Impinging on the Court’s authority

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.” 

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Propositions — key to the evaluation process

One of the key elements in the logical approach to evidence evaluation are the propositions used for the evaluation. They are, in a certain sense, the most important part of the whole process. At the same time, they are also one of the least understood.

Scales balancing Evidence

Today’s post explores the concept of propositions. I will attempt to describe what they are, how they are used, why we don’t change them once set and why they matter so much, among other things… all from the perspective of forensic document examination (though also applicable to other forensic disciplines).
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