Forensic Science and Miscarriages of Justice Article Review

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Forensic Science and Miscarriages of Justice: Some Lessons from Comparative experiences Introduction “Forensic Science and Miscarriages of Justice: Some lessons from Comparative experiences” It is written by Kent Roach, is Professor of Law at University of Toronto. He is former Director of Research for the Inquiry into Pediatric Forensic Pathology in Ontario (2008). The article is a critical analysis of NRC report[1] with comparative experience[2] of administration of Forensic Science in United Kingdom, Canada and Australia. The NRC report mainly focused on its recommendation of federal regulation of the forensic labs, which is governed by state governments and police departments. This article pointed out some issues related to effects of not taking contemporary other systems of regulations of forensic sciences in consideration for comparative study as it might have revealed some unique challenges which may be faced by United States, as challenges related to radical decentralization of administration of criminal justice system and forensic sciences and another challenges related to disciplinary defragmentation of the forensic science without taking scientific and regulatory issues in account. Limitations This article review is mainly focused on the issue of miscarriage of justice which may take place due to this novel and ever developing science. As present article has some limitations in research pertaining to Indian scenario, this article is mainly focused on system and regulation of forensic sciences and criminal justice system in United States whereas, my study and research is inclined toward administration of forensic sciences and criminal justice system in India. In this article review I have tried to make a comparative analysis of U.S. criminal justice system and forensic science with India Chapter -1 Administration of forensic Sciences in India and a comparative analysis with United States and United Kingdom In this article recommendations of the NRC report[3] and their relevance, some observations of author’s himself and effects of some changes which are recommended by this report are critically analyzed in four parts. In the first part this article author examined the issues related to fragmentation of forensic science discipline by discipline and jurisdiction by jurisdiction. As administration of forensic sciences in The United States is taken care by the State authorities not by the federation, which is as suggested, are required to be governed by federal government. A common regulation system of forensic sciences and monitoring is recommended by this NRC report. The monitoring structure not only includes the quality assurance but also monitoring of courtroom testimony and languages used in those proceedings. In India the administration of forensic sciences is done by central government as well as by State governments. For this purpose four major Central Forensic Science Laboratories were established and later on three other laboratories were also established. Four out of these seven laboratories handles different disciplines of the sciences. Six laboratories are governed by Directorate of Forensic Sciences Services under Ministry of Home Affairs and one i.e. CFSL Delhi is controlled by Central bureau of Investigation.[4] States in India also have their own forensic science laboratories governed by state government itself under control of Police organization[5]. The major criticism faced by Indian system of regulation of forensic is that it is in tutelage of police organizations and as criticized by Dr. T.R. Baggi former Director of Hyderabad CFSL that, “police used and continue to use forensic science if it suits them”.[6] There is no access of expert science to the accused and this may cause prejudices to the justice. A requirement of monitoring is always felt. It is necessary to understand the need of court and what is being supplied to the court. In this field a few steps are taken. In United Kingdom For the purpose of quality assurance better resources, training, research governance and independence of the science lab appointment of Forensic Science regulator was made who is not only be responsible for quality assurance but also for hearing the complains regarding the same. This mechanism does not provide for the continues monitoring of courtroom testimony including the misleading languages. In India Directorate of Forensic Science Services in responsible for quality assurance as well as grievance redressal but there is no third independent body to monitor the use of sciences. Chapter – 2 Impediments to the development of Forensic sciences in India A very rhetoric comment made by Dr. T.R. Baggi[7] that forensic science in India is an ornamental and cosmetic utility of the investigation agencies[8]. It is very much true with regard to Indian Forensic science administration system and criminal justice system that it is mainly used to support the prosecution story. It is not being utilized in its own right with the full thrust to help the investigating law enforcement agencies and the criminal justice system. It is showcased and remembered only when major and sensational crime occur to satisfy the inquisitive and demanding media and citizens Forensic Science became a very isolated stream of science which has some specific sections as Ballistics, Chemistry, Physics, Toxicology, Computer sciences etc. This kind of Disciplinary fragmentation, which is common in many countries like U.S., U.K., Australia and India, resulted in stagnation. Because of the improper vision, outlook and obsolete policies forensic science has failed to progress when compared to other disciplines of pure and applied sciences.[9] There is a requirement of giving freedom, encouragement and better infrastructure to this field of science and by this it can develop as other branches of pure and applied science as computer science, space science, atomic science etc. In the NRC report also more emphasis is given on avoiding disciplinary fragmentation and rejoining this stream with applied science. Forensic Science in India is suffering from lack of resources, man power, poor infrastructure, and absence of proper national policies and support. Poor infrastructure and lack of better career opportunities became reasons for forensic labs not being able to attract talented scientists. There is requirement to provide human resources to this field and for this purpose forensic science education system has to be revived.[10] In the field of forensic science education only two universities were offering masters, research and Ph.D. programmes till 2008[11]. These institution were in tutelage of police organizations and administration due to which not exposed to the scientific culture and due to that these institutions couldn’t develop like scientific organization. In the Perspective plan for Indian forensics presented to Ministry of Home Affairs in 2010[12], some suggestions as to development of forensic science in India were made and accepted by government also. For the purpose of infrastructural development three new FSLs[13] were established in Bhopal, Guwahati and Pune. These labs are suffering from lack of infrastructure and depleted manpower. In that particular report one suggestion as to the privatization of the forensic laboratories was made. This suggestion was made by looking at developed nations, but the issue remains that it is perilous and any compromise will jeopardize the whole criminal justice system in the country. Private sector in developed nation is being used to the minimum extent, as their own systems and labs are fully developed which is not the case with India.[14] Chapter – 3 Importance of adopting foreign experiences Two cases firstly Daubert and secondly Paul Morin cases raises some very fundamental questions before the criminal justice system that, what should be admissible and what is not? And another is up to what extent court can rely on those testimonies. Forensic science work as aid to the criminal justice system increases the quality of evidence produced and certainty of proof but there always remains a chance of error. Up to what extent this error is acceptable and up to what extent injustice is acceptable. Such cases produce challenges in application of sciences before every nation where science is being used as an aid to justice. Indian Forensic Science stream is suffering from both lack of technological advancement and infrastructural development. In such system there are greater chances of errors and it may jeopardise whole criminal justice system in country. In this situation it is very much required to utilize the foreign experiences and find ways to minimize error in administration. In the fourth part of the paper relevance of the Daubert v. Merrell dow Pharmacuticals Inc.[15] case was examined. A ‘comparative experience’ of adoption of principles laid down in this case by Canada, is examined with respect to United States, which is reluctantly accepting the contribution of principles laid down in Daubert case[16]. In this case two persons Jeson Daubert and Eric Schuller who were born with some birth defects of limb reduction. The birth defects were caused due to their mother who had taken a particular drug which was prescribed for morning sickness (Bendectin). They offered expert testimony at trial. That particular testimony had not been published and the research had only been done after the beginning of litigation. Whatever decided by the court is known as Daubert Guidelines. This case gave some effective and precautionary guidelines for the admissibility and strict assessment of expert opinion and proposed witness. These guidelines were though very strict but very necessary to remove slightest possibility of wrongful conviction. Court observed that prior to the admission of expert opinion it should be ascertained that derivation of findings must be based on scientifically valid principles, it has been generally accepted in scientific community, it has been and can be tested, and it must be peer reviewed and published and the most important of these guidelines is that whether known or potential rate of error acceptable? Author in the second part of the article pointed out some questions on quantification of error rate and reliability of expert opinion. As NRC report suggested the establishment of quantifiable measures of reliability and accuracy of forensic analysis and quantifiable measures of uncertainty in the conclusion of forensic analysis.[17] This was questioned previously in Ontario Pathology Report by Justice Stephen Goudge.[18] He put some precise question that how would Pathologists quantify and express the degree of certainty behind their opinion about cause of death?[19] He also pointed out that legal standard of proof beyond a reasonable doubt has no relation with science and medicine. This report explores the difficulties of subjecting forensic pathology to the quantifiable measures of reliability and uncertainty that the NRC recommends be developed for all the forensic sciences.[20] Justice Stephen Gaudge recommended for a multidisciplinary work to be done for better understanding and accuracy. This NRC report gave two reasons for its pessimistic view on Daubert case[21], firstly that appellate court defer to admissibility decision made by trial judges and secondly that stricter admissibility standards, when applied in criminal cases, generally excludes expert testimony offered by accused.[22] This threshold reliability of expert requires assessment of (i) reliability of the proposed witness; (ii) the field of science, (iii) opinion offered in particular case with the attention paid to the limits of the proposed witness’s expertise and the language used to express opinion. This type of strict assessment is generally applied in case of novel scientific development and leading cases in which evidence produced by the accused. A wrongful conviction is more grave injustice than wrongful acquittal. As forensic science is a novel stream and this ever developing technology explores not only future horizons but also strikes down the old technologies and their conclusions. In Paul Morin’s case[23], Guy Paul Morin was convicted for the charge of rape and murder of a 9 year old girl in 1984. At the trial court he was acquitted but later on convicted by appellate court. The appellate court gave importance to the expert testimony of hair and fiber analysis which found from Morin’s car with the deceased girl and solely on that basis he was convicted. Later on new DNA profiling technique developed and he on his own expenses got tests done and produced report in court. On this development court observed that previously used technology was very much irrelevant and not competent to be admitted as evidence in the court. DNA test conclusively made clear that DNA of girl and hair recovered from Paul’s car does not match. He was acquitted. Guy Paul Morin’s case was an example that how a peer reviewed research can also be misused or misinterpreted. It is not only lack of research but misinterpretation can also lead to wrong conclusion. As author of hair and fiber analysis research testified in this case that their study had no relevance with the Paul Morin’s case. We can find that the same forensic science which is used as aid to criminal justice, in this way can works against the system. Later on Kaufmann commission[24] found that Forensic Center’s role in conviction of Paul was substantial. The findings of the analysts were overstated and misunderstood by police, prosecutors, and the courts. Contamination problems were not disclosed. Later on it was accepted that such error rate should be used only for acquittal not for the conviction Chapter – 4 Conclusion Forensic Science as an aid to the criminal justice system is very useful but any kind of error can also in this science can lead to injustice also. It was suggested in NRC report about defragmentation of disciplines of the forensic science and use of multidisciplinary disciplinary work to reduce error rate. It was suggested for reconciliation of this isolated stream of science with applied science. By this reconciliation of streams path for the new developments and new research will be opened and science as a whole become aid to the justice system. It is required that any testimony given as an expert opinion must be based completely scientifically established principles. For this purpose both court and prosecution must be aware about developing technologies, their uses and misuses. Some administrative changes in this field also can help in minimizing the chance of error. Such administrative changes are as Unified administration of Forensic science labs, establishment of monitoring mechanism for quality assurance. Some problem in forensic sciences are common to all systems and in such situations it is very important to observe experiences of others and learn lessons from them, because in this system there are no chances of commission of mistakes. Page | 1
[1] National Research Council Report, “Strengthening the Forensic Science in the United States: A path forward”2009. Authored by Committee on Identifying the Needs of the Forensic Sciences Community, National Research Council [2] Comparative experiences refers to the similarities and differences revealed by the study of comparative law or jurisprudence. [3] Committee on Identifying the Needs of the Forensic Sciences Community, National Research Council Strengthening Forensic Science in the United States: A Path Forward available on http://www.nap.edu/catalog/12589.html [4] Central Forensic Science Laboratory (CBI) New Delhi (April 15 2014) http://cbi.nic.in/cfsl/about.htm [5] T. R. BAGGI ‘Revamping forensic science in India’ The Hindu (May 24, 2008) This point was also inferred from official websites of various state forensic science laboratories Andhra Pradesh – forensic science lab is in direct control of Director General of Police (15/4/2014 at 8.36 AM) < http://www.apfsl.gov.in/organisation.html> Madhya Pradesh - forensic science lab is in direct control of Director General of Police (15/4/2014 at 8.36 AM) <http://www.mppolice.gov.in/static/Fslsagar.aspx> [6] Dr. T.R. Baggi “Why is forensic Science is stunted and static in India?” The Hindu Sept. 11, 2011 < http://www.thehindu.com/todays-paper/tp-features/tp-openpage/why-is-forensic-science-stunted-and-static-in-india/article2443599.ece> [7] Former Director of Hyderabad CFSL [8] Supra note 6 [9] T. R. BAGGI ‘Revamping forensic science in India’ The Hindu (May 24, 2008) [10] Supra note 9 [11] After 2008 few other universities also started offering courses in Forensic science as Panjab University, Banaras Hindu University, Gujarat forensic Science university etc. [12] Dr. Gopal Ji Misra & Dr. C. Damodaran “PERSPECTIVE PLAN for INDIAN FORENSICS” Final Report presented to the Ministry of Home Affairs Government of India JULY 2010 (April 15,2014) http://www.mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/IFS(2010)-FinalRpt.pdf [13] Forensic Science Laboratory [14] Supra note 6 [15] Daubert et ux., individually and as guardians ad litem for Daubert, et al. Vs. Merrell dow pharmaceuticals, inc. 509 U.S. 579 (1993 ) [16] Ibid. [17] Supra note 3 pp 80 [18] Commissioner Stephen T. Gaudge Inquiry in to Pediatric Forensic Pathology in Ontario (April 13 2014) http://www.attorneygeneral.jus.gov.on.ca/inquiries/goudge/report/v1_en_pdf/Vol_1_Eng.pdf [19] Ibid. [20] Supra note 2 [21] Ibid. [22] Supra note 5, pp. 87 [23] R. v. Morin [1988] 2 S.C.R. 345 [24] Fred Kaufman, Report of the Kaufman Commission on Proceedings Involving Guy Paul Morin (1998)
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