Canadian Courts, Law and Forensic Science

Question 1

What is the role of the expert witness?

Answer 1

Purely to speak of facts, not one to convict/save, nothing to prove

Question 2

What is the adversarial system?

Answer 2

Two opposing sides presenting their own facts

Question 3

Differentiate between science and law

Answer 3

Science: develops and tests hypotheses, revision of opinions over time as necessary
Law: preserves social order, makes definitive judgments

Question 4

What three court failures can explain failures of the criminal justice system?

Answer 4

Failure to detect incompetent experts
Failure to properly define expert qualifications
Failure to adequately assess the quality of expert witness testimony

Question 5

What are some potential problems with expert evidence?

Answer 5

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

Question 6

What is viva voce evidence?

Answer 6

oral evidence

Question 7

What is affidavit?

Answer 7

A written statement or declaration of facts that are sworn or affirmed to be true

Question 8

What is the preliminary trial/inquiry?

Answer 8

The procedure conducted by a provincial court to determine whether the Crown has sufficient evidence for a trial of the accused

Question 9

What is a lay witness?

Answer 9

An individual at a trial who is asked to provide info about the incident
Can only provide info personally observed
No opinions

Question 10

What is an expert witness?

Answer 10

An indvidual at a trial who is asked to provide information about a subject area that requires expertise to understand
Can provide opinion testimony

Question 11

Outline the trial process for an expert witness

Answer 11

Oath or affirmation to tell the truth
Voir dire to determine status as an expert witness
Examination in chief
Cross examination
Re-examination

Question 12

What is an oath?

Answer 12

A solemn declaration, followed by a swearing to God or honoured deity, whereby a person promises to tell the truth

Question 13

What is an affirmation?

Answer 13

Solemn declaration made by a person to tell the truth.

Question 14

What is a voir dire?

Answer 14

Procedure to determine admissibility of certain evidence or whether an individual qualifies as an expert

Question 15

What notice must the Crown provide to the courts about their expert witness?

Answer 15

30 days prior must provide:
name, statement of qualifications, area of expertise

Question 16

When must the defense provide their notice of an expert witness?

Answer 16

No later than the close of the Crown’s case?

Question 17

Why the difference between the time allotted for the Crown’s vs. defense’s notices?

Answer 17

Crown has governmental resources behind them

Question 18

What is the examination in chief?

Answer 18

Direct exam
Questioning of a witness in a trial or other proceeding conducted by the party who called the witness to testify

Question 19

What is the cross examination?

Answer 19

Examination of a witness by an opposing party to develop or test the truth of the evidence by the witness during examination in chief

Question 20

What is re-examination?

Answer 20

Re-questioning of the witness by chief examiner

Question 21

What is re-examination limited to?

Answer 21

Clarifying statements made during cross
Asking questions related to new info made available during cross
Cannot ask questions unrelated to cross

Question 22

Summarize R. v. Mohan

Answer 22

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

Question 23

Outline the appeal process in Mohan

Answer 23

1. Mohan appeals to ON court of appeal
2. Crown appeals to ON court of appeal stating sentence wasn’t long enough
3. Appeal court finds expert testimony to be admissible
4. Crown appeal to SC of Can
5. SC finds testimony inadmissible and upholds original judge’s decision

Question 24

What criteria for an expert witness was laid out following R v Mohan?

Answer 24

Relevance
Necessity in assisting the trier of fact
Absence of any exclusionary rule
Properly qualified expert

Question 25

What are the 3 mechanisms of exclusion?

Answer 25

Prohibited by statute
Common law rules of evidence
Prohibited by operation of a statute even if not explicitly stated

Question 26

What makes a properly qualified expert?

Answer 26

Acquired knowledge of the area in question through study, research, experience

Question 27

What was the purpose of Frye vs. US?

Answer 27

Dealt with admissibility of polygraph evidence
Determined rules of admissibility of scientific evidence
Determined evidence must be generally accepted by scientific community.

Question 28

What are the two main criteria of evidence established by Frye?

Answer 28

Relevancy and reliability

Question 29

What makes evidence reliable according to Frye? (5)

Answer 29

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

Question 30

What is Coroner’s court?

Answer 30

A public hearing held under authority of Coroner’s act

Question 31

What are the sides involved in a coroner’s court?

Answer 31

Crown - attorney representing the province
Counsel for parties withstanding - vested interest with inquest

Question 32

How many jurors are present in an inquest?

Answer 32

5

Question 33

What is the point of the inquest?

Answer 33

Determine:
Who, what, where, how, by what means

Question 34

What is the role of the jury in an inquest?

Answer 34

Makes recommendations to prevent future deaths of a similar nature based on evidence heard.

Question 35

What are the two types of inquests?

Answer 35

Discretionary and mandatory

Question 36

What is a discretionary inquest?

Answer 36

Coroner’s office determines the inquest would be beneficial for public safety

Question 37

Give an example of a situation that would result in a mandatory inquest.

Answer 37

Death in police custody

Question 38

What was the point of R. v. Jordan?

Answer 38

Set out strict guidelines for the time it takes for a case to proceed to trial.

Question 39

What did R. v. Jordan determine?

Answer 39

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.

Question 40

Why is R. v. Jordan important to forensic scientists?

Answer 40

Timing is an issue in forensics, it is important we ensure the proper work is happening in a timely manner.

Question 41

What was the White Burgess case?

Answer 41

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

Question 42

What was the point of White Burgess?

Answer 42

SCC test for assessing the impartiality of expert witnesses

Question 43

What were the issues outlined in White Burgess?

Answer 43

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

Question 44

State the impartiality statement

Answer 44

I understand my obligation to the court is to provide objective and impartial opinion evidence that is within my area of expertise.