{"id":14519,"date":"2024-06-06T17:07:36","date_gmt":"2024-06-06T07:07:36","guid":{"rendered":"https:\/\/rationalemagazine.com\/?p=14519"},"modified":"2024-06-08T12:30:20","modified_gmt":"2024-06-08T02:30:20","slug":"junk-science-in-australias-courtrooms","status":"publish","type":"post","link":"https:\/\/rationalemagazine.com\/index.php\/2024\/06\/06\/junk-science-in-australias-courtrooms\/","title":{"rendered":"Junk science in Australia’s courtrooms"},"content":{"rendered":"

The conviction of Robert Farquharson for the murder of his three sons on Father\u2019s Day 2005\u00a0is being questioned<\/a>\u00a0in the media, with doubts raised about the reliability of prosecution\u2019s medical, traffic reconstruction and sinking vehicle evidence.<\/p>\n

This case has echoes of\u00a0Henry Keogh<\/a>,\u00a0David Eastman<\/a>\u00a0and\u00a0Lindy Chamberlain<\/a>. Their murder convictions were overturned when scientific and medical testimony from their trials was eventually found to be unreliable.<\/p>\n

The handling of expert opinion evidence by Australian courts is in a crisis. Curiously, our courts appear oblivious. They use forensic science evidence without regard for the best scientific advice.<\/p>\n

Australian courts ignore criteria recommended by peak scientific organisations such as the\u00a0United States National Academy of Sciences<\/a>\u00a0and\u00a0the Australian Academy of Science<\/a>\u00a0(AAS). The chief executive of the AAS, Anna-Maria Arabia, has warned that\u00a0our courts are susceptible to<\/a> ‘junk science’. Why is this happening and what can we do?<\/p>\n

Unlike most witnesses who can only testify as to facts, experts are allowed to express opinions based on \u201cspecialised knowledge<\/a>\u201d that would otherwise be unavailable to the court. Prosecutions frequently rely on expert evidence such as DNA profiles, fingerprint comparisons and post-mortem reports.<\/p>\n

Problematically, courts fail to insist on formal validation of the experts\u2019 methods before their opinions are admitted. In 2009, the US National Academy of Sciences concluded that<\/a> apart from DNA:<\/p>\n

…no forensic method has been rigorously shown to [\u2026] consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.<\/em><\/p><\/blockquote>\n

The academy expressed concerns about the accuracy of expert comparisons of fingerprints, ballistics, hairs, handwriting, bite marks, explosives, paints and blood stains.<\/p>\n

Scientists have been working hard to enhance forensic sciences in the aftermath of the report. While there have been validation studies and practical improvements in some areas,\u00a0subsequent independent reports<\/a>\u00a0have typically remained critical in their evaluations.<\/p>\n

For example, fingerprint examiners\u00a0were shown to be accurate<\/a>\u00a0but not infallible, as was claimed historically. Their error rate is roughly 1 in 400.<\/p>\n

Other comparison procedures fared less well. For example, despite formal qualifications in dentistry and forensic experience,\u00a0forensic dentists can\u2019t reliably link<\/a>\u00a0a bite mark on human skin with specific teeth. Indeed, they can\u2019t even determine whether marks on skin\u00a0are<\/em>\u00a0bite marks.<\/p>\n

Australian courts don\u2019t have rules, procedures and personnel that can effectively regulate the admission of these types of evidence.<\/p>\n

Forensic scientists can implicate defendants without reference to validation studies and without appropriate caveats. Courts are often shielded from error rates and scientific criticism. Little account is taken of the risk evidence is biased by examiners\u2019 exposure to information implicating the suspect, and examiners\u2019 close relations with prosecutors.<\/p>\n

Australian courts have also ignored\u00a0recent scientific reports<\/a>\u00a0and\u00a0academic demands<\/a>\u00a0that we need to tighten the rules for what evidence is admitted in court.<\/p>\n

Rules require expert opinion to be substantially based on \u201cspecialised knowledge\u201d, but this doesn\u2019t involve the reliability of that knowledge.<\/p>\n

Australian courts tend to rely on proxies for specialised knowledge. These can be general qualifications, job titles, experience, previous appearances in court and the plausibility of the expert\u2019s interpretation.<\/p>\n

No one in court \u2013 neither prosecutors, expert witnesses, nor trial and appellate judges \u2013 addresses the all-important questions: can the expert do it? How well? And how do we know? As a consequence, ‘junk science’ is routinely admitted, leading to incurable unfairness and even wrongful convictions.<\/p>\n

Rules require expert opinion to be substantially based on \u201cspecialised knowledge\u201d, but this doesn\u2019t involve the reliability of that knowledge.<\/strong><\/p><\/blockquote>\n

Defence counsel are also at fault. Australia\u2019s leading advocates are rarely effective in cross-examining forensic scientists about the validity and accuracy of their opinions.<\/p>\n

American legal scholar John Henry Wigmore said cross examination is \u201cthe greatest legal engine ever invented for the discovery of truth\u201d. But it consistently fails, as have\u00a0other adversarial mechanisms<\/a>, such as opposing witnesses and judicial directions.<\/p>\n

Expert evidence of dubious reliability is regularly admitted and left to the jury to somehow evaluate.<\/p>\n

Perhaps the criminal justice system\u2019s scientific ignorance shouldn\u2019t be surprising. This ignorance is the very reason we need expert evidence.<\/p>\n

But lawyers and judges can become complacent toward their critical abilities and the effectiveness of traditional legal rules, procedures and safeguards. (This complacency contributed to the failure of the 2019 inquiry to correct\u00a0Kathleen Folbigg\u2019s wrongful conviction<\/a>.)<\/p>\n

The very reason for holding a trial is that we don\u2019t know if the defendant is guilty. But this unknown and the finality of a jury verdict means we don\u2019t tend to get meaningful feedback on the system\u2019s effectiveness (or lack thereof).<\/p>\n

Evidence-based reform is urgently needed. We should impose\u00a0an explicit reliability standard<\/a>\u00a0on all expert opinion evidence. Courts need to understand the limitations of forensic science and medicine evidence. Their proud legal traditions should not insulate them from the chorus of advice from peak scientific bodies.<\/p>\n

The federal government should create an independent multidisciplinary panel\u00a0to provide scientific assistance<\/a>\u00a0on controversial subjects such as CCTV and voice identification, or whether there are reliable means of identifying abusive infant head trauma.<\/p>\n

Finally, Australian governments should also establish an independent Criminal Cases Review Commission to uncover and refer potential wrongful convictions\u00a0back for further appeal<\/a>.<\/p>\n

Such a body, operating outside the traditional adversarial system, may help persuade complacent criminal courts that seemingly damning \u201cexpert\u201d evidence should not always be taken at face value.<\/p>\n

This article was originally published in <\/em>The Conversation. It is co-authored by David Hamer, Professor of Evidence Law at University of Sydney.<\/em><\/strong><\/p>\n

Photo by George Prentzas<\/a> on Unsplash.<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

The conviction of Robert Farquharson for the murder of his three sons on Father\u2019s Day 2005\u00a0is being questioned\u00a0in the media,<\/p>\n","protected":false},"author":742,"featured_media":14521,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[18],"tags":[523,694,371],"coauthors":[695],"class_list":["post-14519","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-law-politics","tag-evidence","tag-legal-system","tag-science"],"acf":[],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/posts\/14519","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/users\/742"}],"replies":[{"embeddable":true,"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/comments?post=14519"}],"version-history":[{"count":5,"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/posts\/14519\/revisions"}],"predecessor-version":[{"id":14527,"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/posts\/14519\/revisions\/14527"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/media\/14521"}],"wp:attachment":[{"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/media?parent=14519"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/categories?post=14519"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/tags?post=14519"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/rationalemagazine.com\/index.php\/wp-json\/wp\/v2\/coauthors?post=14519"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}