Improving the law on expert evidence

Since judges and lawyers do not have expertise in forensic science, they may struggle in meaningfully scrutinising forensic evidence. A legal framework that examines if the technique is scientifically valid, whether the examiner is ‘skilled’ in the concerned forensic discipline, and if the examiner has reliably conducted the forensic examination in the case at hand, is essential.

In 2014, a Forensic Evidence Working Group comprising judges, forensic scientists and legal professionals developed a Practice Note on expert evidence in criminal trials. The Note was introduced with the aim of enhancing the quality and reliability of expert evidence. It applies to criminal trials in the Supreme and County Courts of Victoria, Australia.

An important part of the Note is its delineation of the duties of the expert, which include impartially providing the court with an objective opinion. This duty is framed as an ‘overriding obligation’ to the party which commissions or pays the expert. In the context of a criminal trial, this is of paramount importance as the prosecution experts are in close contact with police and investigating officers and may feel pressured to assist in securing a conviction.

With respect to service of expert evidence, the Note provides that the primary expert report must be provided to the other side, no less than sixty days before the commencement of trial. In India, given the challenges faced by forensic science laboratories in terms of infrastructure, manpower and budget, there are often delays in submission of forensic reports which leads to such reports being submitted late into the process of trial. In such cases, the defence may not get a sufficient opportunity to prepare its strategy on challenging such evidence.

The Note also outlines, in detail, the content of all expert reports. It includes providing details of examinations and tests on which experts have relied as well as the limitations relating to the techniques used. To be able to analyse expert evidence, access to such information is essential.

An interesting aspect of this Note is the provision on pre-hearing discussion on expert evidence. The Court has the power to direct the experts (if there are more than one) to discuss the issues together and prepare a joint statement identifying the matters on which they agree and disagree.

While the process of legislative change is slow and cumbersome in most jurisdictions, the creation of such rules which are approved by a superior court can go a long way in ensuring the admission of reliable forensic evidence in trial.