Forensic Science Evidence, Wrongful Convictions and Adversarial Process

By Hamer, David; Edmond, Gary | University of Queensland Law Journal, December 2019 | Go to article overview

Forensic Science Evidence, Wrongful Convictions and Adversarial Process


Hamer, David, Edmond, Gary, University of Queensland Law Journal


I INTRODUCTION

Criminal litigation in Australia operates on a broadly adversarial basis. While not unqualified, the adversarial ethic permeates all stages from investigation through trial to appeal and post appeal. The adversarial design serves the goals of individual autonomy and finality while, at the same time, purportedly resolving disputes accurately. However, the recent wave of exonerations across the common-law world reveals that the goal of factual accuracy is achieved less frequently than was once believed. (1) Indeed, examination of errors, and the system's response to them, lends support to the proposition that the adversarial system may sacrifice accuracy in the pursuit of autonomy and finality.

The system's treatment of forensic science evidence provides valuable insights into its dynamics, its goals and how well it is achieving them. As wrongful conviction data shows, forensic science and medicine evidence may play a double role, both villain and hero. (2) One particular application of science to law, DNA profiling, is a founding hero of the innocence movement, (3) and has contributed to hundreds of exonerations in the United States. (4) At the same time, analysis of what went wrong in those cases implicates other forensic science as a longstanding villain. (5) The United States National Registry of Exonerations, with well over 2,000 cases going back to 1989, features 'false or misleading forensic evidence' as the fourth most common factor (after lying witnesses, official misconduct, and mistaken eyewitness identification), appearing in almost one quarter of exonerations. (6) A series of recent high-level independent reports into forensic science evidence reveals that, beyond DNA evidence, much of it lacks solid scientific foundation--having not been shown to be valid and reliable. (7)

Outside the United States, DNA exonerations are less common. (8) As in the United States, forensic science evidence has sometimes belatedly helped with correction. However, prosecution forensic science evidence, and sometimes the performance of legal personnel, has been deeply problematic in many trials, even by standards prevailing at the time. (9) Prominent examples include the conviction of Edward Splatt for murder in 1978 and the convictions of Lindy and Michael Chamberlain for murder and as an accessory after the fact respectively in 1982. These convictions were upheld on appeal, but subsequent Royal Commissions subjected prosecution forensic science evidence to much criticism. (10) Splatt was pardoned and the Chamberlains were acquitted in an exceptional subsequent appeal. (11) (Defendants are ordinarily only entitled to a single appeal. (12))

More recent exonerations have also identified forensic science evidence as a key contributor to error. Henry Keogh, convicted in 1995 of the murder of his fiance, had his conviction overturned in an exceptional subsequent appeal in 2014 by the South Australian Full Court. The Court concluded that 'the trial process was fundamentally flawed. A number of highly significant observations and opinions of [forensic pathologist] Dr Colin Manock materially misled the prosecution, the defence, the trial judge and the jury.' (13) In the Australian Capital Territory, David Eastman, convicted more than 20 years ago for the murder of the Deputy Police Commissioner, had his conviction overturned in 2014 following a judicial inquiry that focused heavily on prosecution gunshot residue evidence, and was acquitted on retrial in 2018. The inquiry had 'a devastating impact upon the reliability and the veracity of the trial evidence given by [prosecution forensic scientist] Mr Barnes', (14) revealing he had 'behaved in a manner totally inconsistent with the independence of a forensic expert. He identified himself with the prosecution and plainly demonstrated his bias in favour of the prosecution.' (15) Currently, there is a pending appeal in relation to Sue Neill-Fraser's conviction for the murder of her partner in Tasmania, (16) and an inquiry was recently held into the convictions of Kathleen Folbigg, for the deaths of her four children, in New South Wales. …

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