People sometimes question whether forensic work is scientific in nature. Given that the overall discipline is called ‘forensic science’ this is an interesting, if rather meaningless, question. I say ‘meaningless’ because, practically speaking, it is a non-issue.
Why? Simply because a court may choose to admit anyone as an expert, whether their expertise is scientific, purely experiential, or something else entirely. Nonetheless, it is interesting to consider the issue, if only because forensic document examination is one of those disciplines where this is a common challenge — does it involve any “science” at all?
As a result, this topic is worth some discussion.
The 79th Annual General Meeting of the American Society of Questioned Document Examiners (ASQDE, Inc) was held August 10th to 12th, 2021. It was again conducted online due to the COVID-19 pandemic. The theme for this year’s meeting was “ASQDE_AGM 2.0 ver. 2021 – The Future is Now”.
One of the strangest things I have heard raised in argument against the logical approach is that use of the approach means the expert’s testimony will end up impinging upon the authority of the Court. I have heard this a few times recently. I find this particularly troubling because it has come from lawyers. Unfortunately, this has always happened in circumstances where I could not actually discuss the matter with them.
As an objection to the logical approach, this is the most unexpected thing I have ever heard, without a doubt. In reality, proper application of the logical approach is one of the few ways to ensure that this issue 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. Or, in other words, to impinge on the Court’s authority to make decisions about the ultimate issue (or ‘what happened’). To be sure, there is a legitimate concern that this could be a problem, particularly when the court is listening to an expert. As a result, the concept has been discussed literally for years and it is not a new concern.
In fact, it can be found in various codes and directives regarding expert evidence. Indeed, Justice Sopinka noted this precise 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.”
The 73rd Annual General Meeting of the American Academy of Forensic Sciences was held February 15th to 19th, 2021. It was an online meeting and had the theme of “One Academy Pursuing Justice through Truth and Evidence”.
The 78th Annual General Meeting of the American Society of Questioned Document Examiners (ASQDE, Inc) was held August 10th through 14th, 2020. It was a new type of meeting necessitated by the COVID-19 pandemic. The meeting was originally planned to be held in Frankenmuth, Michigan but a (very wise) decision was made to hold an entirely virtual meeting instead. The theme for this year was “Future-Proofing Questioned Documents”.
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.
The Canadian Society of Forensic Science (CSFS) is holding its 2018 conference and AGM in Gatineau, QC. I’m happy about that because it’s in my own backyard, so to speak.
CSFS conferences vary in their quality and content but this year is looking pretty good. For example, the keynote speaker is Dr. Claude Roux whose presentation is entitled ‘Will Forensic Science Reach the End of the Crossroads Soon?’ That’s a tremendous question. How would you answer it? Dr. Roux is sure to have an interesting perspective to share with us. Read more