of any kind they pick up the phone and talk to a relevant specialist to get some advice. Forensic scientists are very used to independent experts coming in to view their work and examine exhibits; they know it's just a quality control check to make sure every thing is fully, fairly and accurately reported. In many cases, they know that the
real
work for the independent expert is in reinterpreting the information based on a new set of circumstances described by the defendant. Not that we tell them that's what we're doing
or what those new circumstances are! Most prosecution experts have been to court enough times to know that the scientific issues at court aren't usually about what they've reported but about what the defence says they mean based on the defendant's account of events. Every thing is very open and friendly between the scientists because we all know that complete access to the information makes life easier for all concerned. The Criminal Procedure and Civil Procedure Rules facilitate this approach and it means the working day is much easier and giving evidence in court is much less stressful.

New Zealand on the other hand has a totally different approach to the matter. It is relatively unusual for independent experts to attend the laboratories of ESR Forensic. Compare that with independent scientists in England and Wales who visit ‘prosecution' laboratories a couple of times a week (depending on their areas of expertise). Population size is not really the defining factor because I estimate that in England and Wales each independent company (each containing a variety of specialists) serves a couple of million people and undertakes several hundred reports each year. Compare that with New Zealand where the amount of cases subjected to thorough scientific review is a small fraction of that undertaken in the United Kingdom. This confirms the view expressed to me by some criminal law barristers that New Zealand cases tend to be challenged on technical legal grounds. To me, the most sensible way forward is to at least consider the whole shebang, which also then fulfils the lawyer's duties as set out in the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. These rules are made in accordance
with the Lawyers and Conveyancers Act 2006, the purposes of this Act being, among other things, ‘to maintain public confidence in the provision of legal services'. As a forensic scientist, I want to make sure that if science is used to put someone in prison, it's the right person and for the right scientific reasons.

I don't know what the US and UK reviews will finally say but the thing to remember is that if the overall outcomes and the work being carried out to address those outcomes identifies some real problems, the implications could be felt throughout court systems worldwide — including New Zealand. We shall just have to watch and see.

C
ourt buildings are as varied in appearance, atmosphere and setting as the cases heard within their walls. Some modern courts are just plain hideous and when I say ‘modern' I mean post-war or 1970s and it seems to be the lower courts that suffer the most — Magistrates' Courts or District Courts.

Guildford Magistrates' Court in Surrey, England, is a vile box of a monstrosity: rain-streaked grey concrete overlying dull brown brick, wedged between two main roads and a municipal car park. It's hard to describe it in any unique or distinguishing way because nothing about it is either unique or distinguishing; it just looks like so many other grey, concrete, two-level office blocks. Given that it's so vile, you'd think urban planners would have learnt and wouldn't make the same mistake again. Oh, how wrong it is possible to be. Just down the road in Aldershot (which, interestingly, is easily mis-typed as Aldershit) is a repeat offender, this time in a slightly paler shade of grey. The car park surrounds it and the ring road is right outside the front door. The oppressiveness continues inside, in charmless rooms, orange plastic chairs in the waiting area, brown/cream cracked melamine-topped counters and a school toilet. The court seats are slightly better — of the
fabric-covered variety but sit on an industrial strength brown carpet and windowless corridors.

On the other hand, some lower courts are lovely, such as Chelmsford Magistrates. A beautiful open entry hall with high ceilings, tiled flooring and carved wooden handrails. Some courts are just surprising. North Somerset District Court is lovely and airy but has a strange pile of stones out the front — perhaps they had some money left over and didn't know what to spend it on. The parking is excellent, though, and free.

Manukau District Court is quite pleasing on the eye from the outside and it hasn't aged too badly considering how many cases they hear and the number of people thronging through the front doors on a Monday morning, which is a busy court day because it's the first chance to hear cases involving people who got locked up over the weekend. The first time I was at Manukau was as a mere forensic science assistant, not long after it first opened. The carpets were new and the interior walls freshly painted. The exterior glass walls on the ground floor were sparkly in the sunshine and it only felt a
tiny
little bit like being in a goldfish bowl. I looked around as two families exited the building through the shiny, sliding glass front doors and decided that if I had to be giving evidence in court, this was as nice a place as any to do it. As I glanced out through the clean, shiny windows, admiring the freshness of the whole place, my eyes happened upon two large men advancing swiftly on one another in the car park, each part of the family groups I had just seen leaving the brand new reception area. The splendid new windows blocked out the sound so it was like watching TV on mute. Three seconds later there was a full-on (silent) fist fight, complete with (silently) screaming women,
grappling police officers trying to prise the two apart followed by (silently mouthed) arrests. My overall impressions were that perhaps the sliding front doors might be better replaced with revolving ones and that life in a court building is a roller coaster of unexpected events. Perhaps there is some irony in being able stand in the car park and watch people on a
real
roller coaster at Rainbow's End amusement park.

Auckland District Court is another kettle of fish entirely. It's drab and oppressive and there is no parking anywhere nearby that doesn't cost an arm, a leg or a towtruck. Other courts are the usual sort of mundane, functional government department-type building that doesn't really register a memory or a specific mention. Overall, though, I have to say that New Zealand courts tend to smell less malodorous than English ones.

The higher courts, such as Crown and High Courts, are often stunning. I divide them into two sorts. The traditional, prominent, imposing edifice that radiates formality that has a kind of pressurised force field around it that increases as you reach the doors, although that could be psychological. The second sort seems to have been built to break that traditional mould of oppression. They tend to be light and airy with big windows and carpeted floors. I personally really like Auckland High Court because it has a bit of both sorts, with a huge stained glass entranceway; it neatly blends new architecture with the original building.

As you go through the second set of entrance doors, there's a little corridor that slides off into part of the old court — it's like discovering a secret passageway. There's also a little café in the main foyer with very frank notices on the walls
basically saying that loose lips sink ships: don't talk about your case in a loud voice because you might give the game away to someone on the other side. It's the only court I've ever visited where they point out the very thing that everyone does (even unintentionally) but to which no one likes to admit.

Christchurch High Court, on the other hand, is a large grey-brown monster with no character whatsoever, and lifts that take forever to arrive. On days when I feel energetic I race up the stairs to see if I can get to the fifth floor before the lift. The view from the top is fantastic, though — right across to the Southern Alps. When the experts from the United Kingdom were over for the Bain retrial, a glimpse through the snow clouds to the mountains was all they saw of New Zealand's southern magnificence.

One would think that the Crown Court in Cambridge, England, would be a fantastic seat of judicial finery, being as it's located in one of the most famous educational cities in the world. Cambridge was inhabited as far back as the Bronze Age and the modern city was formally founded in 875 AD by invading Danes. Having a population of around 2000 by the time the Domesday Book was written in 1086, Cambridge went from strength to strength. In the early 1200s, hostile townsmen scared some scholars away from Oxford, who took refuge in Cambridge. From that was born the start of the university.

Given that illustrious history, what possessed an architect and the local council to design and construct a court building on the ring road that looks like a multi-storey car park? In its infinite wisdom, the local council has also taken away most of the directional road signs from the Cambridge ring road. This is supposed to discourage people from driving into and around
the city, thus encouraging them to use the Park & Ride bus transport system. What it actually does is cause more traffic, because so many people don't know about the lack of road signs until it's too late and they end up driving round and round and
round
until they end up trying to drive into the Crown Court because it looks like a car park and they're desperate to park their car. Failing to find an entrance to the apparent car park, they turn round and head out of the city, presumably to somewhere with less traffic phobia, like Scotland.

There are, of course, other famous seats of judicial loveliness, such as the Central Criminal Court, which is located in the street for which it is also informally named, Old Bailey. The Old Bailey is located just outside the official City of London, near Newgate Prison. This was a convenient location for transport of prisoners to the court for their trials and a convenient return trip to the prison and the gallows if they were found guilty. The last public hanging at Newgate, which involved use of the portable gallows, took place in 1868 and in 1907 it was the site of the last private hanging. The court itself was extensively remodelled just after this.

The first time I attended the Central Criminal Court was with a colleague; he had written a fire report, I had written a footwear report. We travelled down together and were met at the front door of the court building by the junior barrister. It's an imposing place, the Central Criminal Court, not just because of its notoriety but also because of its incredible security-rich entrance area. The main entrance is an understated affair that's easy to walk past if you don't know where to go. Once inside the revolving door, you're in a corridor formed by the exterior wall on the right and a long
glass window on the left. Official security-type people watch you through that window. You advance towards what look like two airlocks. Only one person at any one time passes through each airlock. You can't enter the airlock until the person in front has cleared the other side. The front door of the airlock is activated by a pressure pad on the floor. You then step into the airlock and the door closes behind you, so it's not for the claustrophobic, even though it's all transparent. The glass panel in front of you then opens and you can step out, followed by the door closing behind you. And then the security really begins — the usual emptying of pockets into a tray, an airport security-like walkthrough, hand-held body scanners, X-ray for bags and pocket contents, visual and physical pat-down then a tick-off on the list of expected visitors before you are released into the waiting area to wait for your chaperone to arrive and accompany you to the relevant part of the court.

After we'd negotiated the Star Trek arrivals hall, we were taken up a set of wide stone staircases to the first floor. On the way up the stairs, our attention was directed to a seemingly innocuous object protruding from high on a brush-painted and otherwise featureless wall. In the 1970s the ‘Troubles' between the British and the Irish in Northern Ireland took a new turn. Before then, the IRA hadn't targeted mainland England. In March 1973, a car bomb went off outside the Central Criminal Court, killing one man and injuring more than one hundred others. The blast blew window glass and debris into the Central Criminal Court and the innocuous-looking object in the wall was a fragment of that glass, left there when the frontage was rebuilt, ‘lest we forget'. It's a very real reminder of the fear that gripped England, and me as a
child, for a long time. As a lawyer in England during the 1970s and 1980s, my mum remembers court windows being fitted with special long, net-style curtains. They hung down like normal curtains but finished off in what looked like a window box running along the windowsill level. There was plenty of spare material in the length of the curtain so that if a bomb went off outside and the window glass was shattered and blown into the court, the reinforced net-type curtains would billow inwards with the force of the explosion and catch the glass fragments, thus sparing the people in the building from being sprayed with flying, and possibly fatal, shards.

The embedded glass fragment at the Old Bailey is why they make you go through such a robust security check when entering the court. Not just to prevent terrorists taking bombs into the court but also to protect court users from those unbalanced members of society who have otherwise not been restrained or treated successfully — I believe it's called Care in the Community. Security procedures are also to keep people inside the court buildings safe from convicted criminals, those about to be convicted, disgruntled partners/spouses/children, violent friends and/or family of defendants, bearing in mind that the worst criminal cases are heard at the Old Bailey.

Once you've negotiated the security, if you're lucky you get to go to the old part of the Central Criminal Court, with its carved wooden doorways, hand-painted murals on ceilings and walls, heavy wooden court room doors and incredibly crowded court rooms. The court room I visited on that occasion wasn't crowded in that there were too many people because, quite frankly, you can't fit too many people in because of the
enormous mass of timber. The dock was right in the middle of the court room and raised up high and it was a huge dock, too. Counsel was relegated to a very low place below the bench (which is where the judge sits), the witness box and the jury seats. It was confusing as a witness because you are taught to address the jury as the trier of fact, which is pretty difficult when the witness box is at one end of the jury seats — I was within spitting distance of the first two jurors but couldn't see the other end of the jury at all, which meant that they couldn't see me. Apart from the occasion when I was heavily pregnant and the jurors at the very end of the rows could see my fidgety belly sticking out. It was very bizarre.

All other English, Scottish and Welsh courts have, to my knowledge, less stringent but generally effective security features when compared with the Old Bailey. They have permanent, fixed-to-the-floor walk-through metal detectors like the ones they have at the airport, unlike New Zealand where they wheel them into position occasionally, seemingly dependent on whether there are funds to pay for security staff. I thought that might change when a man in Wellington managed to take a knife into court and stab himself in the neck when he was being sentenced. The metal detectors were at court but weren't being used that day.

 

Many people underestimate the importance of preparation. Time spent in preparation is never wasted; and it's vitally important to prepare for going to court. Giving evidence is the pinnacle of what it means to be an expert witness and forensic scientist. The original meaning of forensic related to the marketplace, or debate in a public forum, and now relates
largely to a court of law. Forensic does not mean scientific evidence.

I've established my own rules for getting ready for court, none of which I have ever seen taught in the formal setting of a classroom or lecture theatre. They're not hard and fast, and like all rules, are some times broken. Just like learning to drive a car, one learns how to drive by the rule book then one uses one's accumulating experience to decide which ones can be bent (rules that is, not vehicles).

Rule 1

One working day before you're due to go to court, check with your instructing party to confirm you are definitely still required to attend at the time and date previously agreed. Contacting your instructing party more than one day in advance gives circumstances a chance to change drastically. There's a good chance that the state of play at 4.30 p.m. the evening beforehand will match the circumstances at 9 a.m. on the day you're due to give evidence.