EQUALITY OF ARMS?
“One of the elements of the broader concept of a fair trial is the principle of equality of arms, which requires each party to be given a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his opponent”
Does the Criminal Justice system work to ensure that a defendant is working, “under conditions that do not place him or her at a substantial disadvantage”? Insofar as the use of forensic experts, the answer is an emphatic no.
Although many people regard science as objective and impartial, this is very far from the case. Different scientists can arrive at very different conclusions from the same ‘objective’ evidence. Even DNA profiling, claimed by some to be infallible, isnot as objective as you may think; especially when the question of how DNA came to be on an item.
The police have access to their own labs which can be supplemented with almost any expertise (no matter how dodgy the ‘science’). The police lab staff are the only ones to have the opportunity to examine the evidence in its original form, to decide what and how to test, produce the results, and to discuss with any or all of their colleagues what the results mean.
The defence? Rarely will the defence have the opportunity to employ more than one expert for the same issue.
It would appear that the police can engage whatever expertise they regard as appropriate, but that degree of ‘equality of arms’ is not available to the legally aided defendant.
Before submitting an estimate to solicitors requesting opinion for legally aided requests we routinely ask for copies of the Crown reports so that we can make an informed assessment not only of the likely cost, but also the scientific purpose in providing such assistance.
It is recognised that there isn’t much public, and hence political, support for Legal Aid. The fact that it is used sometimes to defend the apparently indefensible creates an unfortunate image of public funds being used to, “get the guilty off”. That may be so, but there is a phrase in business that, “80% of advertising is wasted, the problem is we don’t know which 80%”. Surely, the same is probably true of Legal Aid: we know that some of it may be ‘wasted’, but there is no real mechanism of knowing how much.
Of course it is not proposed here that the defence should be given carte blanche to engage whatever expertise they wish. The simple solution is that the defence solicitor should be allowed to state their preferred expert. This expert can be compared on a true like for like basis, including qualifications and the actual work to be performed, with another.
Surely the real measure of cost effectiveness, at least for the moment, is that the accused is given the same opportunity as the prosecution to choose their experts. Do we want the best criminal justice system or the cheapest? It is almost certain that the two are mutually incompatible.
The situation is even worse when new techniques are being introduced, or challenges are sought to processes that have until recently been regarded as reliable (e.g. fingerprints). The situation has been superbly appreciated and described by Professor Erin Murphy who, although writing from an American perspective, has identified the realities of the legal process insofar as the introduction of new techniques is concerned:
“In every jurisdiction, the prosecution function is consolidated in a central figurehead. … Nationwide, then, a forensic technique’s proponent in a particular jurisdiction is essentially a single litigant: the prosecutor. …
This centralized, institutional role well positions the government at the inception of a new technology to ensure that the methodology is thoroughly and adequately presented to -- and therefore accepted by – the courts. The prosecutor can consolidate resources to present the strongest case possible for admission. She can assign specialized or multiple counsel, work collaboratively with scientists to develop arguments and theories in support of the technique’s admission, or decide not to seek admission until conditions are optimal. The prosecutor can actively “forum shop” a new forensic technique by choosing those cases and those courtrooms -- indeed, those judges -- most likely to be receptive to the proposed technology. A prosecutor eager to see a technology accepted might even choose test cases with reference to which defense lawyers seem the least likely to pose a formidable adversary.
At the same time, the very structural dynamics that well equip the prosecutor to argue in support of novel scientific evidence in turn undermine the defense’s ability to fight meaningfully against it. Unlike the prosecutorial function, the defense function is typically diffused among paid private practitioners, or localized central offices. In many jurisdictions, defense attorneys are not even repeat players within the criminal justice system, but rather take criminal cases only when required by the courts. This decentralization of the defense function impedes any concerted and comprehensive defense response to new forensic techniques at the critical moment when a new technique gains momentum. Coordination of the initial defense response to a new government technique therefore occurs, if at all, with much less frequency.
This may be particularly true in the early stages of a technique, when the government has its tightest grip and the only literature about the development or validation of the method is that generated by the government. Thus not only may the defense attorney’s own perspective on a methodology’s legitimacy be distorted, but even the skeptical attorney may encounter a dearth of critical analyses.
Unarmed with legitimate contrary voices, and often confronted with the popular misperception by judges that forensic laboratories, and those they employ, are neutral “scientists” rather than partisan advocates, the advocate is ill-positioned to mount an effective challenge.”
These problems are exacerbated in the UK by the concentration of police science in only three main commercial suppliers in England & Wales, the state-owned Forensic Science Northern Ireland, and the Police-owned laboratories in Scotland. Ironically, they come together as an association (the Association of Forensic Services Providers) purporting to,
“ represent the common views of the providers of independent (i.e. non-police) forensic science within the United Kingdom and Ireland with regard to the maintenance and development of quality and best practice in forensic science and expert opinion in support of the justice system, from scene to court”
How that independence is preserved when each member organisation is wholly dependent on the police for funding and indeed in Scotland is owned by the police is somewhat opaque. Indeed, the dependence is clearly illustrated by the closure of the FSS Ltd (a government owned forensic science organisation) when it had insufficient police contracts.
The limitations on the defence are compounded by the recent urge to reduce spending on Legal Aid, yet the importance of a thorough defence assessment has arguably never been greater given the worrying decision in Nunn that has already encouraged the police to prevent access to material to enable the preparation for criminal appeals. That judgement, used by the police in recent cases in which we have been involved is quite clear on when expert evidence is to be assessed;
" The time for that investigation and examination was the trial. ”
If the resources for defence solicitors is hampered in both quality and quantity, not only will they be disadvantaged at trial, but also in any attempt at appeal. Equality of Arms should not just be a principle, the system must ensure that it is practiced.
(This page was prepared as a preliminary to a session at the Bond Solon Expert Witness Conference 2012 to be chaired by Professor Jamieson.)
October 2012