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scotkaz · Joined: 28 Aug 2008 Posts: 510

http://www.firmmagazine.com/features/532/3/Experts_in_the_dock.html

Experts in the dock
Donald Findlay, QC

Fingerprint evidence has moved from being sacrosanct to scandalous. Blood typing has been superseded by DNA, which in the future may prove to be more fallible than is presently understood. Donald Findlay QC urges lawyers to undertake closer scrutiny of forensic evidence today, to ensure there are no miscarriages of justice tomorrow.

In March of this year, a man walked free from an English Court. Sean Hodgson had spent 27 years in prison for a murder he did not commit.

This case should send shivers down the spine of everyone who cares about the criminal justice system, not just those who practise in it. DNA testing proved conclusively that the blood at the crime scene, so telling at the original trial, did not belong to Sean Hodgson. And to make matters worse, this could have been established 11 years earlier had not the Forensic Science Service wrongly indicated that the relevant samples were no longer available.

Throughout most of my working life I have been repeatedly challenged: “How can you defend all these guilty people?”

I have tried to explain about the presumption of innocence: that every accused is entitled to a fair trial: that it is for the jury to reach a view on the evidence not someone like me: that I believe that, short of killing one of its citizens, the worst thing that a society can do is to deprive the citizen of his liberty for a crime he did not commit: that in a free society the price we must pay is that it is better that ninety nine guilty men walk free than one innocent man go to jail. And a cynical shake of the head is my inevitable reward.

Now, if I am asked the same question, I will simply reply, “Sean Hodgson”.

There will be those in the scientific community who will hail Mr. Hodgson’s, albeit belated, freedom as a triumph for modern techniques. And to a degree, of course it is. But let us not forget, that science played a considerable part in putting Sean Hodgson in jail in the first place. The old system of blood typing which was in use at the time of his trial provided a strong link between him and the crime he did not commit. This must teach us all an invaluable lesson.

Today, science and technology is playing an ever increasing part in the criminal justice system. DNA, CCTV, call mapping for mobile phone calls, expert opinions in so called ‘shaken baby’ cases.

However, it is vital, I believe, that we bear in mind that science and technology are only as reliable as their state of development. What is cutting edge today may, in ten years time, be doubtful, dubious or even discredited. When Shirley McKie dared to challenge the previously unchallengeable system of fingerprinting, few believed she could, let alone would, succeed.

We lawyers must grasp two crucial obligations. We need to learn about science and technology and understand what it can tell us. And, perhaps even more importantly, we must not be afraid to challenge, however impressive the science or the scientist may appear to be.

I am often left with the impression that scientists are trying to take over criminal trials. I do not doubt the sincerity and professionalism of the vast majority but it is not their job to tell the jurors what they should do.

The DNA of an accused may be found on a blood stained murder weapon. This may well be described in a forensic science report as “Consistent with the accused holding the weapon at the time the fatal wound was inflicted.”

Doubtless.

But it may also be consistent with the accused holding the weapon days before the wound was inflicted or days after it was inflicted or never having held the weapon at all but rather it came into contact with his DNA by some secondary means. Yet the first impression the jury receives is that the DNA of the accused and the murder weapon are inexorably and fatally linked.

We must be wary of allowing the scientist’s microscope to dominate the scrutiny of the jury. Science is neither infallible nor sacred.

Science in the criminal justice system betrayed both Sean Hodgson and the unortunate murder victim. That should be incentive enough for all lawyers. Our response to the finding of DNA at a crime scene should not be, “Oh well!”, it should be “So what!”

If an accused maintains he has never been at a locus, he throws before us the gauntlet of finding an explanation. To what lengths should we go to find an answer?

Sean Hodgson!

Articles by : Donald Findlay, QC