One of the strangest arguments I have heard raised in argument against the logical approach is that it means the expert will impinge upon the authority of the Court. I have heard this a few times recently. It is particularly troubling that this has come from lawyers. Unfortunately, this has always happened in a venue where I could not actually discuss the matter with them.
As an objection to the logical approach, this is the strangest argument I have ever heard, without a doubt. In fact, proper application of the logical approach is one of the few ways to ensure that this will not happen.
To clarify, it is important to first understand the concept of “usurping the role of the Court” which means, in essence, to improperly influence the court’s procedures and decision-making, often by speaking inappropriately to or about the ultimate issue. To be sure, there is a legitimate concern that this might happen, particularly with an expert. At the same time, it is certainly not a new idea and it has been written about literally for years.
It can be found in most codes and directives regarding expert evidence. Indeed, Justice Sopinka noted this issue in the 1994 R. v. Mohan ruling when he stated, in part, “There is also a concern inherent in the application of this criterion that experts not be permitted to usurp the functions of the trier of fact.”
I recently published an editorial in the Journal of the Canadian Society of Forensic Science. Two versions were published almost simultaneously (the original written in English and a translation in French) entitled, respectively, “CSFS Document Section Position on the Logical Approach to Evidence Evaluation and Corresponding Wording of Conclusions” and “La position de la Section des documents de la SCSJ sur l’approche logique de l’évaluation de la preuve et le libellé des conclusions”.
I wrote these in my capacity as the sitting chairman of the Documents section of the CSFS, on behalf of the members of that section. The impetus for writing them was to introduce the “logical approach” and related topics to the Canadian forensic community in a ‘formal’ way (hopefully resulting in ongoing discussion) and to provide the public and the courts with the perspective of forensic practitioners who have reviewed the literature and studied this issue in depth. To that end, the document references many initiatives relating to the topic. I will note that it’s not a perfect document but it covers the main points reasonably well.
Please note that this position paper was first written a few years ago. There was considerable delay in publication relating to the production of an acceptable French-language translation of the document. I must thank Julie Binette who was invaluable in that process. The delay, however, means the references provided in the paper are not fully up-to-date with the very latest developments in this area.
Nonetheless, that shortcoming doesn’t detract from the position expressed. Today there is even more support and justification than is outlined in the paper.
David H. Kaye (DHK) is one of my favourite writers. He is truly prolific and always manages to provide great insights for the reader. His grasp of statistics, logic, and the law is second-to-none, and his ability to communicate those very challenging topics to his audience is equally impressive.
As a mini introduction, David “…is Distinguished Professor, and Weiss Family Scholar in the School of Law, a graduate faculty member of Penn State’s Forensic Science Program, and a Regents’ Professor Emeritus, ASU.” If you would like to see a list of his publications check out http://personal.psu.edu/dhk3/cv/cv_pubs.html
Yes, DHK has written many things on many topics. But I would like to focus on his less formal writings from his blog Forensic Science, Statistics & the Law.