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                            LexisNexisª Academic

                     Copyright 2001 Micromedia Limited
                   Canadian Business and Current Affairs
       Copyright 2001 Legal Resource Centre, University of Alberta
                                  Law Now

                               November, 2001

SECTION: v.26(2) O/N'01 pg 11-13; ISSN: 0841-2626

CBCA-ACC-NO: 5236756

LENGTH: 1438 words

HEADLINE: DNA evidence: balancing the scales of justice

BYLINE: Winterdyk, John; Holmgren, Janne A

BODY:
[Graph Not Transcribed]

''The end must justify the means''

- MATTHEW PRIOR (1664 - 1721)

Since the first Canadian criminal case involving DNA evidence in 1989,
there has been a steady growth in the number of cases relying on it. While
our criminal justice system is embracing the use of DNA evidence in
criminal trials, there are causes for concern, some of which are outlined
in an earlier article where we examined some of the impacts that DNA
evidence has had on the criminal justice system and which categories of
legal professionals supported and opposed the use of DNA evidence. We
concluded that the subjects showing the most support towards DNA and its
reliability and admissibility were the ones who were most familiar with
DNA testing and DNA as evidence as a whole (Holmgren and Winterdyk, LawNow
(18:7) 1994).

In this article, we took a more pratical stance by interviewing 22 defence
lawyers in seven major cities across Canada. All of the interview
participants had defended or entered guilty pleas in at least two cases
involving DNA evidence. The objective of this study was to examine the
impact the extended use of DNA fingerprinting has on defence counsels'
ability to defend their clients when DNA is part of incriminating
evidence. Findings: Defence Counsels' Continued Battle to Balance the Scales
of
Justice

One of the themes that evolved throughout the interviews was the parallel
between the assessment of the actual evidence and the need to understand
the assessment. In essence, if one does not understand the evidence, it
becomes difficult to engage in effective direct examination and
cross-examination of the evidence when it is presented. The resulting
vulnerability creates the feeling among defence counsel that DNA evidence
is so overwhelming that it is not possible to contest the evidence in
court. This is particularly true in Canada, where ''the admissibility of
novel scientific evidence has been considered in detail in surprisingly
few Canadian cases'' (Gatowski et al., in Expert Evidence: The
International Digest of Human Behaviour Science and Law, 4, 1996). This
further supports the suggestion that the legal system has difficulty
keeping up with this continuing state of development with regards to the
changes that are so rapidly occurring within the expanding areas of
forensic sciences.

The interviews revealed both the importance and the difficulty of lawyers
becoming educated about DNA evidence. For example, one lawyer described
the endless amount of hours he had to research material and read in order
to be able to adequately defend his client.

Defence counsel, in challenging DNA evidence, have tended to focus not so
much on the techniques used for the actual extraction of DNA, but on
probability statistics. For example, one defence counsel was successful in
having the highly seductive probability statistics eliminated from two
cases in eastern Canada.

The assessment of DNA evidence depends upon the knowledge of how it works.
A person interviewed from a private laboratory that processes DNA evidence
for both Crown and defence counsel commented on the issues of the limited
knowledge of defence counsel. This person noted that funding is a major
issue for defence counsel. Many of the defence cases are funded by Legal
Aid, and as a result, the lawyers are limited in paying for their needed
resources and educating themselves on issues surrounding DNA evidence.

Based on the interviews, it appears quite evident that defence counsel
require assistance in assessing DNA evidence. However, another critical
issue that emerged was access to independent experts.

The ability to challenge DNA evidence is largely dependent upon the
availability of an independent witness. This availability is, in reality,
a two-fold issue. First and foremost, if the Crown is using an independent
laboratory to test the samples then that independent laboratory cannot
appear on behalf of the defence. This type of assertion by defence counsel
became a recurring theme throughout the interviews. Another defence
counsel argued that if the Crown is using the RCMP or the Centre of
Forensic Sciences in Toronto, then defence counsel are limited in their
resources and may be forced to obtain expertise in another country. This
was the case with R. v. Morin. The defence DNA sample was tested in
Boston, USA. However, this issue was closely related to monetary resources
being available and seemed to be most prevalent in high-profile cases (see
R. v. Bourguignon, R. v. Milgaard, R. v. Morin, R. v. Murrin, R. v.
Sophanow and R. v. Stillman).

This leads to the other crucial issue facing defence counsel: the cost of
having tests done. Independent laboratories charge anywhere from $800 to
$3,000 per analysis. In addition, independent expert witnesses charge in
the range of $1,200/day for their testimony. These costs are essentially
prohibitive for the majority of criminal defendants.

When participants were questioned on the financial assistance provided by
Legal Aid to obtain expert advice, it became apparent that this was one of
the more significant issues faced by defence counsel. In fact, one defence
lawyer explained that lawyers needed prior knowledge about DNA evidence
simply to convince Legal Aid that they need an expert witness.

Conclusion

It has become apparent that having the requisite knowledge about DNA
evidence is perhaps the most crucial component in providing an adequate
defence, because defence counsel need to be able to explain the need for
an independent expert in order to obtain government funding for such
services. It seems logical that an independent, non-governmental expert
should be made available for defence counsel to assist in the examination
of the Crown's expert's evidence.

Given the defence counsels' difficulties with DNA evidence, it should also
be commonplace that defence counsel be provided with at least a small
amount of untouched DNA for independent analysis. There is no reason why
forensic DNA testing cannot accommodate such a recommendation since this
is commonplace in medical diagnostics.

This study, one of the first of its kind, has provided some important
insight into the increasing role of forensic science in the courtroom. In
essence, it reveals that while the use of DNA evidence may be valid,
defence lawyers do not have the knowledge or resources to adequately
defend their clients. The end result may be that justice is being
compromised by the seductive uses of science in some cases. Thus there
needs to be a closer examination of the communication, liaison, and
understanding between all parties involved in bridging law and science in
the courtroom. Justice may be compromised in instances where technical
issues are communicated ineffectively to non-technical people (i.e.,
jurors).

As the Kaufman Report outlined after the examination of the Guy Paul Morin
case, it is essential that all forensic scientists and the legal community
establish some joint educational programming to enhance understanding of
forensic issues. Today, as this research shows, little has been done in
terms of ensuring that this matter has been resolved between all parties.
The 46th Annual Conference of the Canadian Society of Forensic Science,
held in Edmonton in 1999 attempted to address these issues by bringing
together forensic scientists and members of the legal professions.
However, as noted, it seems that law and science have not, to date, found
a comfortable meeting ground, and until this happens, the scales of
justice will remain unbalanced.

The resulting vulnerability creates the feeling among defence counsel that
DNA evidence is so overwhelming that it is not possible to contest the
evidence in court.

For example, one defence counsel was successful in having the highly
seductive probability statistics eliminated from two cases in eastern
Canada.

In fact, one defence lawyer explained that lawyers needed prior knowledge
about DNA evidence simply to convince Legal Aid that they need an expert
witness.

In essence, it reveals that while the use of DNA evidence may be valid,
defence lawyers do not have the knowledge or resources to adequately
defend their clients. The end result may be that justice is being
compromised by the seductive uses of science in some cases.

It seems logical that an independent, non-governmental expert should be
made available for defence counsel to assist in the examination of the
Crown's expert's evidence.

JOURNAL-CODE: 1437

LOAD-DATE: February 20, 2002