We provide examples in the consultation paper of a number of miscarriages of justice in recent years where prosecution evidence of doubtful reliability has been placed before Crown Court juries. [See Part 2 of the consultation paper.]
We are interested in your experiences with expert evidence in criminal trials. Without giving sensitive details, what examples of unreliable expert evidence have you come across in practice?
I have seen "experts" prepared to testify on numerous things that there was no basis for. Examples include the use of dolls in sex abuse allegations, profiling, and attributing physical qualities of genitaliy to abuse, before there were any studies of "normal". I have also had prosecutors attempt to introduce into evidence medical test results that were broad spectrum, rather than forensic.
Yes. I have two separate cases, although the first never reached a jury as it was re-directed to a family court.
(1) I have seen an expert commit scientific and legal fraud by misrepresentation of evidence. The case was one of child abuse of various types. The evidence included a small file of the following evidence groups: (a) drawings and essays made by a primary school child during art and literacy (b) test results made by a child psychologist in the form of matching pictures of faces to emotions (c) reports [sic] of photographs of infantile genitalia taken in hospital purporting to show damage by intromission of foreign objects (d) reports of lab tests showing positive test for routine microbial infection of female genitalia.
The fraud was primarily perpetrated in (b). The test results consists of two or more repeated tests spread over several weeks. In the trial only some of the results were shown, namely those that the expert interpreted as implicating the accused parents. Other results, from identical tests taken at a different time with the same child by the same expert, but having an exonerating interpretation, were not supplied in court nor made available to either counsel. These results showed up three months after the case was heard, namely some three years after they had been taken. The expert had clearly fraudulently concealed information which was incompatible with the outcome the expert was being paid to provide. There was a police inquiry, which is active at the moment, and this led to the revelation that evidence group (c) was also falsified, in that the photographs did not exist at all, and the hearsay reports were invented to suggest that the photographs existed and were incriminatory. Evidence (c) was never, in the event, presented to court for other reasons and its falsehood came to light only during the police investigation into (b). Evidence (d), which tended to exonerate the accused by virtue of showing an alternative reason for genital inflammation, was originally withheld from counsel. The whole case originated from evidence group (a)which triggered a child protection inquiry. In fact, evidence (a) was in reality entirely benign, being the result of over-zealous or mis-trained teachers misinterpreting normal childhood scatological language and imagery as indicative of exposure to abuse. Further investigation exposed a sort of "feeding frenzy" which, once abuse had been suggested, led to several experts vying to come up with even more evidence, resulting in ambiguous or even benign indicants, which would in isolation have been discounted, being perceived as indicative of abuse.
The case was discontinued by the police as a criminal case before reaching the courts, but transferred by the local authority to the Family Court, where a delay of a further three years took place. Even though both parents were eventually found by a family court judge not to have caused any injury or pose a risk to the child, all the children, who had been transferred out of their house since the first accusations were made some three years earlier, were deemed to have been re-settled in their temporary home and were never returned to the family.
Either that expert, or a colleague or peer, stood to gain financially by about £25000 had the abuse been proved, this being the cost of an "abuse recovery course" that might have been provided.
Case 2
This is a case in which an X-ray image of a small baby of a few weeks showed up a small depression of one of the bones in the skull which the prosecution was attempting to portray as probative of non-accidental injury by a parent. The case reached a full trial in the criminal court. The expert did not draw the attention of the jury to several other possibilities, notably the fact that the baby had just had been delivered by emergency Caesarean after a failed natural and then failed forceps delivery, which could possibly have been an alternative cause. The expert also dismissed the notion that the depression might have been caused by the agreed head banging and limb thrashing during the precautionary X-ray. It is not clear if the expert was even informed of the delivery complications at any stage, which were presented to the jury after the expert testimony. Nor did the expert point out that, though uncommon, misaligned skull bone is an occasional natural product of foetal development and normal birth and, left unattended, is self-rectifying within a few weeks.
In relation to this case, the expert did not comprehend the grand circularity of the argument that she was putting forward regarding "literature". That is, she was judging the scan mainly against other scans used in cases which had been resulted in a guilty verdict or where the case had not gone to trial. What she did not seem to realise is that (a) some of these cases may have depended solely or mostly on the evidence of her peers or her herself (b) the jury may have had convincing other evidence of guilt despite their considering the scans unconvincing (c) she needed to consider cases in which scans were interpreted as evidence of abuse, yet the jury returned a not guilty verdict, or the case was dropped before a trial.
Thank you very much for your post and contribution to our discussion.
How do you think the Law Commission proposals in the consultation paper would affect the outcome of cases such as these? In particular in relation to your second example, do you think that the provisional proposal for a new admissibility test would have had an effect on the outcome?
Do others have any views on this, or other experiences to share?
I am concerned where expert opinion is used as fact, even though it may be divided. Peter Ablett is quoted as saying there are only 3 ways to prove a crime, reliable eyewitness, confession or forensics.
In my research I've noticed that in many cases where conviction is overturned, it's overturned based on faulty or biased expert opinion. That is where experts do not fulfill their obligation to the court by providing the court and jury with the flaws in their opinion or provide the known alternatives.
These are experts who may be Solon trained and well qualified but who provide opinion to support their paymasters case instead of giving an unbiased opinion covering all areas.
This problem needs addressing too surely.
We have done extensive work on research into miscarriages of justice in Australia.
The full text of the book "A State of Injustice" 2004 is available here:
http://netk.net.au/soi/soi.asp
This covers about a dozen cases of faulty expert evidence.
The full text of the book "Losing Their Grip" is available here:
it focusses on the case of Henry Keogh.
We are currently completing a book comparing approaches in the UK, Canada and Australia to responses to miscarriages of justice in conjunction with Julie Goulding, Commissioner, CCRC and Prof Roach of Toronto University who was research director for the Goudge Commission in Canada.
Our web site has a wide range of materials covering legal and forensic issues from those jurisdictions.
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