Canadian Courts, Law and Forensic Science Flashcards
What is the role of the expert witness?
Purely to speak of facts, not one to convict/save, nothing to prove
What is the adversarial system?
Two opposing sides presenting their own facts
Differentiate between science and law
Science: develops and tests hypotheses, revision of opinions over time as necessary
Law: preserves social order, makes definitive judgments
What three court failures can explain failures of the criminal justice system?
Failure to detect incompetent experts
Failure to properly define expert qualifications
Failure to adequately assess the quality of expert witness testimony
What are some potential problems with expert evidence?
Scientific aptitude of lawyers, judges
Experts may not be the most qualified but most favourable to their respective side
Success may depend on delf-confidence and demeanor of the expert
Conflict between a lawyer’s duty to their client and duty as an officer of the law
What is viva voce evidence?
oral evidence
What is affidavit?
A written statement or declaration of facts that are sworn or affirmed to be true
What is the preliminary trial/inquiry?
The procedure conducted by a provincial court to determine whether the Crown has sufficient evidence for a trial of the accused
What is a lay witness?
An individual at a trial who is asked to provide info about the incident
Can only provide info personally observed
No opinions
What is an expert witness?
An indvidual at a trial who is asked to provide information about a subject area that requires expertise to understand
Can provide opinion testimony
Outline the trial process for an expert witness
Oath or affirmation to tell the truth
Voir dire to determine status as an expert witness
Examination in chief
Cross examination
Re-examination
What is an oath?
A solemn declaration, followed by a swearing to God or honoured deity, whereby a person promises to tell the truth
What is an affirmation?
Solemn declaration made by a person to tell the truth.
What is a voir dire?
Procedure to determine admissibility of certain evidence or whether an individual qualifies as an expert
What notice must the Crown provide to the courts about their expert witness?
30 days prior must provide:
name, statement of qualifications, area of expertise
When must the defense provide their notice of an expert witness?
No later than the close of the Crown’s case?
Why the difference between the time allotted for the Crown’s vs. defense’s notices?
Crown has governmental resources behind them
What is the examination in chief?
Direct exam
Questioning of a witness in a trial or other proceeding conducted by the party who called the witness to testify
What is the cross examination?
Examination of a witness by an opposing party to develop or test the truth of the evidence by the witness during examination in chief
What is re-examination?
Re-questioning of the witness by chief examiner
What is re-examination limited to?
Clarifying statements made during cross
Asking questions related to new info made available during cross
Cannot ask questions unrelated to cross
Summarize R. v. Mohan
Medical dr. accused of SA of young patients
Defense proposed to call an expert witness to give testimony that the accused did not fit the profile of someone who would commit the crime
Judge found expert evidence inadmissible - simply character witness type
Mohan guilty
Outline the appeal process in Mohan
- Mohan appeals to ON court of appeal
- Crown appeals to ON court of appeal stating sentence wasn’t long enough
- Appeal court finds expert testimony to be admissible
- Crown appeal to SC of Can
- SC finds testimony inadmissible and upholds original judge’s decision
What criteria for an expert witness was laid out following R v Mohan?
Relevance
Necessity in assisting the trier of fact
Absence of any exclusionary rule
Properly qualified expert
What are the 3 mechanisms of exclusion?
Prohibited by statute
Common law rules of evidence
Prohibited by operation of a statute even if not explicitly stated
What makes a properly qualified expert?
Acquired knowledge of the area in question through study, research, experience
What was the purpose of Frye vs. US?
Dealt with admissibility of polygraph evidence
Determined rules of admissibility of scientific evidence
Determined evidence must be generally accepted by scientific community.
What are the two main criteria of evidence established by Frye?
Relevancy and reliability
What makes evidence reliable according to Frye? (5)
Can be and has been tested
Peer reviewed and published
Known or potential error rate considered
Existence and maintenance of standards controlling operation
Attracted widespread acceptance within relevant scientific community
What is Coroner’s court?
A public hearing held under authority of Coroner’s act
What are the sides involved in a coroner’s court?
Crown - attorney representing the province
Counsel for parties withstanding - vested interest with inquest
How many jurors are present in an inquest?
5
What is the point of the inquest?
Determine:
Who, what, where, how, by what means
What is the role of the jury in an inquest?
Makes recommendations to prevent future deaths of a similar nature based on evidence heard.
What are the two types of inquests?
Discretionary and mandatory
What is a discretionary inquest?
Coroner’s office determines the inquest would be beneficial for public safety
Give an example of a situation that would result in a mandatory inquest.
Death in police custody
What was the point of R. v. Jordan?
Set out strict guidelines for the time it takes for a case to proceed to trial.
What did R. v. Jordan determine?
18 months in provincial court
30 months in superior court
Defense can take longer, but if Crown has case for longer than 30 months the case may get thrown out.
Why is R. v. Jordan important to forensic scientists?
Timing is an issue in forensics, it is important we ensure the proper work is happening in a timely manner.
What was the White Burgess case?
Accounting firm - new auditors discovered errors in previous auditor’s work and shareholders sued for professional negligence.
Retained a forensic accountant and partner at the new firm
Appellants brought an issue to strike her affidavit; said she was biased due to financial interest in the outcome
What was the point of White Burgess?
SCC test for assessing the impartiality of expert witnesses
What were the issues outlined in White Burgess?
Potential bias should be properly considered as part of qualified expert factor of Mohan
If an expert is unable or unwilling to provide an independent and impartial opinion they are not a qualified expert
State the impartiality statement
I understand my obligation to the court is to provide objective and impartial opinion evidence that is within my area of expertise.
