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 have with our work. Some of those criticisms are fair and reasonable, others not so much. 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 tend to be 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.

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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, whatever happens in the USA tends to have influence elsewhere.

R. v. Mohan — Canada's Daubert

Shortly after that, in Canada, there was a key Supreme Court ruling that addressed admissibility of forensic expertise — R. v. Mohan, [1994] 2 S.C.R. 9.4

That ruling 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, perhaps, rather ironic that rulings intended to liberalize the admission of new (and potentially) helpful evidence would lead to challenges of all forms and types of evidence.

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