Law Times

Law Times • December 2, 2013 Page 5 NEWS Major flaws in forensic approaches Rule change called for Continued from page 1 Fellow panellist Barry Scheck, a law professor at the Benjamin N. Cardozo School of Law in New York City and cofounder of the Innocence Project, said voice-print identification was discredited after the United States National Research Council convened scientists who examined the literature "and basically said, 'You can't do this.'" The prestigious research council also found serious flaws in composite bullet lead analysis. There's now a "duty to correct" false presentations in the forensic scientists' code of ethics, according to Scheck. As for arson, infamous cases like the 2004 execution in Texas of Cameron Todd Willingham in the burning death of his three children brought fire investigation techniques into question, he said. The National Fire Protection Association has corrected many "phoney visual cues that so-called arson examiners have been using," said Scheck. And bite-mark forensics will never be validated, according to Scheck. A whole set of forensic disciplines may eventually be scientifically verified once again, "but it's going to look nothing like the cases that are already in the books where people have been convicted," said the defence attorney. Saks cited the work of psychologist Itiel Dror. He gave five fingerprint examiners pairs of prints they had identified as matches in previous cases. But researchers told them they were actually from the infamous FBI misidentification of Brandon Mayfield, a man wrongly linked to the 2004 Spanish train bombings. Three experts said the fingerprints weren't matches. One said they were inconclusive. Only one identified the prints as from the same person. Forensic examiners protest they can't look at samples without knowing something about the case, said Saks. That's fine, he said, but they should first be examining the samples blindly. They can then be gradually unmasked with additional information. Scheck said even fingerprint experts acknowledge a falsepositive rate of 0.1 per cent. Nonetheless, fingerprint identification databases "can be a gold mine" for generating leads on alternate suspects when lawyers are trying to clear the wrongly convicted, said Scheck. Saks advised defence lawyers to learn the weaknesses of specific techniques. "I have heard experts testify to things that their own field, in its textbooks, says they cannot do." The problem is lawyers can't be experts on everyone's expertise, Saks added. He advised lawyers to band together in knowledge networks. He recommends interviewing the examiners. "Ask them to tell you everything they can tell you about how they reached the decision that they reached." If at all possible, lawyers should have a consulting expert of their own, he added. Once in court, Saks advises lawyers to seek to exclude pattern comparison evidence like bite and tire marks and handwriting; ask the judge to order a blind examination of the evidence, which often involves getting into the case early before the samples have been submitted to the expert; seek an order placing limitations on what the expert can say about the inferences; request a ban on certain overpowering or exaggerated conclusions such as declaring something to be a match; and try to limit the expert's testimony to things for which there's an empirical and tested scientific basis. Panel moderator and prominent Toronto criminal lawyer Alan Gold said defence counsel share some of the blame for not studying the increasingly robust scientific literature relevant to their cases. "There is now no excuse whatsoever," said Gold. In an earlier conference speech, Stephen Bindman, special adviser on wrongful convictions at the federal Justice Department, gave what he called a simple message: Canadian Crown prosecutors care about wrongful convictions, too. "I think increasingly the Crown community like everyone else recognizes that wrongful convictions are a part of our system. They are not just isolated one-offs," said Bindman, who stressed he was speaking for himself and not the government. Nevertheless, Bindman added that "not everyone gets it and, yes, there will be legal fights that many of us wish wouldn't have to be fought." LT Continued from page 1 "We're all invested in the competence of each other, so I'd like to see Rule 6 [of the Rules of Professional Conduct] amended so that it includes an obligation on the part of all lawyers to accept requests from other lawyers for advice provided that the other lawyer is not in an adversarial and conflict situation." The law society could establish a mentorship program of that kind simply by incorporating an obligation to mentor peers into the certified specialist program, Akazaki suggests. The law society should also envision a mentorship program that breaks out of the traditional format largely aimed at articling students and junior lawyers. "You have to provide a forum for mid-level and senior lawyers to take part and ask for advice because the competency and professional standards criteria of the law society is not just about educating students and young lawyers," he says. "My experience with mentorship programs is that 90 per cent of the people who sign up for them are law students who are either in law school or articling students and they're not talking about practice-related questions. They're not talking about subject-area questions. They all want to hear about career advice," he adds. While career advice for young lawyers is an important part of mentorship, it doesn't necessarily tie in standards of competence and professional conduct, he notes. Law society benchers Janet Minor and Howard Goldblatt will be chairing the law society task force to look at mentorship. The task force has a budget to spend up to $30,000 for research and consultation needs. The task force is to come back to Convocation with recommendations no later than January 2015. LT Take conTrol of your nexT civil appeal wiTh canada's firsT comprehensive guide To The area CiviL AppeALs DOnAlD J.M. BrOwn, Q.C. Prepare for success with a specialist-level understanding of civil appeals. A lifetime of practice and teaching in the field of appellate law makes Donald Brown your ultimate mentor. He digs deep into the rationale behind the legal rules and principles governing appeals and explains them in frank, no-nonsense language to help you quickly grasp the underlying issues. 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