Forewarned…

Forewarned is forearmed or, if Latin is your thing, “praemonitus, praemunitus”. So the saying goes and clearly there is great value in knowing what lies ahead for us. If we know what is coming our way we can, in theory, prepare properly for any challenge.

Challenges are nothing new to forensic scientists. Critics routinely point out issues they perceive with various forensic disciplines. Some of those criticisms are fair and reasonable, others are not. Much of the critical commentary affects a discipline as a whole demanding an overall, or group, response by members of each discipline. In my experience, disciplines are generally behind the curve in their responses to critics. Nonetheless, over time some issues have been addressed, at least partially if not completely, through empirical research.  Others have not. To be fair, the activities needed to properly address the critics are not trivial and require both time and resources; scarce commodities in modern forensic labs. Overall, things are improving, albeit very slowly.

Criticism takes on a whole new meaning in the context of a court of law. Indeed, I think that criticism is the essence of cross-examination — a fundamental and important aspect of any adversarial justice system. Although essential, it is rarely an enjoyable part of the proceedings for any expert.

I find cross-examination to be the most interesting part of any witness’ time on the stand because they must answer whatever question is posed to them by ‘opposing’ (i.e., unfriendly) counsel. Criticism often begins very personal and has a practical tone since forensic examiners must answer serious questions about their own work. Truly the rubber meets the road during cross-examination.

Sometimes the witness can anticipate a line of questioning but, in general, it is rare that one knows what will come next. I don’t think that bothers any truly ‘expert’ witness. They are, after all, supposed to be knowledgeable about everything within the scope of their domain. In a way, it’s just part and parcel of being an expert. Still, it is nice to have some idea of what might be coming…

In that regard, an article published in the Australian Bar Review journal could be seen by forensic examiners as an early Christmas present. The paper is entitled “How to cross-examine forensic scientists: A guide for lawyers” written by an esteemed collection of academics including Professor Gary Edmond, Kristy Martire, and Richard Kemp, among several others.1

The article provides the reader with an excellent summary of various criticisms that can be raised in cross-examination of a (forensic) expert witness, with the focus in the article being “the identification (or comparison) sciences”; those pertaining to identity/origin/source of some sample or trace. While it provides little in the way of truly novel criticism, it does a great job outlining both general and specific issues presenting them in a very useful and practical way. The abstract reads:

This article is a resource for lawyers approaching the cross-examination of forensic scientists (and other expert witnesses). Through a series of examples, it provides information that will assist lawyers to explore the probative value of forensic science evidence, in particular forensic comparison evidence, on the voir dire and at trial. Questions covering a broad range of potential topics and issues, including relevance, the expression of results, codes of conduct, limitations and errors, are supplemented with detailed commentary and references to authoritative reports and research on the validity and reliability of forensic science techniques.

What better way to be forewarned than to read such recommendations and prepare a response to each and every one of them? In my opinion, every forensic examiner should be able to answer the questions posed in this article. Some are ‘easy ‘, others not so much.
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Certification — ABFDE

What is certification? To me, professional certification is a designation that indicates the holder of the certification has appropriate and adequate qualifications to do some particular, generally well-defined, job or task. As an example I am a forensic document examiner and I have received professional certification from the American Board of Forensic Document Examiners, Inc.

Certified

An internet search for ‘certification’ produces a huge list of possibilities, with more such programs being developed all the time as people become attuned to issues of quality and competency. Indeed, almost every profession has some type of certification and a few have several (consider all of the ‘certifications’ in the computing industry). Most, if not all, certification programs are aimed at improving the quality in a given profession by setting minimum standards for the job. The basic idea is that someone meeting or exceeding those standards will produce quality output on the job. Certification programs are generally created or are administered by a professional society, a college or university, or some private body set up expressly for that purpose.

Forensic Document Examination is no exception so it may be worthwhile discussing certification options as well as the pros and cons that I see for those options.
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R. v. Mohan — Canada’s Daubert

It is safe to say that pretty much everyone working in the forensic sciences has heard of the Daubert ruling or, more specifically, Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).1 It was a pivotal ruling that, together with two subsequent rulings General Electric Co. v Joiner, 522 U.S. 136 (1997)2 and Kumho Tire Co., Ltd. v Carmichael, 526 U.S. 137 (1999),3 has greatly affected many legal jurisdictions in the United States. And, as is often the case, what happens in the USA also tends to have influence elsewhere.

A few years later in Canada there was a key Supreme Court of Canada ruling that addressed admissibility of forensic expertise — R. v. Mohan, [1994] 2 S.C.R. R. v. Mohan — Canada's Daubert 9.4 That is the ruling which laid out the test for the admissibility of ‘novel’ expert evidence (see Mohan, page 4) in Canada. Subsequently, the factors explained in that ruling have been applied, just as those in Daubert were, to many types of traditional forensic science evidence. It is rather ironic that rulings intended to liberalise the admission of new (and potentially) helpful evidence would lead to challenges of all forms and types of evidence.
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