11 2 3 THE INQUIRY INTO PEDIATRIC FORENSIC 4 PATHOLOGY IN ONTARIO 5 6 7 8 ******************** 9 10 11 BEFORE: THE HONOURABLE JUSTICE STEPHEN GOUDGE, 12 COMMISSIONER 13 14 15 16 Held at: 17 Offices of the Inquiry 18 180 Dundas Street West, 22nd Floor 19 Toronto, Ontario 20 21 22 ******************** 23 24 February 15th, 2008 25
21 Appearances 2 Linda Rothstein ) Commission Counsel 3 Mark Sandler ) 4 Robert Centa ) 5 Jennifer McAleer (np) ) 6 Johnathan Shime ) 7 Ava Arbuck (np) ) 8 Tina Lie (np) ) 9 Maryth Yachnin (np) ) 10 Robyn Trask (np) ) 11 Sara Westreich (np) ) 12 13 Brian Gover ) Office of the Chief Coroner 14 Luisa Ritacca ) for Ontario 15 Teja Rachamalla (np) ) 16 17 Jane Langford (np) ) Dr. Charles Smith 18 Niels Ortved (np) ) 19 Erica Baron (np) ) 20 Grant Hoole (np) ) 21 22 William Carter (np) ) Hospital for Sick Children 23 Barbara Walker-Renshaw (np)) 24 Kate Crawford ) 25
31 APPEARANCES (CONT'D) 2 Paul Cavalluzzo (np) ) Ontario Crown Attorneys' 3 Association 4 5 Mara Greene (np) ) Criminal Lawyers' 6 Breese Davies (np) ) Association 7 Joseph Di Luca (np) ) 8 Jeffery Manishen ) 9 10 James Lockyer (np) ) William Mullins-Johnson, 11 Alison Craig ) Sherry Sherret-Robinson and 12 Phillip Campbell (np) ) seven unnamed persons 13 14 Peter Wardle (np) ) Affected Families Group 15 Julie Kirkpatrick (np) ) 16 Daniel Bernstein (np) ) 17 18 Louis Sokolov (np) ) Association in Defence of 19 Vanora Simpson (np) ) the Wrongly Convicted 20 Elizabeth Widner (np) ) 21 Paul Copeland (np) ) 22 23 24 25
41 APPEARANCES (cont'd) 2 Jackie Esmonde ) Aboriginal Legal Services 3 Kimberly Murray (np) ) of Toronto and Nishnawbe 4 Sheila Cuthbertson (np) ) Aski-Nation 5 Julian Falconer (np) ) 6 7 Suzan Fraser ) Defence for Children 8 ) International - Canada 9 10 William Manuel (np) ) Ministry of the Attorney 11 Heather Mackay (np) ) General for Ontario 12 Erin Rizok ) 13 Kim Twohig (np) ) 14 Chantelle Blom (np) ) 15 16 Natasha Egan (np) ) College of Physicians and 17 Carolyn Silver (np) ) Surgeons 18 19 Michael Lomer (np) ) For Marco Trotta 20 Jaki Freeman (np) ) 21 22 Emily R. McKernan (np) ) Glenn Paul Taylor 23 24 25
51 TABLE OF CONTENTS Page No. 2 EFFECTIVE COMMUNICATION BETWEEN PEDIATRIC FORENSIC 3 PATHOLOGY AND THE CRIMINAL JUSTICE SYSTEM PANEL: 4 5 GARY EDMOND 6 DAVID RANSON 7 KENT ROACH 8 ERICA BEECHER-MONAS 9 KATHY GRUSPIER 10 11 Questioned by Mr. Mark Sandler 10 12 Questioned by Mr. Brian Gover 121 13 Questioned by Mr. Jeffery Manishen 125 14 Questioned by Ms. Jackie Esmonde 134 15 Questioned by Ms. Suzan Fraser 139 16 17 18 19 Certificate of transcript 14 20 21 22 23 24 25
61 --- Upon commencing at 9:30 2 3 THE REGISTRAR: All rise. 4 COMMISSIONER STEPHEN GOUDGE: Good 5 morning. Please sit down. 6 Mr. Sandler...? 7 MR. MARK SANDLER: Good morning, 8 Commissioner. This morning our roundtable will be 9 addressing effective communication between pediatric 10 forensic pathology and the criminal justice system. 11 Though I can saw with some confidence that 12 it's unlikely that we'll remain within the bounds of that 13 topic, but will explore a number of topics of interest to 14 the work of this Inquiry. 15 If I can introduce the panellists for this 16 morning, their full curriculum vitae is available on web, 17 but very, very briefly, if I can start to -- 18 Commissioner, to your far left we have joining us again 19 Dr. Ranson. And of course, you're very familiar with Dr. 20 Ranson, the Deputy Director of the Victorian Institute of 21 Forensic Medicine in Australia. And I won't further 22 address Dr. Ranson except to say that we're going to draw 23 upon his expertise, both as a forensic pathologist and as 24 a lawyer perhaps today. 25 Beside him is Professor Kent Roach. Kent
71 Roach is Professor of Law at the University of Toronto 2 with cross appointments in criminology and political 3 science and a Fellow of the Royal Society of Canada. 4 He's a graduate of the University of 5 Toronto and of Yale and a former law clerk to Justice 6 Bertha Wilson. Since 1998 he has been Editor in Chief of 7 the Criminal Law Quarterly and his current research 8 involves a variety of topic inclus -- including, of most 9 interest to us, the comparative study of miscarriages of 10 justice, and of course he is the Research Director to 11 this Inquiry. 12 To his left, Professor Kathy Gruspier. 13 Professor Gruspier is an Adjunct Professor in the 14 University of Toronto Forensic Science Program, where she 15 teaches a number of courses including Evidence Law and 16 Forensic Science and Miscarriages of Justice, and Mis -- 17 For -- and Forensic Science. 18 She is also a Forensic Anthropology 19 Consultant for the Office of the Chief Coroner. Dr. 20 Gruspier has held appointments as a forensic 21 anthropologist for the United Nations Transitional 22 Administration in East Timor, as a member of the Canadian 23 Forensic Investigation Team to Kosovo, and has also 24 conducted field work in Cambodia, Jordan, Italy, and 25 Israel.
81 Her PhD and Law Degree were obtained at 2 the University of Toronto. 3 I also note that one (1) of our research 4 papers that was commissioned by the Inquiry and enclosed 5 in the materials for today was prepared by Professor -- 6 or Dr. Gruspier. All right. Welcome. 7 Next I'd like to introduce Professor Gary 8 Edmond. Professor Edmond is a member of the Faculty of 9 Law at the University of New South Wales in Sydney, 10 Australia. His research focusses on expert evidence, 11 the public understanding of law, and the relationship 12 between law and science. He originally trained in the 13 history and philosophy of science, and subsequently 14 received a law degree from the University of Sydney, and 15 a PhD in law from the University of Cambridge. 16 Over the last decade he has published 17 extensively on expert evidence and the relationship 18 between law and science in the United States, United 19 Kingdom, and Australia. 20 And again, as you know, Commissioner, a 21 most provocative paper has been provided by Professor 22 Edmond for the purposes of our work. 23 And finally, last but not least, Professor 24 Erica Beecher-Monas. She is a Professor of Law at Wayne 25 State University Law School in Detroit, where she teaches
91 in the areas of evidence and corporate law. She received 2 her MS in anatomy, cell biology from the University of 3 Miami, and a JD from the University of Miami School of 4 Law. 5 She earned her LLM and JSD from Columbia 6 University School of Law. Prior to entering academia, 7 she clerked in the United States District Court for the 8 Southern District of Florida. 9 She writes in the areas of judgment and 10 decision making, with applications to scientific evidence 11 and corporate governance, and she has published 12 extensively on the evaluation of scientific evidence in 13 the courts. 14 And as you know, Commissioner, she came to 15 our attention as a result of -- of your review of -- of 16 one (1) of her published works. 17 So welcome to you all, and we've got some 18 very interesting questions to pose this morning. 19 20 EFFECTIVE COMMUNICATION BETWEEN PEDIATRIC FORENSIC 21 PATHOLOGY AND THE CRIMINAL JUSTICE SYSTEM PANEL: 22 23 GARY EDMOND 24 DAVID RANSON 25 KENT ROACH
101 ERICA BEECHER-MONAS 2 KATHY GRUSPIER 3 4 QUESTIONED BY MR. MARK SANDLER: 5 MR. MARK SANDLER: Well, Dr. Ranson, I'm 6 going to turn to you first. You were here yesterday when 7 your forensic pathology colleagues, as opposed to your 8 legal colleagues discussed the phrase "consistent with", 9 and we spent a lot of time on the phrase, and I don't 10 inspen -- intend to spend much time on it this morning. 11 But I want to go at it from a slightly 12 different perspective with our panel this morning. 13 You've heard, what I think it's fair to say, is a 14 consensus from the panel yesterday, that the use of the 15 term "consistent with" is -- is fraught with certain 16 dangers and -- and misinterpretation. And I know from my 17 discussion with this panel that that's also a view that - 18 - that is shared here. 19 Is the phrase "consistent with" so 20 embedded in the medical lexicon that it must continue to 21 be used by forensic pathologists? 22 DR. DAVID RANSON: Well, I think it's 23 certainly true, that the phrase is deeply embedded in the 24 mexical -- medical lexicon, that's quite true, as are a 25 number of similar ambiguous phrases.
111 The major problem is it doesn't give you 2 any real idea of certainty and it is almost entirely 3 based on the inflection in which the person giving oral - 4 - giving oral testimony uses the phrase. This does not 5 appear in transcript, and it makes it extremely difficult 6 for people reevaluating evidence to have any sense of 7 what the witness originally intended. 8 One could simply say, Well it's consistent 9 with that, or one could say, it -- it's consistent with 10 that. 11 Now I've just -- this transcript here will 12 not benefit from the way in which I used that inflection, 13 and perhaps it's important to at least distinguish that 14 is, if you like, at a very practical communications that 15 are in court, one (1) of the problems, before we even 16 move into the philosophy of the language. 17 But in a medical sense -- and I think this 18 was also addressed to some extent yesterday -- where 19 doctors use that phrase, they're using it, in a clinical 20 context, in a different way. They're talking about 21 probably discrete thresholds of the sort that Michael 22 Pollanen was talking about. 23 And I think that what is different about 24 the forensic pathologist is that because they work in 25 this interface between medicine and law, they, of all
121 groups, should be able to avoid the use of that term, 2 simply because they should be highly sensitive to the 3 communication error that the phrase can involve. And I 4 think that that means that when I'm training my students 5 and my fellows, I make, you know, very strenuous attempts 6 to wipe that phrase from their natural medical language 7 because they're now moving into a forensic practice area. 8 So yes, it's deeply embedded in the 9 medical lexicon. It should be, and can be, I believe, 10 removed from the forensic pathology or the forensic 11 physician's lexicon. 12 MR. MARK SANDLER: All right. Professor 13 Beecher-Monas, I'll ask you this question, that was not 14 asked of our panel yesterday: Is it any better if the 15 phrase is used in the context of an exculpatory scenario, 16 so that, for example, a defence counsel asks of the 17 forensic pathologist, Is the pathology in this case 18 consistent with accident? Because we know that in some 19 respects, certainly in Canadian jurisprudence, there is 20 not necessarily symmetry between the approach taken to 21 inculpatory evidence and exculpatory evidence. 22 DR. ERICA BEECHER-MONAS: I think it does 23 make a difference whether you're speaking about 24 inculpatory evidence or exculpatory evidence, because 25 what the word "consistent" -- or the phrase "consistent
131 with" is doing is it's giving you a universe of 2 possibilities. And when you're saying that something is 3 not consistent with that, in the exclusionary sense of 4 the term, what you're saying is it's not within this -- 5 this realm of possibility. 6 The problem comes up when you're talking 7 about inculpatory statements, that "consistent with" may 8 be this, may be that, it's within this universe of 9 possibilities. When you're saying, Well, but it's not 10 consistent with that, you're saying, Okay, but it's 11 outside the realm of possibility. 12 So exculpatory -- I think still if you're 13 talking about -- if you have an expert that's saying, 14 Well, this is consistent with an accidental cause of 15 death, the exculpatory use of the term, what you still 16 need to do is to have context. Because the words -- the 17 phrases themselves are just giving you a set -- if you 18 were talking about mathematical sets, right, it gives you 19 the set of -- of possibilities, but you really need to 20 understand what the context is. Is it consistent with 21 accidental death? Well, yes, because -- right? And then 22 flesh it out. 23 And so I think that's -- the problem, I 24 think happens because lawyers and judges want to get to 25 the bottom line very quickly, and so what they want is
141 the end result of what the expert is going to say, 2 without hearing the details. But the problem is the 3 details really count with expertise; the context is 4 extremely important. 5 And when you say, Is it consistent with an 6 accident? you need to say, Well, yes and no, right, 7 because -- and then the details are very important. 8 MR. MARK SANDLER: All right. So, 9 Professor Roach, I'll -- I'll turn to you. What I, what 10 I hear in the last answer is that -- is that there's 11 nothing wrong with saying that the pathology is 12 inconsistent with a certain inculpatory scenario, but 13 even in the context of exculpatory evidence, if one uses 14 the phrase, "is it consistent with accident", that's 15 fraught with the same uncertainties and difficulties and 16 it should be provided with some explanation. 17 What do you say about that? 18 DR. KENT ROACH: Yes, I mean -- I mean I 19 -- I agree that the word "consistent with" is -- is 20 really intellectually sloppy or an intellectually 21 shorthand no matter how it is used, but I agree with 22 Professor Beecher-Monas that if you say, for example, 23 Something is consistent with non-accidental injuries -- 24 so that would be an inculpatory use of consistent with -- 25 then the answer, or the next question in cross-
151 examination is how certain you -- you are. 2 And let's say the expert is able to say, 3 and I realise experts may not be able to say, Well, it 4 could be shaking, but it could be nine (9) other innocent 5 things. I think at that point the judge has to really 6 think about whether this evidence really should even be 7 admitted, because it's probative value to the bottom line 8 is pretty attenuated. 9 But let's flip it the other way. You have 10 a defence pathologist who says this is consistent with 11 accident -- with accidental injury; I agree. The next 12 question coming from the lawyer or from the judge should 13 be, how certain. 14 But let's say the defence pathologists 15 say, Well, it could be nine (9) guilty things, but it 16 could be one (1) innocent thing. To me there's -- 17 there's a stronger case that that evidence could be 18 admissible because it's probative value with respect to 19 the issue of whether the Crown has proved guilt beyond a 20 reasonable doubt would, I think, be higher than the 21 inculpatory use of somewhat similar evidence. 22 MR. MARK SANDLER: All right. 23 COMMISSIONER STEPHEN GOUDGE: Professor 24 Roach, both in what you said and what Professor Beecher- 25 Monas said, there is an implicit sort of assumption that
161 consistent with means equally -- it's equally true to say 2 inconsistent with. One (1) of the uses that some 3 scientists who have given evidence here have made of the 4 phrase is inconsistent -- and when I say "consistent 5 with" I as a scientist mean best fit. 6 In other words, the facts that yield this 7 opinion, diagnosis, cause of death, best fit my 8 diagnosis. That would clearly be probative, so 9 admissible. 10 DR. KENT ROACH: Right. 11 COMMISSIONER STEPHEN GOUDGE: You then 12 get right into what's the level of firmness of the best 13 fit, and so we're right into the problem that we spent a 14 lot of time yesterday with. 15 So, for me one (1) of he overlays to the 16 "consistent with" conundrum is it isn't used consistently 17 by scientists; it's used in different ways by scientists 18 and that compounds the conundrum facing the justice 19 system, it seems to me. 20 Does that make sense to you? 21 DR. KENT ROACH: Yes. And -- and I think 22 it's consistent with the -- the idea that it is and the 23 intellectually shorthand or -- or an intellectually 24 sloppy way, so hopefully the expert could say, The best 25 fit or, you know, when I look at -- look at all -- all of
171 the evidence I -- I think there's more support for this, 2 I recognise that there are two (2) other alternative hy - 3 - hypothesis, but at the end of the day this is where -- 4 where I land. 5 COMMISSIONER STEPHEN GOUDGE: You were 6 shaking your head, David. 7 DR. DAVID RANSON: I would say it was in 8 the use of the word -- the phrase "best fit", because at 9 the end of the day whether you use the word "in keeping 10 with", "consistent with", "fits best with", I'm not sure 11 that you're really getting away from the -- the 12 sloppiness of the thing -- I'm not accusing you of being 13 sloppy, but -- 14 DR. KENT ROACH: No, no -- 15 DR. DAVID RANSON: -- an argument, but 16 the -- the phrase themselves do not give you the 17 evidential base for the conclusion. And I think that 18 what you're trying to do when you're giving evidence in 19 an expert setting is to factualize opinion. 20 Good experts factualize opinion and I 21 think that is al -- always part of the sort of golden 22 rule, it's -- when I teach and I'm trying to train 23 witnesses, and I deliberately go out to do that, one (1) 24 of my golden rules is when you're expressing an opinion 25 you do so in the form of, You can believe me because.
181 In other words, you factualize your 2 opinion wherever possible. 3 COMMISSIONER STEPHEN GOUDGE: By 4 factualize you mean demonstrate the factual base from 5 which you derive your opinion. 6 DR. DAVID RANSON: Exactly. 7 COMMISSIONER STEPHEN GOUDGE: You don't 8 mean assert the opinion with the same level of certainty 9 as the fact appears on which the opinion is founded. 10 DR. DAVID RANSON: No. No, the first 11 phase -- 12 COMMISSIONER STEPHEN GOUDGE: Yes -- 13 MR. MARK SANDLER: Okay -- 14 COMMISSIONER STEPHEN GOUDGE: -- and it's 15 the second that creates the dilemma for the justice 16 system. 17 DR. DAVID RANSON: Indeed. 18 DR. KENT ROACH: I -- I mean on -- on the 19 issue of fit, I -- I would be interested in what 20 Professor Beecher-Monas has to say because I -- I take 21 your work as saying science is often about the issue how 22 the data, which is always evolving, fits in with the 23 hypothesis. And so I wonder if there's a difference 24 maybe between science and medicine here. 25 DR. ERICA BEECHER-MONAS: That's a good
191 question, and -- and a hard one to answer, because where 2 is the demarcation between science and -- 3 MR. MARK SANDLER: Right. 4 DR. ERICA BEECHER-MONAS: -- and art? 5 You know, this is the subject of philosophy; Professor 6 Edmond is much more fluent in the philosophy of science 7 than I am. But I -- I think that's it's extremely 8 important -- that's why I said context is key here. 9 MR. MARK SANDLER: Right. 10 DR. ERICA BEECHER-MONAS: We don't -- you 11 know, really, at the end of the day, it doesn't really 12 matter whether the expert is certain that this was a 13 shaken baby. What really matters is what are the facts 14 that the expert is basing that certainty on. So that our 15 rush to get to the bottom line sort of obscures the -- 16 the process. And really, what's helpful to the jury and 17 to the judge is the process. 18 What's important for the judge and the 19 jury to know is that, yes, you know, usually when, you 20 know, a baby dies, it could be, you know, it could be a 21 fall -- it could be shaken baby syndrome, for example, or 22 it could be just a fall from a table or down the stairs 23 or whatever. 24 Usually we don't see these symptom if it's 25 accidental, but we do know that there are some accidental
201 deaths in which this happens. But that's what the jury 2 needs to know. They don't need to know how sure the 3 expert is. What they need to know is why is the expert 4 so sure. You know, why is it that ninety-nine (99) times 5 out of a hundred (100) it will not be accidental death? 6 But there is that one (1) chance in a hundred (100) that 7 it could be accidental. 8 And no -- no expert can individualize -- I 9 mean, even though, you know, you -- you say, Well, 10 ninety-nine (99) times out of a hundred (100) it's 11 intentional rather than accidental, but in this one (1) 12 case, the expert can't tell you that. All they can tell 13 you is what the data show, and the data show that ninety- 14 nine (99) times out a hundred (100) it's intentional 15 instead of -- instead of accidental. But they can't tell 16 you that in this one (1) case it was either accidental or 17 intentional. 18 And that's the problem, I think, where we 19 come with -- where we run into problems with this 20 "consistent with," is that what we're looking for is the 21 judge's -- the expert's opinion, but what we should be 22 looking for is what is the opinion based on. 23 MR. MARK SADDLER: All right. Let me 24 bring -- 25 DR. ERICA BEECHER-MONAS: How did you get
211 there. 2 MR. MARK SADDLER: I'm sorry. Let me 3 bring in Professor Edmond and Professor Gruspier into 4 this discussion. 5 Professor Edmond, you heard some of the 6 dialogue about "consistent with" and in a -- in a 7 previous inquiry that dealt with forensic scientists at 8 our Centre of Forensic Science, recommendations came out 9 that -- that caused the Centre of Forensic Science to -- 10 to discontinue the use of the phrase "consistent with," 11 "could be," "could be this," "it's a match," as opposed 12 to more neutral language, "may or may not originate from 13 that source." 14 But you make the point in your paper that 15 although the move to more neutral language is a welcome 16 development, it's not the answer entirely, is it? 17 DR. GARY EDMOND: No, I don't think so. 18 MR. MARK SADDLER: Why not? 19 DR. GARY EDMOND: I don't think you're 20 going to find any form of words that can escape the 21 dilemma of how to -- interpretive problems or ambiguity. 22 So that's an issue to begin with, though there may be 23 reasons why certain types of words or formulations are 24 preferable to others. Part of the problem is that the 25 way the words will be used in context is always
221 important. This is where I agree with other members of 2 the panel. 3 So to the extent that you have an 4 explanation which is based on the process of reasoning, 5 the underlying basis, validity studies, and so forth, the 6 use of term -- terminology like "consistent with" may be 7 okay. It may be that the jury or fact finder will 8 understand the qualifications, where the evidence is 9 coming from, and they're important to understand how it's 10 being used in particular cases. 11 So it's a broader issue than just the form 12 of words in a particular way. It's the context of the 13 trial or the evidence that qualifies the way that the 14 words will be understood. Though in saying that I 15 understand that, as I've said, certain types of words are 16 preferable to others, is what I'm saying. 17 MR. MARK SADDLER: All right -- 18 COMMISSIONER STEPHEN GOUDGE: Can I just 19 ask you this, Professor Edmond? Both you and Professor 20 Beecher-Monas made a lot of sense with the emphasis on 21 context. I guess a question that that leaves for me is 22 this: 23 Is it asking too much for finders, be they 24 judges or juries, to focus hard on the facts from which 25 the opinion is derived and the reasoning process from
231 which the re -- the opinion is derived because both of 2 you counsel against being mesmerised by the bottomline 3 only. 4 When the expert is there, as the person in 5 the finder's mind that knows how to put facts and 6 reasoning together to reach conclusions, that's why 7 they're there. And so there's almost a built-in 8 institutional bias driving the finder to look only at the 9 conclusion, and that raises then, the dilemmas that you 10 say can be best guarded against by not looking only at 11 the conclusion. 12 DR. GARY EDMOND: That's -- yeah, that's 13 probably why I would -- I would put a lot of emphasis in 14 the paper that I wrote on admissibility. I think this is 15 where experienced judges -- 16 COMMISSIONER STEPHEN GOUDGE: Gatekeepers 17 have a -- 18 DR. GARY EDMOND: -- in gatekeeping -- 19 COMMISSIONER STEPHEN GOUDGE: Yes. 20 DR. GARY EDMOND: -- because they have to 21 have a hard look, I think, at the underlying basis for 22 the reasoning processes so that if juries do take that 23 approach, and we don't know a lot about kind of the way 24 juries approach scientific evidence, then it's less of a 25 risk than if someone comes in without a kind of basis to
241 their work and juries just making -- drawing inferences 2 from the bottom line. 3 COMMISSIONER STEPHEN GOUDGE: I'm not 4 sure judges are any better. I mean you know we get 5 mesmerized by expertise that isn't our own the same way 6 jurors do. 7 Do you have any thoughts on that, Dr. 8 Beecher-Monas? 9 DR. ERICA BEECHER-MONAS: I do. I think 10 that this is a very important issue, and I agree with 11 Professor Edmond that gatekeeping is key here. And one 12 (1) of the reasons it's key, is that the more familiarity 13 the judges get with looking at the context and listening 14 not to the bottomline, but to the facts that go into the 15 bottomline, the better they get at it. 16 Reasoning, I -- I -- and, you know, to me, 17 I agree with you; the jury and -- and the judge both have 18 problems in this area, but part of the reason they have 19 problems is lack of familiarity. 20 And if judges take their gatekeeping 21 seriously and they start to actually think as -- as is 22 clear in this panel is starting to think about the words 23 like "consistent with", right, that the more familiarity 24 you have with that and the more reasoning that people are 25 forced to articulate about these issues, the better they
251 get at it. 2 Practice makes perfect, or at least -- 3 COMMISSIONER STEPHEN GOUDGE: Or at least 4 makes better. 5 DR. ERICA BEECHER-MONAS: -- if not 6 perfect, it makes better, right. And also having, you 7 know, the -- the importance of gatekeeping is that there 8 is a review later. Judges write or come to opinions and 9 it's reviewed, so that you have to articulate the basis 10 and look at the facts, and I think that process of 11 structured reasoning actually helps come to a better 12 decision. 13 14 CONTINUED BY MR. MARK SANDLER: 15 MR. MARK SANDLER: Okay. Professor 16 Gruspier, you hold some strong views in some of these 17 areas and we haven't heard from you yet. In your paper, 18 one (1) of the things that you do is document a number of 19 the cases in Canadian jurisprudence that deal with the 20 testimony of both forensic pathologists and clinicians 21 opining on cause of death, and -- and you've made 22 comments about the extent to which they express their 23 opinions to a high degree of certainty. 24 Does that cause you concern? Talk about 25 that if you would with the Commissioner.
261 DR. KATHY GRUSPIER: Well, recognizing 2 that we only have a -- you know, what we have to work 3 with, but I wasn't looking at the transcripts, there 4 seems to a lack of this what my fellow panellists have 5 discussed, background information; they're getting to the 6 bottomline and they're expressing very strong opinions, 7 some of the clinicians, in particular. 8 What I see is that there's a lack of -- 9 they're not taking the opportunity to educate the trier 10 of fact, and I think that's the prime role of an expert, 11 is to take the time, whether they're given the 12 opportunity or not, whether the trier of fact asks or 13 not, to say, I'm here to educate you, I'm going to give 14 you all sides of the issue. And I haven't seen that in 15 some of the cases. People are coming with ready-made 16 nearing ultimate issue opinions and they're sort of 17 carrying the day. 18 MR. MARK SANDLER: And -- and in your 19 view are -- are there any concerns based upon your review 20 of the jurisprudence as to whether the opinions of near 21 certainty are even within the expertise that's conferred 22 upon these witnesses? 23 DR. KATHY GRUSPIER: Well, it's up to the 24 Court to determine, of course, what -- what somebody can 25 testify to, but I think I discuss in my paper that we do
271 have, in practice, the areas -- they're defined, the 2 areas which a forensic pathologist would normally testify 3 to, and areas where clinicians wouldn't normally testify 4 to. I think in some cases they are going outside of 5 their area of expertise. 6 And I'm -- you can -- I'm not quite sure 7 where to go from there. 8 MR. MARK SANDLER: All right. Per -- Dr. 9 Ranson, yesterday there was a very, very interesting 10 discussion headed up in part by Dr. Pollanen about what 11 it do -- what to do with the triad case, the shaken case. 12 And you recall, I put to him a very 13 difficult questions, which I acknowledged to be 14 difficult, where the controversy exists over what can be 15 inferred from the available pathology and what does he do 16 in circumstances where someone within Ontario, either in 17 his department or elsewhere, is at a different place in 18 the spectrum than -- than he's at? 19 And he said, at the very least, 20 everybody's entitled to -- to their opinion within a 21 reasonable range, as long as your articulate the 22 existence of the controversy, and then position yourself 23 where you sit along the spectrum. 24 The question that I have for you is: Is 25 the forensic pathologist even entitled to position
281 himself or herself along the spectrum, having regard to 2 the state of medical knowledge on those kinds of issues? 3 DR. DAVID RANSON: I think it's just as 4 equally a difficult question. My feeling, I suppose, is 5 -- is a rather pragmatic yes, but a qualified yes, in 6 that I'd say that if you are permitted to put -- place 7 yourself somewhere in the spectrum, then you owe it to 8 the court to explain why you are at that place in the 9 spectrum. 10 And I think that's the -- perhaps the 11 answer; that's perhaps the bit that -- that Dr. Pollanen 12 did not put into that -- that series of analysis of why 13 he would permit a particular staff -- 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. DAVID RANSON: -- member to do that. 16 But my -- 17 COMMISSIONER STEPHEN GOUDGE: There's 18 sort of two (2) pieces to it. I mean, the contextual 19 advice we've had so far would say, you've got to give the 20 trier the reality of the existence of the conflict, and 21 then if you're going to position yourself on the spectrum 22 of controversy, you owe it equally to explain why you are 23 where you're saying you are? 24 DR. DAVID RANSON: It's a very -- yes, 25 exactly that. And it's a very simple sort of situation
291 when you have experts in conflict, and the question is 2 asked to one (1) expert, Well why don't we simply accept 3 the evidence of Professor So-and-So who gave evidence 4 earlier, that the following? 5 And the usual sort of tenor of the answer 6 that would be sensible in this situation is, Well in 7 fact, we probably don't disagree on as many things as we 8 agree on, but where we disagree, it is because I place 9 greater weight on these papers, or this position, or this 10 piece of evidence in coming to my conclusion or my 11 position along the spectrum, than this other person 12 appears to do so. 13 COMMISSIONER STEPHEN GOUDGE: Okay. 14 MR. MARK SANDLER: But, doctor -- 15 COMMISSIONER STEPHEN GOUDGE: Let me just 16 ask this, Mr. Sandler, from the perspective of science, 17 this gives the fullest picture to the trier. From the 18 perspective of the criminal justice system to require 19 that an opinion given in an area of scientific 20 controversy must elucidate the existence of the 21 controversy. 22 Doesn't that begin every trial with almost 23 an inherent reasonable doubt? 24 DR. DAVID RANSON: Well it depends on, I 25 suppose --
301 COMMISSIONER STEPHEN GOUDGE: Professor 2 Edmond, then Professor Roach. 3 DR. GARY EDMOND: Maybe. I go back to 4 the issue of admissibility here. Just because there's 5 expert disagreement, doesn't mean that every opinion 6 should get into court; you've still got the issue of 7 reliability. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 DR. GARY EDMOND: And so I think that's 10 the fundamental issue. 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 DR. GARY EDMOND: You have to go back and 13 look at, what is the basis, what's the reasoning behind 14 this? 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 DR. GARY EDMOND: And just because 17 someone has an opinion, and bec -- and they're an expert, 18 doesn't mean that that -- 19 COMMISSIONER STEPHEN GOUDGE: Right. 20 DR. GARY EDMOND: -- should come in. 21 COMMISSIONER STEPHEN GOUDGE: But you can 22 pass the gatekeeper square on the board -- 23 DR. GARY EDMOND: Yeah. 24 COMMISSIONER STEPHEN GOUDGE: -- in an 25 area of controversy, fair enough?
311 DR. GARY EDMOND: Yeah. 2 COMMISSIONER STEPHEN GOUDGE: Lets assume 3 the expert does that, gets through the gatekeeper square 4 on the board, elucidates the existence of the 5 controversy, doesn't that say in those kinds of 6 prosecutions there will always be sort of an implicit 7 reasonable doubt going into the prosecution? 8 What do you say to that Professor Roach? 9 DR. KENT ROACH: Well, I mean, I'm coming 10 to the view though that we'd all really want to con -- to 11 force the reasonable doubt issue onto the expert. So I - 12 - you know, I think the experts duty is obviously to the 13 court and to his or her discipline, and so I would expect 14 that person to present all of the controversies in their 15 discipline and not to be too tied up with the ultimate 16 issue. 17 And I think that legally you could also 18 say that -- that, you know, if -- if you got past the 19 gatekeeper you could have a range of opinions. We know 20 that no one (1) piece of evidence has to be proven beyond 21 a reasonable doubt, so you could have a range of 22 opinions, then there's circumstantial evidence, and the 23 really hard decisions in some ways have to be made -- 24 COMMISSIONER STEPHEN GOUDGE: Yeah. 25 DR. KENT ROACH: -- by the trier of fact.
321 COMMISSIONER STEPHEN GOUDGE: Fair 2 enough. And I should say that particularly for the three 3 (3) of you that are here, and we're grateful, for the 4 first time, much of the discussion has as its implicit 5 backdrop these pediatric forensic cases where the 6 pathology is everything, okay? 7 So while it's true there will be 8 circumstantial evidence in almost all of these cases, the 9 hard cases are the ones where there is virtually nothing 10 but the pathology and exclusive opportunities. So those 11 are the cases that have presented the biggest challenges 12 that we're heard so much about? 13 I don't know, do you have a comment on 14 this dilemma? 15 DR. ERICA BEECHER-MONAS: Yes, I do. I - 16 - I think that this is why gatekeeping is key. I think 17 in particularly these two (2) areas, the Shaken Baby and 18 the Sudden Infant Death Syndrome, there's such 19 controversy in the forensic pathology community itself as 20 to what -- we don't know what the causes of Sudden Infant 21 Death Syndrome are, to begin with, and so it's -- it's 22 very difficult and -- and this is where the gate keeping 23 is key. 24 Do we have enough evidence, one way or the 25 other? And this is a tough question. I -- I don't know
331 what the answer is. Do we have enough evidence, one way 2 or the other, even to proceed with cri -- with -- 3 COMMISSIONER STEPHEN GOUDGE: To get 4 through whatever gatekeeping tests the court applies? 5 DR. ERICA BEECHER-MONAS: Yeah. It's a 6 hard question to answer -- 7 COMMISSIONER STEPHEN GOUDGE: Professor -- 8 DR. ERICA BEECHER-MONAS: -- but I think 9 you need to know the basis for the expert's opinion 10 before you -- 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 DR. ERICA BEECHER-MONAS: -- start to do 13 it. 14 DR. GARY EDMOND: On top of admissibility 15 this is a consideration where some of the judicial 16 discretions like the Christie Discretion the prej -- the 17 probative value versus the judicial effect -- 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 DR. GARY EDMOND: -- might come into 20 play. Even if it did pass that threshold, you may still 21 exclude the evidence because of the existence of the 22 controversy and the igni -- inability of the fact finder 23 or the inability of the defence to kind of meaningfully 24 bring that -- 25 COMMISSIONER STEPHEN GOUDGE: Engage in a
341 dissection of the evidence? 2 DR. GARY EDMOND: There are other avenues 3 available to the judge, I think, in relation to this, 4 which don't just turn on admissibility. 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: Dr. Ranson, can I go 8 back to a question that I asked you a little bit earlier 9 because I'm not sure -- and it's not a function of 10 anything that you did or said. I'm not sure that we have 11 an answer to it and that's this: That recognizing the 12 desirability as everyone has articulated to -- to give 13 the most fulsome of account of why you are where you are 14 in your opinion and recognizing as everyone has said that 15 where controversy exists, that ought to be articulated 16 for the trier of fact. 17 Recognizing all of that, don't we have to 18 go back one (1) step and that is, from the forensic 19 pathologist's viewpoint, if you know that you're going to 20 be coming to court and you're going to be asked in some 21 shape or form -- and I'm going to ask all of the 22 panellists about grading levels of certainty -- but you 23 know that the nature of the forensic process is going to 24 be a question or questions about where you are at in the 25 spectrum -- is this probably a shaken baby? Is it highly
351 likely that it's a shaken baby? 2 Is there that possibility, albeit no more 3 than a possibility -- is there a point at which you are 4 prepared to engage in that dialogue? Or are there cases 5 where the controversy is so profound that you say: I 6 can't even weigh in, I can't express any opinion and I 7 won't engage in the process? 8 DR. DAVID RANSON: I think there is and 9 it comes out when you have a situation where the 10 pathologists puts down at the end of the day on their 11 report "unascertained." In a sense that is the -- the 12 bottom line that people are fighting for. 13 Of course the fact that you do that does 14 not prevent the criminal justice process going on and 15 coming to certain conclusions regarding guilt or 16 innocence or establishment of certain facts about what 17 happened. 18 To some extent there's always a 19 disingenuous action on the part of a forensic 20 pathologists when they put "unascertained" and then write 21 two (2) pages of detailed opinions as to why they have 22 had to fall back on unascertained in the set of opinions 23 expressing a whole series of possibilities and so on. 24 But, at least, when you do that you are, at least, 25 expressing quite clearly the fact that having gone
361 through the analytical process, as a scientist, you have 2 been unable to draw a conclusion. 3 Now, the question there, I suppose, that 4 goes beyond that is, what is the -- the burden or the 5 standard that the scientist is using when they say, I 6 can't express an opinion. Are they applying a legal type 7 standard of a balance of probability, or beyond a 8 reasonable doubt? Or are they, in fact, presenting some 9 other threshold medical level? 10 And I suppose that's why I made -- made 11 the point about explain where you are in that -- in the 12 spectrum of decision-making and why you stay there and 13 you're not over here or you're not over there. 14 MR. MARK SANDLER: Professor Gruspier, 15 you're now testifying and I'm -- I'm going to have you 16 put on -- you wear a lot of hats, but I'm going to have 17 you put on your forensic anthropology hat for a moment. 18 You come to Court. You're going to be 19 expressing an opinion and the Court wants to know where 20 are you at in a -- in a spectrum that involves degree of 21 certainty. 22 Do you engage in that process, and -- and 23 how do you internally wrestle with where you're going to 24 fall in the spectrum? 25 DR. KATHY GRUSPIER: My practice is to
371 not engage in a process like that; however, what I do do, 2 and I think what's very important to do, is to make a 3 distinction between whether you're basing your opinion on 4 objective scientific published fact and subjective 5 opinion or experience, and I think it's true of forensic 6 pathology, as well. 7 There's certain areas where we can point 8 to publications and say, Look, there's been studies done, 9 you know, this is true almost all of the time or I can 10 even quote you with statistic, and then we move into this 11 sort of area where it's very subjective based on opinion, 12 based on my experience, colleague's experience, et 13 cetera, so that's what I do. 14 And I -- I come in -- and I say, now this 15 -- this is a very subjective area. Degree of force, for 16 instance, that's a very good example. How does one say 17 that it took this much force to produce a certain injury? 18 There are very few empirical quant -- 19 quantified-type studies on that issue. There are a few. 20 I think that Dr. Ranson was involved in one (1) of the 21 papers that has documented some of them in regards to 22 children. 23 But you have to be very clear that you're 24 -- you're stating, This is a subjective area and I -- 25 this is my opinion, and then I allow for, you know,
381 whoever wants to ask me questions, so I just make it 2 clear from the beginning. 3 COMMISSIONER STEPHEN GOUDGE: What is in 4 your head when you're in that subjective area, Professor 5 Gruspier, as to level of certainty, or is that even a 6 relevant question to you as a scientist? 7 DR. KATHY GRUSPIER: Well, I think it has 8 to be relevant because you know that you're going to 9 Court to give an opinion to -- you have to make a 10 decision about something. I mean -- 11 COMMISSIONER STEPHEN GOUDGE: And you 12 have -- 13 DR. KATHY GRUSPIER: I have -- 14 COMMISSIONER STEPHEN GOUDGE: -- as a 15 scientist -- 16 DR. KATHY GRUSPIER: Yes. 17 COMMISSIONER STEPHEN GOUDGE: -- come to 18 a conclusion about, to take your paradigm, degree of 19 force. 20 DR. KATHY GRUSPIER: Right. So -- 21 COMMISSIONER STEPHEN GOUDGE: I mean what 22 do you have in your head as a threshold that has to be 23 passed before you can articulate that? I have to tell 24 you just to make you feel better, we had about an hour 25 yesterday with four (4) world class forensic pathologists
391 on this question and in the end, it was hard going for 2 all of us, wouldn't you agree, David? 3 DR. DAVID RANSON: Yes, very much so. 4 DR. KATHY GRUSPIER: Well, I mean I've -- 5 I've engaged in these discussions with Dr. Pollanen for - 6 - for instance, we do a lot of cases together, and we'll 7 banter back and forth and we'll sort of test each other, 8 well, how can you prove it to me? Explain to me how 9 you've come to this conclusion. 10 I don't think I -- I can't sort of put a 11 number on it, but when I get to the point where I make a 12 decision that this is, okay, now I have to use some 13 terminology, more probable or more likely, then I'm 14 saying this my interpretation and this my opinion. 15 COMMISSIONER STEPHEN GOUDGE: Right. 16 Although you don't really think in your head this is 50 17 percent plus one (1) -- 18 DR. KATHY GRUSPIER: No. 19 COMMISSIONER STEPHEN GOUDGE: -- on the 20 scale of likelihood, the way we lawyers think in the 21 civil context -- 22 DR. KATHY GRUSPIER: No. 23 COMMISSIONER STEPHEN GOUDGE: -- et 24 cetera, et cetera. 25 DR. KATHY GRUSPIER: Yeah, when I'm --
401 when I'm not thinking that -- in that way I -- I don't -- 2 unless there is something I can point to like a 3 publication I can go to. 4 COMMISSIONER STEPHEN GOUDGE: Yes, you 5 can spell out the reasoning process. You can spell out 6 the facts from which the reasoning process derives. You 7 can use the epidemiology -- 8 DR. KATHY GRUSPIER: Right. 9 COMMISSIONER STEPHEN GOUDGE: -- if there 10 is epidemiology, and so on, but in the end there will be, 11 in many cases, a subjective component -- 12 DR. KATHY GRUSPIER: Yes. 13 COMMISSIONER STEPHEN GOUDGE: -- to your 14 bottomline diagnosis. 15 DR. KATHY GRUSPIER: Right. 16 MR. MARK SANDLER: Now -- 17 COMMISSIONER STEPHEN GOUDGE: Can I -- I 18 just want to ask one (1) question of the lawyers and I 19 include, I guess, all of you in this, because you all are 20 lawyers. Professor Roach and I were talking a little 21 about this this morning. 22 One could construct a paradigm in which 23 the Justice System determined that the best way to 24 approach this conundrum was to simply let scientists be 25 scientists, okay? They articulate their opinions that
411 way. 2 We are then, as a Justice System, forced, 3 for our part, to adapt to that and to do the 4 interpretation of fixing certainty as best we can. One 5 (1) advantage of that approach to it is this doesn't 6 force any skew in the scientist's thought process. 7 They continue to be legitimately 8 scientists as opposed to scientists being forced to think 9 like lawyers, at least, in this little aspect of their 10 work. If it has that advantage, it then faces the 11 Justice System with the conundrum. 12 How do we go about doing it; adapting to 13 the expression of opinion that Dr. Gruspier gives the 14 court, that is, in part, subjective, and has a great sort 15 of gap in it in answer to the question, How certain are 16 you? 17 Does that thesis make any sense to any of 18 you? 19 DR. DAVID RANSON: It seems to be 20 somewhat -- somewhat idealistic in the sense that, yes, 21 if you allow the scientist to be a pure scientist in that 22 process, and then you let the legal process evaluate that 23 in it's context for the social justice or -- or criminal 24 justice process, which is very attractive as a model. 25 The question then, I suppose, is -- is the
421 training issue for the Judicial System to correctly, or 2 reasonably be able to evaluate the scientific process. 3 Another -- they're not trying to be a scientist in that, 4 but they're trying to place a set of rules around that, 5 and to some extent, the law -- the law of evidence -- 6 tries to do that in a -- in a variety of ways already. 7 The practical side of this, in my 8 experience, because I think quite often the Judicial 9 System does try to do that, at least in theory, is that 10 experts, to some extent, are often bullied by the 11 criminal justice process. 12 It is not uncommon for you to say, Well I 13 have to say I really can't take this any further. I 14 don't know. I'm not sure about this, it lies a bit 15 beyond my expertise. Only to find, as was articulated in 16 part yesterday, Well think harder, doctor and -- as a 17 response that -- you know, Well we realize this may be 18 right at the fringe of your expertise, but we -- but we 19 would still benefit from your opinion, and we would 20 really like your opinion, so please consider it. 21 I mean, part, that is, I think, an 22 expression of the most difficult area. Because if the 23 expert's having difficulty, it's likely that the trier of 24 fact is having difficulty at the same time, and then it 25 becomes a bit of -- not quite a bullying match, but
431 there's an element in which that both the judge and -- 2 and parties are trying to say to the expert, We -- there 3 isn't any alternative. We need you so we'll allow you to 4 be more speculative than we would have ever have let you 5 be in other -- in other circumstances. 6 COMMISSIONER STEPHEN GOUDGE: Professor 7 Edmond...? 8 DR. GARY EDMOND: Yeah, I think it's -- 9 in thinking about forensic pathologists and forensic 10 scientists, I think it's important to recognize that 11 they're already sensitive to the Legal System, like the 12 whole culture and practices, and -- 13 COMMISSIONER STEPHEN GOUDGE: Right, 14 they, of all scientists, interact with the system most of 15 all. 16 DR. GARY EDMOND: So we're not talking 17 about some notion of science and some notion of law -- 18 COMMISSIONER STEPHEN GOUDGE: You're 19 right. 20 DR. GARY EDMOND: -- you're already kind 21 of con -- producing knowledge sensitive to what going on. 22 But I think this just returns back to this issue of the 23 kind of reliability of evidence or the basis. 24 The Legal System, as far as I can see it, 25 and the judiciary, can never abdicate their
441 responsibility of actually looking at -- looking at what 2 is supporting the evidence or the opinions which an 3 expert has given, regardless of the level of certainty. 4 They -- they give you -- and they need to 5 look at what's -- what's the extrapolation from the 6 underlying factual data to their opinion, and having a 7 close look at that. 8 And if they're not satisfied on that, then 9 I have to wonder how they're going to -- how to manage 10 the evidence, whether that's exclusion or limiting it in 11 certain ways, or doing something else with it; or being 12 more sensitive to the need for rebuttal experts, or -- or 13 whatever comes... 14 COMMISSIONER STEPHEN GOUDGE: Anybody 15 else have any comments? Sorry, Mr. Sandler. 16 MR. MARK SANDLER: No, that's fine. 17 DR. KENT ROACH: I mean, just to add, 18 when I teach my first year of law students the reasonable 19 doubt standard, I stress that, you know, this is not a 20 standard that we use in our ordinary lives, and that it 21 would in error for a judge to do it. 22 And so, I don't know the answer, but I 23 guess the issue is would we hold forensic scientists and 24 forensic pathologists to this standard? And I guess, I - 25 - I tend to think probably not and that this is at the
451 end -- end of the day, our responsibility. 2 And it goes to something Professor 3 Gruspier has said too that there is -- I think the expert 4 has to educate the trier of fact. I don't think we 5 really have any alternative. 6 It can't simply be an opinion evidence 7 because, at the end of the day, the trier of fact has to 8 apply the reasonable doubt standard which is based on 9 both the evidence that they've heard and the evidence 10 that's not -- that -- that they haven't heard; the 11 evidence that is not available. 12 So I -- you know, I -- I think that if the 13 expert can articulate what the controversies are, then 14 that's just food for thought for the trier of fact. 15 MR. MARK SANDLER: Well, Professor Roach, 16 you say, quite rightly, that -- that you advise your 17 first -- your classes that the standard of proof beyond a 18 reasonable doubt is not that which we use in our everyday 19 lives, but we do use probabilities. 20 We do say something's likely; something's 21 probable so what would your comment be about the use, by 22 an expert, of probability as a measure of level of 23 confidence in an opinion? 24 DR. KENT ROACH: I guess it would depend 25 on the particular area of expertise. I mean, you know,
461 I'm -- I'm the least scientific of this panel so I'm a 2 little bit hesitant but I guess if I gave someone a legal 3 opinion, I would probably base it on probability so it 4 doesn't seem like a bad standard. 5 But I would have to know more about each 6 particular discipline and more about the context to say 7 what it is that -- that leads me to -- to form this 8 opinion and provide this -- this form of advice. 9 MR. MARK SANDLER: Dr. Ranson, I want to 10 ask you the same question. Are you comfortable engaging 11 in an opinion that has, at its root comfort level, as 12 likely or probable? 13 DR. DAVID RANSON: Well, two (2) -- two 14 (2) components that I suspect; one (1) is when you use 15 the term "probability" in that context, do you mean that 16 in a general social sense, everyday sense of probability 17 which is how you started the -- the question? Or do you 18 mean in the quite strictly scientific sense of 19 probability because it has a very separate scientific 20 meaning? 21 So when you ask your witness, your expert 22 scientists or whatever, about probability, are you asking 23 that on a scientific basis of probability or on a social 24 context basis of probability and the -- the two (2) seem 25 to me to be quite different. And it may not be clear
471 which it is that the expert is using. 2 If they start quoting papers and 3 statistics, then the likelihood is they're thinking about 4 a scientific probability. If they're saying, Well, you 5 know the way I feel about this case and from my 6 experience and so on, they're perhaps using a more social 7 context of probability, and if it's not clear, then I 8 think the Court doesn't get the consistent message. 9 MR. MARK SANDLER: Well, let's assume 10 we're talking about cause of death for a moment so I'll 11 draw upon your forensic pathology skills. 12 And we haven't evolved, as I understand 13 it, in -- in the state of forensic pathology, to a point 14 that one starts articulating levels of confidence as 51 15 percent or, for that matter, 75 percent or what have you 16 or at least, there -- there doesn't seem to be any 17 appetite for that approach on the part of the forensic 18 pathologists who have come to this Inquiry. 19 DR. DAVID RANSON: Yes. 20 MR. MARK SANDLER: So -- so let's assume 21 that you're -- you're using it in a -- in a more social 22 sense. 23 Would you be comfortable saying that based 24 upon the totality of the evidence available to me, this 25 is probably a smothering case?
481 DR. DAVID RANSON: I don't think that 2 particular example is useful because I think I find 3 smothering extremely difficult on the basis of 4 probability. But in terms of expressing probability in 5 a social sense, that is, How do I feel; using Professor 6 Cordner's definition, Could I sleep at night with having 7 expressed that opinion, then I think yes. 8 I mean, I think that's -- that is 9 certainly a standard that is regularly used where there 10 is no sort of really good concrete scientific base, but 11 it needs to be done in that way. "I could sleep at 12 night" tells you something about the scientific validity 13 of that argument in terms of its social validity and that 14 is actually providing, you know, some quite important 15 information. 16 Remember that when you're coming to cause 17 of death, what is a pathologist actually doing? They're 18 actually -- most of the time you carry out an autopsy, 19 there are, possibly, a whole variety of potential causes 20 there that might exist. 21 Some of them are strictly evidence-based 22 on things you observe and -- and some of them are -- are 23 based on things you have been able to exclude. At the 24 end of the day, what is the cause of death? It's an 25 elevation of a cause of death to being the cause of
491 death. It's a conversion from the indefinite article to 2 the definite article. 3 Now, if you take it from that -- or rather 4 -- that's a very sceptical philosophical approach to 5 cause of death, but if you take that view, you can say 6 that can apply in almost every scenario. 7 So there's someone, and this has been used 8 the other day, someone who's been stabbed in the chest, 9 has got a knife wound through the ribs and through the 10 heart and they've lost a lot of blood, I think the 11 example that was sort of given. 12 You might say, Well, you know, the -- the 13 from -- you've -- you are easily able to elevate a cause 14 of death to the cause of death, but did they have a heart 15 attack just before they were stabbed because of the 16 stress of the struggle? 17 You know, was the stabbing occurred just 18 after the seizure so that you still had some blood 19 moving, but the -- they were actually brain dead? You 20 know, there are some extremely remote possibilities that 21 that is not, in fact, the cause of death, and that 22 probability of and one (1) that needs to be presented to 23 the Courts, and we do it in -- really by playing lip 24 service, in a sense, to that when we -- in those sorts of 25 very well defined cases.
501 And when it's much more subjective and 2 much more risky to do that, then we break it down in -- 3 into its component parts of the opinion. 4 COMMISSIONER STEPHEN GOUDGE: Right, it's 5 the gray area cases that present the toughest conundrum, 6 the shaken baby cases, the SIDS cases -- 7 DR. DAVID RANSON: That's right, and then 8 they're -- 9 COMMISSIONER STEPHEN GOUDGE: -- as 10 opposed to the pathology where the bullet goes through 11 the brain. 12 DR. DAVID RANSON: But in theoretically, 13 the framework for the analysis is the same. It's just 14 that from a risk component -- I'm using some risk 15 management terms now. It is less risky for the Judicial 16 System in a social -- in a social sense to worry about 17 that analysis in the level of a stab wound to the chest, 18 but it is to worry about it in the case of the triad or 19 shaken baby. 20 COMMISSIONER STEPHEN GOUDGE: Less risky. 21 The issue that presents this conundrum, at least to me, 22 is that the articulation of opinion may be in the same 23 words in each case -- 24 DR. DAVID RANSON: Yes. 25 COMMISSIONER STEPHEN GOUDGE: -- although
511 highly risky in the case in the first end and not so 2 risky in the second, from a perspective of the system. 3 DR. DAVID RANSON: That's right, and we 4 tend not to intellectualize the less risky case. 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: Professor Beecher- 8 Monas, I know you've looked at the issue that I'm going 9 to ask you about. Has science done a good job in -- in 10 establishing methods of quantifying degree of certainty? 11 DR. ERICA BEECHER-MONAS: Has science 12 done a good job? Let's put it this way, there -- it 13 depends what you're talking about, right. If you're 14 talking about epidemiology studies, right, you can say, 15 Well, we have the studies, they show that in 90 percent 16 of the population when you have these symptoms it's this, 17 in the other 10 percent it's that. 18 So the problem -- you know, the -- if 19 you're talking about statistical probabilities, which 20 gets you down to the question of science and -- and law, 21 right -- if you're talking about statistical 22 probabilities in the overall population, the chances are 23 90 percent that the symptom is caused by that. But then 24 you have the problem of the individual where you can't 25 say that this individual had what the 90 percent of the
521 people do or what the 1 percent -- 10 percent of the 2 people have. 3 The problem is that you can't 4 individualize those general population statistics. You 5 can only say that 90 per -- and these -- with these 6 symptoms 90 percent of the people would have that, so you 7 have this problem of translation, right. 8 Now you get an expert on the stand and 9 he'll say, Well, I think that this probably was what 90 10 percent of the general population would have because of 11 this, but there is this other 10 percent possibility. 12 But then you ask the bottomline, which is, 13 Well, how certain are you that it's this, but it doesn't 14 translate that way, right? That's the problem with -- 15 with talking about probabilities and trying to make it 16 into a legal standard of more probable than not, right, 17 because it -- it -- they are apples and oranges. 18 The probability that scientists are 19 talking about is whatever the data shows. The 20 probability that we're asking for in law is, How sure are 21 you? What do you think? And they're -- they're not -- 22 they have a relationship, but they're not the same thing. 23 MR. MARK SANDLER: Okay. Professor 24 Gruspier, yesterday the panel addressed the different 25 approach -- or the same approach, depending upon which
531 panellist was speaking -- that should be taken to the 2 expression of opinions in, for example, the forensic 3 setting, opining as to cause of death, or the timing of 4 injuries, and -- and the setting -- and a clinical 5 setting when one is expressing an opinion for the purpose 6 of treating a living patient. 7 Is there a distinction in your mind? 8 DR. KATHY GRUSPIER: Yes. I -- I think I 9 discussed that a bit in -- in my paper where if you're a 10 clinician, it seems to me, your focus is trying to save a 11 patient, and you may not think -- you may -- you'll go as 12 far as possible to do that, as long as you don't harm an 13 individual. 14 It's not the same once the patient has 15 died, because there's no -- the threshold is different. 16 If you go too far in trying to heal someone or, you know, 17 try to -- to help them, you -- you may actually be doing 18 harm to other people, because the focus has changed from 19 a patient to someone else who may have been implicated in 20 the death of that patient. 21 So there's a -- there's a difference in 22 who the jeopardy attaches to, if it's jeopardy, or who 23 the benefit attaches to, if it's benefit -- if it's a 24 benefit. 25 MR. MARK SANDLER: Dr. Ranson, when that
541 discussion was going on, I couldn't help but notice that 2 you were at the edge of your seat in the audience, and it 3 looked like you wanted to weigh in on the issue. 4 Here -- here's your chance. 5 DR. DAVID RANSON: I -- there's certainly 6 quite a difference between the -- the clinical approach 7 and, I think, the approach that needs to be brought into 8 the forensic forum. 9 The -- the clinical approach into -- and I 10 use the discipline of surgical pathology as the area 11 which I'm most familiar, where you're -- you're 12 essentially looking at a biopsy that's been taken from a 13 patient, and you're going to be advising the treating 14 clinician what the entity is there, and, therefore, by 15 implication, what sort of treatment the patient should 16 get; whether they should have their leg cut off, or they 17 should receive chemotherapy, or whatever. 18 And I think then, you're -- you're prim -- 19 clinical threshold that certainly had been mentioned, 20 takes into account risk -- the risk to do no harm, but 21 also, to some extent, you're presenting to the surgeon or 22 -- or the physician, a series of options. At the end of 23 the day, it's still an opinion. 24 It's just that -- that opinion has a more 25 clearly defined set of guidelines as to threshold. So in
551 surgical perhaps say, If you decide whether it's benign 2 or malignant in a particular entity, there is probably a 3 quite well recognized school of thought that says you 4 need to see these sort of elements. If those elements 5 are there, then it's this. 6 And that, to some extent, is a little bit 7 artificial, but it's something that has been -- because 8 there's just so much surgical biopsy reporting around the 9 world, it is much easier to find the gold standard with 10 respect to that and simply apply it. 11 It may be that from time to time that 12 doesn't work for a particular biopsy, but it'd still get 13 supplied. And at the end of there day, then there's some 14 discretionary things from the surgeon that comes in a bit 15 later, rather like the other evidence that a court might 16 be -- might be working with. 17 So that it's -- the nature of the problem 18 is -- is, I think, better defined if it has a greater 19 evidence base so that the risk of something going wrong 20 goes down. The less evidence base you've got, as -- as 21 is the case with some of these very difficult grey areas, 22 the risk goes up. 23 Now the question is, to what extent a cost 24 -- what to engage in risk activity, and of course the 25 court is not avail -- not able to really exclude risky
561 activities. A wide variety of cases come to a court, and 2 they just have to deal with them -- well, sometimes, I'll 3 exclude jurisdiction. 4 So -- so their -- their notion of dealing 5 with risk is -- is different from the scientific risk. 6 The problem, for example, if you say, Well this evidence 7 is just literally really too unreliable, it's -- it's too 8 variable, and so on, could mean that you could never 9 prosecute someone for a whole class of things. 10 It's impossible to ever -- ever do that. 11 And we know that some of the continental systems where it 12 was required to prove every element of the offense -- off 13 -- you know, trials took years, and at the end they -- 14 they fizzled out. 15 And -- and, in a sense, justice wasn't 16 seen to be done. The risk, of course, is that you then 17 rely on poor evidence, then justice isn't done either. 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 20 CONTINUED BY MR. MARK SANDLER: 21 MR. MARK SANDLER: Let me ask all of you 22 about a variation to that problem, and that is, should 23 the experts approach to the expression of opinion be 24 different, because it's given in a criminal proceeding as 25 opposed to being given in a child protection proceeding,
571 where the burden of proof is different -- namely balance 2 of probabilities-- and the issues that underpin the 3 proceedings are different. 4 I'll start here and work my way down the 5 room. 6 DR. ERICA BEECHER-MONAS: Well, they are 7 different in a sense, but I think they -- they -- the -- 8 the possibility of doing harm is there in both contexts. 9 The problem is I think you have to -- and 10 this goes back to the distinction between making a 11 clinical decision and making a decision about causation, 12 in terms of either death or in the case of the child 13 protective situation, you know, who -- whether it was 14 intentionally inflicted harm. 15 But in either case, because the importance 16 of the innocent explanation, is -- the importance of that 17 innocent explanation is so important, that -- that -- 18 because of the harm can possibly be done from the 19 consequences, right, because the child will be taken from 20 the parents or somebody will be accused of -- or go to 21 jail for having done intentional harm to someone. 22 That, as opposed to the clinical setting, 23 where you have, you know, a sick person already who needs 24 to have -- you can -- you -- even if you're wrong, you 25 need to try to do something, right? And -- and you -- so
581 you try to do whatever you can that will cause the least 2 harm. 3 In a -- an evidentiary system that's not 4 really what you're looking for. What you're looking for 5 is, you know, is there a crime here? Is -- or in the 6 case of, you know, children that are abused, is -- is 7 there abuse here? And I think really the concerns are 8 very similar because of the harm that can happen to 9 innocent people if there is an innocent explanation and 10 that isn't brought out properly. 11 So, that's a long-winded way of saying, I 12 think that the concerns are very similar in both 13 situations. And the importance of looking at a possible 14 innocent explanation on the part of the expert is 15 extremely important. 16 MR. MARK SANDLER: Dr. Edmond...? 17 DR. GARY EDMOND: I think I would agree, 18 maybe a little more sinctly -- succinctly. I would just 19 suggest that you're concerned about the underlying 20 validity of the techniques, the opinions, or the way the 21 reasoning is conducted. 22 And it doesn't matter, the end point, if 23 the actual kind of process or -- is unreliable, it makes 24 -- it doesn't improve it or doesn't make it better to use 25 in different types of cases, I think.
591 You're looking at the underlying validity, 2 and that's the most important thing for you. So I would 3 say, no, there shouldn't really be a difference in terms 4 of the types of opinions get allowed in, in relation to 5 the different types of cases. 6 COMMISSIONER STEPHEN GOUDGE: So the 7 gatekeeper would apply the same threshold regardless of 8 the process? 9 DR. GARY EDMOND: To -- yeah, to the 10 actual process that the expert is using. 11 COMMISSIONER STEPHEN GOUDGE: Right. 12 MR. MARK SANDLER: At least -- at least 13 in -- and -- 14 DR. GARY EDMOND: The standard would 15 obviously be lower that, you know, the -- the decision is 16 made -- 17 COMMISSIONER STEPHEN GOUDGE: That the 18 trier would use? 19 DR. GARY EDMOND: Yes, that's different. 20 COMMISSIONER STEPHEN GOUDGE: That is a 21 different question. 22 DR. GARY EDMOND: That's a -- that's a 23 separate thing. You're concerned about reliable 24 evidence. You don't lower the standard of reliability, 25 as far as I'm concerned. So you allow in potentially
601 unreliable evidence just because you're more concerned 2 about the abuse of children. 3 COMMISSIONER STEPHEN GOUDGE: Less 4 reliable evidence. 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: Now -- now you've made 8 the case in your paper, just before I continue on, that - 9 - that perhaps from the gatekeeper's perspective -- and 10 now we're not talking about what the expert says or how 11 the expert articulates it, which was really my question. 12 But while I have you here and you're a 13 captive audience, you've made the argument in your paper 14 that the gatekeeper function may not be symmetrical as 15 between evidence that's being tendered in favour of the 16 prosecution and evidence being favoured -- that favours 17 the defence. 18 So could you explain that? 19 DR. GARY EDMOND: Yes. I think for a 20 position of the state or -- and the prosecution are 21 different to the way the -- in a criminal trial that are 22 different to the position of the defendant. There are 23 all sorts of differences. 24 You have an -- often you'll have an 25 institutionalized organization involved in the
611 investigation and collection of evidence. And so I think 2 it would inappropriate to burden the defendant with the 3 same standard that you might apply to the prosecution. 4 Also the interest are different. You're 5 concerned about -- the state's concerned about not 6 convicting the innocent. And so I think all -- all the 7 most serious burden should be placed on the State rather 8 than the defendant and the defendant is often 9 impecunious. 10 They're in the position where they may 11 have difficulty obtaining expert assistance. Also it's 12 not clear that cross-examination, rebuttal experts, just 13 because of the way trials go and directions of judges 14 again to correct problems with expert evidence abduced by 15 the -- the prosecution. 16 That doesn't mean that there should be 17 open slather on the kinds of evidence or expertise that a 18 defendant should bring in. There are ways of managing 19 that and ways of allowing a kind of more symmetrical 20 approach where the defence brings in potentially less 21 reliable forms of expert evidence. 22 There may be kind of an opportunity to 23 allow maybe the State to bring in those similar types of 24 experts as rebuttal, but I think it would be 25 inappropriate to put the same burden on a criminal
621 defendant as the prosecution. 2 MR. MARK SANDLER: All right. Professor 3 Gruspier, you're testifying in a child protection 4 proceeding as opposed to a criminal proceeding. 5 Should the content of your testimony be at 6 all different? 7 DR. KATHY GRUSPIER: Absolutely not. 8 It's not -- the expert has one (1) opinion, and it 9 shouldn't change depending on which proceeding you're 10 expressing your opinion in because it's not our job to -- 11 to decide what the threshold is for acceptance. If you 12 have an opinion, you have an opinion and -- and really 13 that's all I can say is absolutely not; it shouldn't. 14 MR. MARK SANDLER: Professor Roach...? 15 DR. KENT ROACH: I agree and -- and I -- 16 we don't want to encourage a situation where an expert is 17 going to a -- a child welfare proceeding and, you know, 18 doesn't get their skates sharpened or doesn't wear the 19 same tie that -- that they do when they're testifying at 20 criminal. 21 That said, Professor Bower's (phonetic) 22 paper speaks to the issue that the -- the relevant issues 23 may be very, very different so a healing injury may be of 24 much greater importance in a child welfare proceeding 25 than it is when the expert is opining with respect to the
631 cause -- cause of death, but I agree that the expert 2 should bring his or her best game to whatever proceeding 3 they're -- they're testifying in. 4 COMMISSIONER STEPHEN GOUDGE: There may 5 be an added little dilemma here, Professor Roach, and 6 that is that -- that in the child protection proceedings 7 that we've heard about, they obviously arose for 8 surviving children after an infant died -- immediately 9 after an infant dies -- so that the pathology doesn't 10 have the fullness of time or assistance to reach what 11 might be seen to be an ultimate opinion that would be 12 available in a criminal trial. 13 So I suppose, in Professor Edmond's terms, 14 there would be a scrutiny that might produce an 15 unreliable finding at an early stage where the same 16 witness with the fullness of time and the assistance of 17 additional testing might get over a reliability hurdle. 18 Does that make sense, Dr. Edmond? 19 DR. GARY EDMOND: Yeah, that's a policy 20 decision about when you should intervene and the kinds of 21 evidence you should rely upon. 22 COMMISSIONER STEPHEN GOUDGE: Yes. We 23 heard of a number of examples where the intervention in 24 the child welfare proceedings was instantaneous and so 25 the pathologist has to give what help the pathologist can
641 to the trier in the child protection proceedings because 2 of the risks involved. But inevitably, it may be without 3 -- as Dr. Ranson could tell us -- without a whole lot of 4 assistance from lab testing and so on. 5 6 CONTINUED BY MR. MARK SANDLER: 7 MR. MARK SANDLER: Dr. Ranson, you're 8 next. 9 DR. DAVID RANSON: Yes, I would agree 10 completely. I think that the basis -- the factual base 11 is the same. It may have different -- the factual base, 12 and the opinion extracted from that factual base is the 13 same; there should be no changes to that. 14 Of course, the issue is what does the 15 trier of fact in -- in this particular situation do with 16 that information and that's -- that changes the issues. 17 I think the gatekeeping is a little bit 18 different, however, or can be different in different 19 proceedings and I suppose just to -- to just change a 20 little bit of that framework, what happens if we then 21 move away from the Criminal Justice System and the -- and 22 the child protection process to, say, an inquest? 23 Now, there the rules of admissible 24 evidence, in many jurisdictions, are quite different and 25 one can actually get a direct conflict between a decision
651 that would be made from a criminal justice process and an 2 inquest process indeed in relation to culpability. 3 Now, the problem with that is it raises 4 significant social policies used with the community where 5 the community says, Well, how come if a coroner said "X" 6 that it doesn't even go to court for a criminal process 7 or when it does go to court, that the person -- our 8 example is to say acquitted when the coroner says there 9 was a high level of culpability. 10 Now, as lawyers we have no difficulty with 11 that because the -- the rules are different, the 12 admissibility issues are different, and so on but from a 13 community perspective, they would potentially see that as 14 a -- as a failure of the system -- 15 MR. MARK SANDLER: Okay. 16 DR. DAVID RANSON: -- whatever the system 17 is. 18 MR. MARK SANDLER: All right. 19 Commissioner, we're about to move to a completely 20 different topic -- 21 COMMISSIONER STEPHEN GOUDGE: Sure, do 22 you want to -- 23 MR. MARK SANDLER: -- so that would be a 24 convenient time. 25 COMMISSIONER STEPHEN GOUDGE: Sure, lets
661 adjourn then for fifteen (15) minutes. 2 3 --- Upon recessing at 10:42 a.m. 4 --- Upon resuming at 11:06 a.m. 5 6 THE REGISTRAR: All rise. 7 COMMISSIONER STEPHEN GOUDGE: Please sit 8 down. 9 Mr. Sandler...? 10 11 CONTINUED BY MR. MARK SANDLER: 12 MR. MARK SANDLER: Thank you, 13 Commissioner. Professor Gruspier, just before the break, 14 I neglected to ask you one (1) other question on the area 15 of levels of certainty, and that is that the Commissioner 16 has heard some evidence at this Inquiry that forensic 17 odontologists have developed a scale of certainty in 18 connection with dog bite identification. 19 Does that solve the problem in your view? 20 DR. KATHY GRUSPIER: Forensic odontology, 21 and because it's sort of near to what I do also, that 22 forensic dentistry and forensic anthropology tend to 23 overlap in some cases. I -- I keep abreast of the 24 literature and the Journal of Forensic Science, and to 25 their credit, they've done a lot of research and testing
671 of their own methods in sort of observer error. 2 But what's come out of that research is 3 that they -- there are false positive rates in a lot of 4 people determining whether something is a bite mark or 5 not, particularly with bite marks, so if you have an 6 identifiable false positive, right, where you can make a 7 mistake and rule somebody in accidentally, then a scale 8 of certainty means nothing. 9 MR. MARK SANDLER: Okay. Now, Professor 10 Beecher-Monas, I want to ask you about Daubert hearings 11 and whether they're adequately utilized in the United 12 States, and I -- and I do want to say, in my own defence, 13 for the Canadians in the audience that I have been 14 tempted for years to describe that as Daubert, but I've 15 been corrected. Daubert is a Texan and proud of that 16 pronunciation, I understand. 17 DR. ERICA BEECHER-MONAS: I would say 18 that there are some judges who use Daubert well and 19 frequently and they're exemplary, but the problem is that 20 they are notable in their -- in the fact that there are 21 very few of them. 22 Daubert should be used more than it is, 23 but frequently the Courts tend to circumvent Daubert. We 24 were just talking about forensic odontology and bite mark 25 evidence.
681 That's one (1) of the prime areas that 2 I've been looking into recently also because what happens 3 is the judges will cite to other judges who have admitted 4 this stuff for years, long before Daubert, and it comes 5 in without any examination of its scientific validity at 6 all. 7 And the other -- the -- the other sort of 8 circumventing gambit is to say it's not science, it's -- 9 all it is, is comparison. The jury could do this on 10 their own, but we have an expert to help them, and I 11 think neither basis is adequate. 12 So I would say that, unfortunately, I -- I 13 am hoping that in the United States we start taking 14 Daubert seriously, but we haven't gotten there yet. 15 MR. MARK SANDLER: All right. Well, one 16 more follow-up question on that, if we may. You've 17 heard, and I know you know from -- from your own personal 18 work, that there is this controversy that surrounds the 19 shaken baby, for example, and -- and a whole host of 20 other issues of -- of controversy in forensic pathology. 21 So -- so let's assume the forensic 22 pathologist is coming before an American court on the -- 23 with the potential for a Daubert hearing and -- and that 24 expert is going to opine, based upon his or her report, 25 that the cause of death is shaken baby, or the cause of
691 death is consistent with shaken baby. 2 What do you see as the role of the 3 gatekeeper -- so I'd like you to unpack that and see what 4 are the kinds of issues that the gatekeeper could address 5 there, and what might be the resolution, ultimately, of 6 the Daubert hearing? 7 DR. ERICA BEECHER-MONAS: Well, the first 8 thing is to -- to have that Daubert hearing early, right, 9 in the preliminary hearings in the -- the pre-trial 10 motions. And usually what happens is the -- the Court 11 will -- will -- if -- if the Court is inclined towards 12 having a Daubert hearing, the Court will discuss with the 13 lawyers in these preliminary meetings and these 14 preliminary hearings whether there is going to be a 15 Daubert challenge. 16 And, if there is one, then, you know, then 17 the experts are brought into a hearing for each side, if 18 there are experts on both sides, in the shaken baby case, 19 for example. And the proponent of the evidence will 20 explain, you know, will -- will put on the expert and do 21 a direct and then there will be cross. 22 And the judge, if the judge is one (1) of 23 the judges who takes Daubert seriously, will ask 24 questions, too and determine in the judge's own mind 25 whether there is some validity to -- to this expertise or
701 not. 2 Shaken baby is a very tough question. But 3 at some point the judge is going to have to make a 4 decision whether there is enough scientific basis for the 5 expert's opinion or whether there just isn't, whether 6 it's too controversial an area, there isn't enough data, 7 one (1) way or the other, for even to come in at all. 8 Now, that's a pretty tough decision for a 9 judge to make, I understand. To exclude the shaken baby 10 evidence completely is tough. On the other hand, civil 11 judges are faced with this all the time with causation 12 testimony, and have very little difficulty explain -- 13 excluding tenuous plaintiffs' evidence on causation. 14 So, you know, it -- it's -- I -- I 15 understand this is difficult but I think judges can do 16 it. 17 MR. MARK SANDLER: Now, if I were to 18 propose something to you, and that is, that at the end of 19 a Daubert hearing a judge would have a number of 20 alternatives, and I'm not asking you to weigh in on where 21 the judge should go on shaken baby -- 22 DR. ERICA BEECHER-MONAS: Mm-hm. 23 MR. MARK SANDLER: -- but -- but the 24 alternatives that might be presented to the judge would 25 be to exclude the evidence altogether. Or to permit the
711 expert to articulate the existence of the controversy and 2 what the literature has had to say about it, but not 3 express the ultimate opinion as being insufficiently 4 reliable. Or to allow in both the discussion of the 5 controversy, a discussion of the literature, and, indeed, 6 the opinion. Or where that expert is at on the spectrum 7 that we've heard Dr. Pollanen, Dr. Ranson and others 8 describe, but tailor the use of some of the language, for 9 example, "consistent with." 10 Are all of those variables within the 11 discretion of the trial judge in a Daubert hearing, as 12 you understand it? 13 DR. ERICA BEECHER-MONAS: Absolutely. 14 And they're frequently used in the civil context. I have 15 to say not so frequently in the criminal context, but 16 frequently in the civil context what happens is the judge 17 will limit the testimony or give instructions about the 18 testimony, and let in part of the testimony, but not all 19 of the testimony, and say you may testify to this, but 20 not to your opinion on that, because it's beyond the 21 bounds of your expertise. And I think that's something 22 that the judges need to do. 23 I understand that -- that judges are often 24 are reluctant to do that because it seems very activist, 25 but with this kind of evidence I think it's important to
721 do that. 2 MR. MARK SANDLER: All right. 3 COMMISSIONER STEPHEN GOUDGE: What kind 4 of test is generally applied in the United States about 5 the range of the expertise? 6 That is, how expert does an expert have to 7 be in order to be accepted. I mean, in Canada there is a 8 very low threshold for that? 9 DR. ERICA BEECHER-MONAS: In the United 10 States, also. And -- 11 COMMISSIONER STEPHEN GOUDGE: How do you 12 ever get, then, something excluded as beyond the scope 13 of? 14 DR. ERICA BEECHER-MONAS: Well, because, 15 for example, a forensic odontologist who is trained in 16 human bites perhaps should not be allowed to -- to 17 testify about dog bites. Right? That's beyond the scope 18 of what they trained for. 19 And -- and again, in the civil cases this 20 happens more frequently, where you will have an 21 epidemiologist who would like to testify about something 22 that's outside the scope of epidemiology -- for example, 23 toxicology. 24 And sometimes the -- the judge will say, 25 well, you can testify about the epidemiology, but you're
731 not a trained toxicologist -- 2 COMMISSIONER STEPHEN GOUDGE: Right. 3 DR. ERICA BEECHER-MONAS: -- so forget 4 about testifying about the toxicology, so you -- you can 5 limit it. The judge then, of course, has to be sensitive 6 of that and -- and should ask the questions, if -- if the 7 lawyers don't, about, What is the scope of your training 8 and experience? 9 10 CONTINUED BY MR. MARK SANDLER: 11 MR. MARK SANDLER: All right. Dr. Edmond 12 -- Professor Edmond, you have articulated in your paper, 13 or championed, an explicit and distinctive role for 14 demonstrable reliability as part of the admissibility 15 process. Could you discuss that very briefly? 16 And most particularly, how high, in your 17 view, should the threshold for reliability be set in the 18 context of the kinds of issues that we're discussing 19 here? 20 DR. GARY EDMOND: Okay, first of all, I 21 think that it probably has to be a flexible standard so 22 that it depends on the types of evidence that come in. 23 And it's hard to actually articulate or develop what we 24 mean by reliability in the abstract. 25 I think you're going to have to look for
741 certain types of things. Some will be more revealing 2 than others. So whether you have a feel of them as being 3 kind of extensive, empirical testing; whether a bro -- 4 there's broad consensus based on testing; and there are 5 kind of widely published literatures across -- which go 6 across multiple fields. 7 That's going to be more reliable than 8 where you have one field doing its own kind of in-house, 9 kind of anecdotal type of publication. So there will be 10 flexibility and variation in how that will actually come 11 about. 12 I think -- I -- I do think it's important, 13 though, in cases where similar sorts of evidence are 14 repeatedly cropping up in litigation, in say criminal 15 prosecutions. 16 Then in those cases there may be a greater 17 onus to start to consider -- or -- or look more deeply 18 into the evidence. So if something's going to be used 19 repeatedly by the Crown, an expert -- type of expert 20 evidence will be used repeatedly, then in those cases you 21 need to have an even closer or more critical scrutiny of 22 the evidence to see how it gets used. 23 Just in relation to your previous 24 question, if I could just say something about that, in 25 New South Wales there's been a bit of an issue recently
751 about identifications based on closed-circuit television, 2 so whether the person in a kind of security video is the 3 person who's been charged with an offence. 4 One of the ways that has been managed is - 5 - and this is, I think, important or revealing in 6 relation to the use of certain terminologies -- is that 7 judges -- and this happens in odontology, as well -- 8 Beecher-Monas has been saying -- is that judges will say, 9 you can't -- you can come in and testify about 10 similarities and differences between photographs or 11 security video and photographs of the person who's on 12 trial, but what you can't do is you can't make positive 13 identifications or say it's a match. 14 That's how it's been limited so that it 15 qualified the evidence to allow it in, but I think -- and 16 this is important in terms of thinking about the trial as 17 a whole -- I'm not sure that has the kind of -- or 18 structurally, I don't know if that makes very much 19 difference. 20 Because you have an expert coming in and 21 opining. They can't say, This is the same person. But 22 they say, I can see no differences. And so it has 23 exactly the same formative value or epistemological 24 value, perhaps. And so there's a need for caution on 25 that one.
761 MR. MARK SANDLER: All right. Professor 2 Roach, you heard the questions that I -- that I've put, 3 and particularly about the Daubert experience in the 4 United States, and I put different variables or variable 5 approaches that a judge may take to address forensic 6 pathology. 7 Is there scope for that, in your view, 8 within the Canadian regime? 9 DR. KENT ROACH: Yes. I don't see why 10 there is and I -- I don't think the case law now really 11 addresses these halfway house positions that -- that 12 occur under Daubert, but I'm -- I don't see any reason 13 why judges couldn't exercise their discretion in that 14 way. 15 I mean, one of the issue, and I'd be 16 interested, both Professor Beecher-Monas and -- and 17 Professor Ed -- Edmond would know more about this than -- 18 than I would, but there's an article by Peter Neufeld 19 who's a -- a leading person in the wrongful conviction 20 movement that really makes the argument that Daubert has 21 not helped defence lawyers in the United States; that the 22 challenges to government witnesses, government expert 23 witnesses, have largely failed. 24 So I, you know, just a little bit of the - 25 - the political economy or -- or reality of -- of how
771 those tests have been applied in the United States. 2 DR. ERICA BEECHER-MONAS: Yeah. I -- I 3 think that's absolutely correct. I think that you can 4 see the difference in the way Daubert is used in civil 5 and criminal trials and it's astounding and -- and 6 disheartening, I must say, because we're now using higher 7 standards for expert testimony in civil trials than we 8 are in criminal trials and I think that's disturbing. 9 And I think that Peter Neufeld is 10 absolutely correct; it's an opportunity -- Daubert 11 provided an opportunity that is not being used by the 12 Courts and -- and I can only hope that it will be. 13 MR. MARK SANDLER: All right. Dr. 14 Ranson, what is going on in Australia that would be 15 analogous to the kind of voir dires that -- that we've 16 been discussing here? 17 DR. DAVID RANSON: Well, I mean, I think 18 they -- they're the general principles on admissibility 19 and people run a variety of tests and that -- and those 20 sorts of framework. I mean, to some extent, from my 21 perspective as an -- as an expert, the use of voir dires 22 is -- is less common than you might think, and again, I 23 suppose it's really rather the same principles as the 24 issue for -- for Daubert decisions as well. 25 We certainly do have situations where you
781 are -- are tested but they're -- so it seems to be an 2 awful lot of just general acceptance that if you've got 3 these qualifications and you're in this job then of 4 course you're going to be able to give expert evidence. 5 And the dissection as to which of the elements of the 6 expert opinion you're expressing should be subject to 7 more critical review on their admissibility, I think, 8 just doesn't happen to the same extent. 9 I can give you -- I mean, there are -- 10 when it's -- when it's clear, only when it's really 11 concise as to the issue and it's of significance to a 12 case then it happens. I reckon -- personal experience I 13 can say that, you know, one day I had two (2) Supreme 14 Court trials and I was declared on voir dire to be an 15 expert in blood spatter in the morning and in the next 16 Court declared not to be an expert in blood spatter in 17 the afternoon. 18 Now there was nothing wrong with that. In 19 fact, it was entirely correct, because the specific 20 nature of the expertise in blood spatter in the afternoon 21 was about vectors and angles and laser beams and string 22 and all this sort of stuff, and extrapolations, and 23 mathematical novelling, which is well beyond my 24 expertise. I've -- I've never been consulted on it 25 before. And -- and the one in the morning was much more
791 pragmatic about what happens when you spill blood and 2 reality as a pathologist is you see a lot of spilt blood. 3 So, I mean, there was a -- there was a 4 good dissection of that sort of issue but it was very 5 precise. Normally when blood spatter issues come up, if 6 somebody raises it, the -- the sort of -- say, Well, this 7 is a pathologist, of course they know about blood. And 8 it stops there. It's rare for it to go down to that -- 9 that precise point. 10 And perhaps I would make the case that 11 perhaps we do need to get a bit more precise as to what 12 are their opinions being expressed by the general class 13 of -- of expert in an area and really address those 14 specifics. 15 I think that there's a general lack of 16 that level of specificity on expert or -- or -- of scope 17 of expertise review. 18 MR. MARK SANDLER: All right. 19 DR. KENT ROACH: Just a quick question: 20 Would it be realistic, Dr. Ranson, to not only in your 21 report to go through what your credentials are but to 22 provide a couple of paragraphs about what the essence of 23 forensic pathology is to kind of give all -- the judge 24 and all the parties a heads up about what the heart of 25 your discipline is?
801 Or, conversely, is it that all of the 2 cases are so different that a -- a canned two (2) 3 paragraphs about the essence of forensic pathology would 4 not be helpful? 5 DR. DAVID RANSON: I think it probably 6 would be helpful to put into a report. Typically, these 7 days I'm regularly asked, as part of my -- my -- I 8 supposed have been proved as to be an expert as when I'm 9 introduced by the party calling me to briefly explain, 10 not only who I am; my name, where I work, and some of my 11 qualifications; but to outline what is the role of a 12 forensic pathologist. 13 That is now actually very commonly part of 14 the examination-in-chief that I am -- I am subjected to 15 in -- in the early stages. In part, I suspect that is a 16 reflection of perhaps, inverted commas, the CSI effect; 17 an attempt to try to explain to juries that the forensic 18 pathologists is not the person who runs around with guns 19 and questions people and -- and does all these things, as 20 well. 21 And -- and that actually, I suspect, is a 22 really practical issue. 23 COMMISSIONER STEPHEN GOUDGE: Nor one who 24 comes up with certain answers -- 25 DR. DAVID RANSON: Indeed.
811 COMMISSIONER STEPHEN GOUDGE: -- just 2 after a commercial. 3 DR. DAVID RANSON: Indeed. So -- and I 4 think, you know, there's -- there's humour in there, but 5 there's also some real truth about the fact that -- that 6 I -- I feel now, that I need to explain what I am to a 7 Court more in the last five (5) years than I ever had to 8 ten (10) or fifteen (15) years ago. 9 COMMISSIONER STEPHEN GOUDGE: Could you 10 add to that, Dr. Ranson, the field in the context of the 11 particular case? 12 I mean, so what I hear Professor Roach 13 getting at, and it's something that I've thought about a 14 little, as well, it comes back to what Professor Gruspier 15 talked about, the sort of subjective component of the 16 opinion in grey area cases, and to understand that the 17 science does encompass from time-to-time cases like this, 18 where for the trier being educated about that really 19 matters? 20 It doesn't matter in the case of the 21 bullet in the skull, but it matters a lot in the shaken 22 baby case to know that this science can offer opinions in 23 areas where there is a significant element of grey -- 24 DR. DAVID RANSON: Yes. 25 COMMISSIONER STEPHEN GOUDGE: -- a
821 significant element of subjective, or let me use the word 2 that I couldn't get your colleagues to use yesterday, a 3 degree of uncertainty. 4 DR. DAVID RANSON: Well, there are a 5 number of steps that we've taken to try to resolve some 6 of those issues; one (1) is assembly of, if you like, 7 library sets of current reviews in key topical areas so 8 that we will then, in a particular case, attach those 9 references to the autopsy report. 10 So if we're talking about something that 11 say is dealing with the issues of cardiomegaly as a 12 sudden cause of death, there'll be set papers that have 13 recently come out or similar works that are generally 14 accepted and we'll attach those as either references to - 15 - to the report with a commentary on them, always in the 16 copperplate format. 17 If it's this sort of case, these are the 18 references that go on. And our toxicologists do exactly 19 this with -- the drugs -- 20 COMMISSIONER STEPHEN GOUDGE: Right. 21 DR. DAVID RANSON: -- that are found. 22 COMMISSIONER STEPHEN GOUDGE: Right. 23 DR. DAVID RANSON: Of course, there's a 24 bit of choice there, who chooses what goes into that set, 25 and -- and how often its applied, and how uniformly that
831 -- that process is applied. 2 The other thing I suppose is to -- is in 3 your introduction I -- you know, I have a sort of the 4 frontest piece of all my reports is sort of retaking you 5 through the steps of proving you to be an expert by the 6 party calling you. 7 And you can certainly add elements of 8 qualifications in there that are relevant to the case. 9 It sounds a strange comment, but for example, you know, 10 I'm -- I'm a pathologist and I have a number of pathology 11 and medical qualifications. I happen also to be a radio 12 amateur with some certificates in electronics that -- to 13 get my amateur ham radio licence. 14 Now, when I deal with a case that involves 15 electrocution or man trap cases and things like that, 16 then I might add that to my list of qualifications, which 17 I would never do in a pediatric pathology case because 18 it's simply not relevant. 19 But however, in those cases where it is 20 relevant -- 21 COMMISSIONER STEPHEN GOUDGE: Right. 22 DR. DAVID RANSON: -- to understand that 23 the -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. DAVID RANSON: -- witness had
841 expanded, then I'll include it. That sort of flexibility 2 I think is important and probably isn't done -- 3 COMMISSIONER STEPHEN GOUDGE: A lot. 4 DR. DAVID RANSON: -- as much as it 5 should be. 6 COMMISSIONER STEPHEN GOUDGE: All right. 7 8 CONTINUED BY MR. MARK SANDLER: 9 MR. MARK SANDLER: All right. Professor 10 Gruspier, I've asked all of the others about this voir 11 dire process and -- and your paper expressed some concern 12 in some areas as to what is happening in Canadian 13 jurisprudence right now, including clinical opinions 14 being given in cause of death cases and child abuse being 15 -- opinions being given to a high level -- to a high 16 level of certainty. 17 I'll ask you the same question I asked 18 Professor Roach. Do you see an enhanced role for the use 19 of voir dires to place limits upon what the experts have 20 to say, if anything, in the areas? 21 DR. KATHY GRUSPIER: Well, I think you 22 actually have to even take a step back to who's making 23 the decision to invite all of these experts in some of 24 these cases and -- but certainly the voir dire, it would 25 behove which other -- whichever other expert is called to
851 outline their experience and their understanding of what 2 they're going to testify to, to the same extent that a 3 forensic pathologist would. 4 So if you have a clinician, let's say a 5 radiologist, they should be filling in their background 6 and -- and situating it in the same way that a forensic 7 pathologist would. 8 But I think, I mean, my main concern that 9 I've addressed in the paper is that there are, in some 10 cases, it appears to be too many of these experts. And 11 I'm not quite sure where that issue gets addressed in the 12 process. 13 Is it when -- when -- is it by the Crown? 14 Is it by the trier of fact? Is it at the admissibility 15 stages in the voir dire. I guess I have to answer the 16 question by asking a question, because I think that there 17 needs to be some limit, but I'm not quite sure where the 18 limit would be imposed. 19 MR. MARK SANDLER: What do you think, 20 Professor Roach? 21 DR. KENT ROACH: Well, I mean, I think 22 the Canada Evidence Act actually requires judicial 23 permission for more than five (5) -- five (5) witnesses. 24 So that's one focus. 25 But I -- I agree with Professor Gruspier
861 that it also goes to the Crown. And I think she makes 2 the point very strongly in her paper that it -- it, you 3 know, it may be the most problematic cases where there 4 are the most experts. 5 And -- and there's different ways of 6 looking at that. One the one hand you can say, if we're 7 policing the boundary of expertise very carefully, then 8 we are going to need more -- more experts. 9 But I do worry a little bit about the 10 practical effect of overwhelming the -- the defence with 11 many experts. 12 MR. MARK SANDLER: Okay. Lets assume 13 now, for the -- for the balance of -- of my questions, 14 that -- that the expert evidence is -- is going to be 15 heard by the court in one form or the other. 16 In other words, notwithstanding Professor 17 Edmond's very eloquent paper, the court -- the court has 18 -- has decided that fairly minimal threshold of 19 reliability or even no serious consideration of 20 reliability has taken place, and the expert will be 21 giving testimony. All right? 22 So what I want to ask you about is tools 23 that are available to ensure that the expert's opinion is 24 not over utilized, misinterpreted, or miscommunicated -- 25 all of the communicative issues that we're now drawn back
871 to after our discussion. 2 And -- and my first questions going to be 3 directed to you, Professor Edmond. And that is that the 4 forensic pathologists who have come here find the notion 5 of a -- of a hot-tub process very attractive. 6 The idea being, as -- as now statutorily 7 incorporated in England and elsewhere, that experts are 8 forced, if they don't do so voluntarily, to come together 9 with a view to potentially driving a consensus or 10 exchanging views. 11 Are there any dangers associated with that 12 process in your mind? 13 DR. GARY EDMOND: I think there are. 14 There are some benefits and some risks, I guess, in -- in 15 such an approach. I think the English have drawn upon 16 this giant model where it's kind of mandatory in many 17 civil cases now. It's not used in criminal cases though. 18 MR. MARK SANDLER: Though we've seen that 19 there's now new legislation that appears to be moving 20 into the area of criminal law. 21 DR. GARY EDMOND: Yes, I think that's 22 going to be an issue. Although it may be hard, because 23 of the format of a hot tub, which is basically the 24 experts sit on a panel, not unlike this, except there may 25 be -- and they're operationalized in different ways;
881 there may be more scope for interaction and discussion; 2 there may be counsel leading, and the judge may ask 3 questions as well. Often that might be in the presence 4 of a jury. 5 But that may create difficulties in a 6 criminal trial if it's just an open slather -- or open 7 availability of comments by experts, maybe, very real 8 risks in doing that. 9 It may be that in criminal proceedings 10 it's better as a par -- as a voir dire so that if you're 11 going to have the kind of admissibility determination, 12 you could have the experts sitting together, because I 13 think there are genuine communicative benefits of sitting 14 together. 15 You hear them in real time. You get to 16 see them interact with one another and comment upon each 17 other's evidence. And -- and it's done in public. I 18 think that has a value as well, even if it's voir dire at 19 pre-trial, or pre-trial voir -- voir dire. 20 In Australia there are kind of attendant 21 reforms which seem to go along with concurrent evidence. 22 And they tend to be pre-trial meetings between experts. 23 And usually those pre-trial meetings aren't accompanied 24 by lawyers. 25 And so what will happen in those pre-trial
891 meetings, the emphasis is on producing a standardized or 2 a joint report where the issues are basically narrowed so 3 you get consensus in areas and then disagreement in areas 4 with the hope that the experts will explain why they have 5 a disagreement. 6 In practice, joint report writing seems to 7 develop this process where it -- both of the experts like 8 to write the last version of the joint report. So you 9 have a -- so sometimes there's lots of exchanges between 10 experts trying to, you know, modify little bits and 11 pieces and respond to each other's reports. 12 I mean, the pre-trial meetings that I 13 think -- well, I think they raise some serious issues 14 because it may be as some of these cases would indicated 15 there may be lots of experts for the Crown, and there may 16 be fewer experts, if any experts, for the defence. And 17 it may well be that you'll be overwhelmed as an 18 individual facing that kind of meeting. 19 In simple cases there are issues about 20 whether professionals are able to manage their own kind 21 of liabilities, so we're having pre-trial meetings with 22 maybe three (3) obstetricians working out whether another 23 obstetrician or one (1) of the obstetrician -- sorry, 24 another obstetrician is going to be liable. 25 So they can manage, to some extent, the
901 professional issues by the way they present their 2 evidence. Whether you want the kind of, you know, pre- 3 trial secret conclave of experts in certain types of 4 conditions determining the standards is -- is a real 5 issue. 6 I think there's value in having lawyers 7 present and public accountability, because I'm not sure 8 that the norms of science -- the cooperation and so on -- 9 are really going to kind of manifest in the way that many 10 people think they will. 11 So I think there are -- and I won't go on, 12 but I think there -- there are benefits in the 13 communicative part of it, in the interaction between the 14 experts, but there are a range of risks that come with 15 that as well, and especially if there are inequalities in 16 the resources and numbers of experts that are available 17 to participate. 18 And it's not clear how those things will 19 work in a criminal case where it may be that a -- the 20 defence expert is just overwhelmed by four (4) or five 21 (5) different types of expert that come together, because 22 often the panels will consist of multiple types of 23 expertise. 24 MR. MARK SANDLER: All right. 25 COMMISSIONER STEPHEN GOUDGE: When you
911 say, Professor Edmond, that you're concerned that the 2 benefits may not be realized as much as those naive among 3 us anticipate, is-- is that because of resource 4 inequality or human nature? 5 I guess what I'm getting at is how much of 6 it is human nature and how much of it is like anyone else 7 who's developed an opinion, scientist or not, once taken, 8 hard to modify. 9 DR. GARY EDMOND: Yeah, I think it's a 10 mixture of -- of different -- different things. Experts 11 outside of legal settings don't come to agreement when 12 they meet. If you go to a kind of scientific meeting, 13 sometimes there's screaming. It's not all kind of quiet 14 and civilized, and so -- 15 COMMISSIONER STEPHEN GOUDGE: It's not 16 always a shared pursuit of truth. 17 DR. GARY EDMOND: No, that's right. You 18 could imagine in some of the cases that you've been 19 examining that if there's experts in it before it 20 wouldn't necessarily have meant they would have come to 21 agreement on issues, and especially where there are 22 genuine or genuine differences amongst practitioners 23 about assumptions, interpretations, and especially where 24 things go beyond individual fields. 25 So you've got to integrate different types
921 of knowledges together. 2 COMMISSIONER STEPHEN GOUDGE: As opposed 3 to seeking agreement between differing experts, a number 4 of the cases that we've examined over the last ten (10) 5 weeks, although not in the context of adversaries at 6 trial, but prior to that, there was resort, in effect, in 7 house, to a tie-breaking expert when they were differing 8 views. 9 Is that something that has any appeal? 10 DR. GARY EDMOND: It may, but this starts 11 to kind of resemble some of the issues in relation to 12 maybe a joint expert or a court appointed expert or some 13 -- an independent expert that's brought in to resolve. 14 It has issues or raises questions about selection and how 15 you make those assumptions. 16 I mean, the tie breaker might be, like 17 it's dispositive in the sense of who you pick is going to 18 break the tie in a different way. And so it's -- it's 19 not necessarily meaning that it's going to be more 20 liable. It may be, and -- 21 COMMISSIONER STEPHEN GOUDGE: It's sort 22 of a little anecdote worth noting that we've had several 23 cases of the historic cases we've examined where exactly 24 that approach was used, and the element decision taken on 25 the basis of resort to a third opinion.
931 DR. DAVID RANSON: Besides the only -- 2 pointed out if you were trying to adjudicate over 3 pediatric forensic pathology issues five (5) years ago in 4 this Province, who would you have chosen as your court 5 appointed expert? 6 7 CONTINUED BY MR. MARK SANDLER: 8 MR. MARK SANDLER: Professor Beecher- 9 Monas I know you wanted to speak to this issue. 10 DR. ERICA BEECHER-MONAS: Well, I just 11 wanted to add the point that it doesn't solve the basic 12 reliability issue because, for example, supposing you 13 decide as a court that you -- what you -- what you need 14 is panel of forensic odontologists. If the real question 15 is whether there's any scientific validity at all behind 16 bite mark evidence, that isn't going to answer the 17 question because -- 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 DR. ERICA BEECHER-MONAS: -- all the 20 people you're calling, are forensic odontologists who, by 21 definition, believe that there is some scientific 22 validity behind this -- this particular expertise. 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 MR. MARK SANDLER: You're not putting the 25 fox in the hen house, basically.
941 DR. ERICA BEECHER-MONAS: Basically. 2 COMMISSIONER STEPHEN GOUDGE: No, to get 3 to my paradigm, you have to assume that both experts, 4 though differing, pass some threshold of reliability and 5 then there's some need for some resolution, either by the 6 trier or by a hot tub, or by a tie-breaker. 7 DR. KENT ROACH: But, I mean, a point 8 that I think Professor Edmond makes very well in -- in 9 his article, is that maybe that the adversarial process 10 where you put all two (2) or three (3) before the trier 11 of fact actually resembles or best suits the nature of 12 the scientific controversy, rather than trying to -- to 13 force certainty ex ante. 14 COMMISSIONER STEPHEN GOUDGE: Right. 15 DR. DAVID RANSON: I suppose the only 16 other point is that what you -- what are you actually 17 trying to achieve of -- of that group and in some sense, 18 it's not necessarily a uniform opinion. Perhaps great 19 value will be achieved by getting the -- the group, 20 however, they're made up, to at least come to an 21 agreement on a -- a subset of the -- the data or the 22 evidence. 23 COMMISSIONER STEPHEN GOUDGE: Right. 24 DR. DAVID RANSON: And to more clearly 25 articulate the points that are really in contention --
951 COMMISSIONER STEPHEN GOUDGE: Right and -- 2 DR. DAVID RANSON: -- which will speed up 3 the trial process and focus any -- 4 COMMISSIONER STEPHEN GOUDGE: Focus where 5 the disagreement actually -- 6 DR. DAVID RANSON: And I think that might 7 be a more important output of such a hot tub and then the 8 -- broad evaluation of -- 9 COMMISSIONER STEPHEN GOUDGE: Than the 10 hope for a complete resolution of difference. 11 DR. DAVID RANSON: Yeah. 12 COMMISSIONER STEPHEN GOUDGE: And then to 13 be fair to your colleagues, Dr. Ranson, that have 14 advocated some form of pre-trial gathering -- whether 15 it's hot tub or some other form -- I think it's the 16 second objective that is the reducing of the area of true 17 dispute that they see as the primary beneficiary. 18 I think they -- they've been to your 19 scientific conferences, Professor Edmond, and they know 20 that complete agreement may not be available. 21 DR. DAVID RANSON: Another things very 22 important for jury, because I think it helps to prevent 23 some -- perhaps very peripheral issues -- 24 COMMISSIONER STEPHEN GOUDGE: Right. 25 DR. DAVID RANSON: -- contaminating and
961 making it hard to learn and understand. 2 DR. GARY EDMOND: There are just -- on 3 this point, there are -- I think tactical and strategic 4 issues about the use of concurrent evidence or hot 5 tubbing evidence -- everyone like to call it "think hard 6 evidence" now in Australia. It's less salacious. 7 COMMISSIONER STEPHEN GOUDGE: We've been 8 -- we've been nudged gently in -- away from hot tub, so 9 "concurrent evidence" actually acts as a good phrase, I - 10 - I've been looking for one. 11 DR. GARY EDMOND: Is that -- if you -- it 12 may break the defence case or the prosecution case, 13 depending on where it would actually appear in the trial. 14 And there may be reasons that different groups might like 15 to have that at different times. 16 It may be that the defence, if they would 17 -- if they were offering a kind of substantial defence in 18 -- in a narrative form, that it would be quite disruptive 19 to have their expert appear early on in the trial as part 20 of the prosecution hot tub that sets the evidence out. 21 So there are all -- there are lots of 22 practical and managerial issues that will come out of use 23 of the hot tub. Because it's mainly in civil cases, and 24 in Australia, they have almost all managed by judges. 25
971 CONTINUED BY MR. MARK SANDLER: 2 MR. MARK SANDLER: I -- I raised a -- a 3 fully clothed hot tubbing as one of the tools that might 4 be employed to ensure that expert evidence is accurately 5 and fairly communicated with all of its limitations. 6 I'm gonna go up and down the -- the table, 7 if I may. Are there any suggestions, other than the ones 8 that -- that have already been raised in the course of 9 this dialogue, that -- that you'd like to see implemented 10 that speak to the communicative issues, or the use of 11 expert testimony in -- in court, that you'd like to 12 elaborate on? 13 Dr. Ranson, I'll start with you. 14 DR. DAVID RANSON: I think, in parts, 15 much of this can go towards the -- the training of the 16 forensic witness. Now I know there's a lot of arguments 17 about witness training and that that is a -- has its 18 elements of significant danger in it. 19 And that's, I -- I suspect, there are 20 elements of danger in that. But I think witness training 21 is important. It's important, because there are some 22 very standard techniques, that you can do very simply 23 from a practical viewpoint to really communicate better 24 in the courtroom. 25 And I think witnesses need to know that --
981 they -- to know those things early on in their career. 2 They need to think about being educative from the witness 3 box, rather than dogmatic and opinionated from the 4 witness box. 5 As I said before, the golden rule from my 6 mind is you factualize opinion by saying effectively, You 7 can believe me because, and I think that that style and 8 approach not only is -- forms a better form of 9 communication. 10 But in the current sort of social 11 environment in which experts are often thought to be over 12 pompous or, you know, elitist, then I think the approach 13 that brings a practical, You can believe me because this 14 is the factual base, actually in -- is better at 15 informing juries than the -- simply the -- the elitist 16 who sends us, I say this, therefore believe it. 17 And so I think there's -- there's two (2) 18 sides to that, a real communicative side and also a 19 social acceptability side. But in parallel with that, 20 that will only be truly effective if there's increased 21 training within the legal profession, in the judiciary -- 22 COMMISSIONER STEPHEN GOUDGE: Exactly. 23 DR. DAVID RANSON: -- with respect to 24 understanding the scope and importance and the value of 25 particular classes of evidence in particular topic areas.
991 And we've seen that work very well in DNA, for example, 2 but we haven't seen that, perhaps so successfully, in the 3 field of pediatric forensic pathology. 4 COMMISSIONER STEPHEN GOUDGE: Well, the 5 traditional pressures applied by the system are designed 6 to move the expert away from being the educator and 7 closer to being the dogmatic asserter of a definitive 8 opinion. 9 DR. DAVID RANSON: And I personally 10 perceive that in the witness box from time-to-time where 11 people are literally -- want to push you into opinion 12 evidence at the fringe of your expertise simply, because 13 where is poor agreement and poor understanding of an area 14 and the Court desperately needs help, it is natural, in a 15 human level, to try to get what you can, and that's why I 16 think some of the -- the rules on admissibility and -- 17 and relevance start -- start to break down in practice. 18 19 CONTINUED BY MR. MARK SANDLER: 20 MR. MARK SANDLER: Thank you very much. 21 Professor Roach...? 22 DR. KENT ROACH: Well, I mean, I -- I 23 readily confess to being the least scientifically 24 sophisticated person on this panel, so this may strike 25 people as naive, but I guess my number one (1) thing
1001 would be a plea for plainer language in autopsy re -- 2 reports, whether that's done by a -- through a glossary, 3 or better still, making the forensic pathologist define 4 what the terms are in the body. 5 I recognize that the post-mortem report 6 has multiple constituencies and multiple audiences and 7 that some of these will require specialized reports, 8 whether it's in relation to the treatment of -- of 9 surviving children or corresponding with the co -- with 10 the coroner, but I think that, you know, you have to 11 remember that it's the police, the Children Aid, Crown, 12 defence, judge and jury that are -- may be the ultimate 13 consumers of -- of these reports. 14 And so I was, you know, quite taken by the 15 Home Office standards, which really, you know, seemed to 16 me to suggest, now I don't whether people can live up to 17 this, but they say that the autopsy report must be 18 intelligible and easily understood by non-medical people 19 so as to render it suitable for presentation in Court. 20 And Professor Ranson and Professor Cordner 21 and his colleagues have done a wonderful job in their 22 papers that they've prepared for the Commission, but I do 23 have to confess, as a non-scientific person, a lot of my 24 editorial comment, and I'm sure it was annoying, was, 25 Please define this term for me, can you help me
1011 understand it, so that's -- that's the number one (1). 2 The number two (2), I'll just very briefly 3 -- because we've all -- we've already said, I think that 4 the process of qualifying the expert really should 5 involve some education of the whole Court party about 6 what the discipline is and what the limits of -- of the 7 discipline is, and I think that will pay dividends down 8 the line when experts, not through their own fault. But 9 because the Courts and the lawyers may be dragging them 10 into it, are forced to go off of their areas of 11 expertise, so those -- those would be the two (2) things 12 that I -- that I would consider. 13 MR. MARK SANDLER: Just -- just, 14 Professor Gruspier, before I ask you to comment on the -- 15 on the general question, perhaps you can pick up on what 16 Professor Roach just said. 17 Is there room for expert reports for 18 dummies? 19 DR. KENT ROACH: Thank you, Mr. Sandler. 20 MR. MARK SANDLER: Don't mention it. 21 DR. KATHY GRUSPIER: Well, I mean that's 22 one (1) of the thing -- I mean we exist, as experts to 23 serve the justice system. We should be -- I mean, we 24 wouldn't exist, forensic, you know, we're in service of - 25 - of the justice system of the law. So that's our
1021 consumer. 2 And so we have to make our views known in 3 plain language, knowing that -- well, not dummies, but 4 knowing we have juries and other people that are lay to 5 science. 6 So it -- it's -- it's our job to do that. 7 I consider it the job. And if you -- I mean, if you need 8 to use your medical language in a -- in a forensic report 9 -- and I do too, because it's the way that I describe 10 things -- then when I get to court is the time that I 11 become the educ -- every word I use, I interpret it in 12 common language. 13 It takes a long time. For instance, if 14 I'm going through trauma to a skeleton, and I say, You 15 know, there is a -- because I'm led through my report -- 16 there is a fracture in the medial part of their left 17 clavicle, then I'll say, That means there is a break in 18 the bone right beside the breast bone. And I'm talking 19 about the -- the -- what do we call this normally. 20 Yeah, the collar bone, thank you. Oh, 21 good example. 22 Anyways, but any -- no, as you go along, 23 you have to be consistently aware of the fact that you're 24 speaking to a lay population when you're in the 25 courtroom. So yeah, definitely.
1031 COMMISSIONER STEPHEN GOUDGE: Would it 2 possible to use glossaries with your report? 3 DR. KATHY GRUSPIER: That -- and I think 4 I talked to Dr. Ranson, this came up yesterday. Yes, I 5 mean -- and this sort of goes along with the library set, 6 that I think, you know, if -- if we start to work within 7 forensics towards standards, and we start to think more, 8 Okay, do we need a glossary? Okay, well we can add one. 9 We can have -- I mean, this is a computer 10 technology age, we can just have a standard and have it 11 search the document and print out the -- the definitions 12 to the -- 13 COMMISSIONER STEPHEN GOUDGE: To have it 14 as a best practice -- 15 DR. KATHY GRUSPIER: Yeah. 16 COMMISSIONER STEPHEN GOUDGE: -- Professor 17 Gruspier, might assist reminding the expert of the 18 educational role that is to be played and who the 19 students really are? 20 DR. KATHY GRUSPIER: Well I -- that will 21 assist in reminding them, but I don't think that an 22 expert should need to be reminded. I mean -- 23 COMMISSIONER STEPHEN GOUDGE: Fair 24 enough. 25 DR. KATHY GRUSPIER: -- that's their job.
1041 COMMISSIONER STEPHEN GOUDGE: Fair 2 enough. 3 DR. KATHY GRUSPIER: But having said 4 that, it's clear from the cases that some people don't 5 recognize that as their job. And you -- and they're 6 allowed to slip into dogmatism, because they're allowed 7 to be pulled off their evidence by a -- a counsel who's 8 doing the job that they're set out to do. 9 But if you're properly trained, and you're 10 -- and you know your role, you'll resist that. You will 11 stop it and say, No, you know, you're not going to pull 12 me, I'm not going there. That goes outside of my area. 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 Right. 15 DR. KATHY GRUSPIER: So I think it -- I 16 mean, you have to start with the basic education and -- 17 and bring it through to the court and -- 18 COMMISSIONER STEPHEN GOUDGE: All right. 19 DR. KATHY GRUSPIER: -- you know. 20 DR. KENT ROACH: If -- if I can I just -- 21 just add. I mean, I agree that a glossary is much better 22 than no glossary, but I would worry a little bit that a 23 canned glossary might encourage the use of terms that are 24 just not intelligible to the lay persons. 25 So I actually would think that having to
1051 write it out in brackets might actually be -- be an 2 incentive -- 3 COMMISSIONER STEPHEN GOUDGE: Be even 4 better? 5 DR. KENT ROACH: Yeah. 6 DR. KATHY GRUSPIER: Mm-hm. 7 DR. DAVID RANSON: I have to say, I put a 8 glossary on all my reports, and have done for, you know, 9 many, many years now. But it's a very standard glossary. 10 The ability to tailor every single report with a tailored 11 glossary for that particular cases adds a level of work - 12 - pure workload -- 13 COMMISSIONER STEPHEN GOUDGE: Right. 14 DR. DAVID RANSON: -- I think, that is 15 quite -- 16 COMMISSIONER STEPHEN GOUDGE: Right. 17 DR. DAVID RANSON: -- extreme. 18 COMMISSIONER STEPHEN GOUDGE: Right. 19 DR. DAVID RANSON: Having said that, I 20 mean, one can put together a sensible every day glossary 21 that I think will help the most people in the most set of 22 cases. And that's what I endeavour to do and have been 23 putting on my reports for fifteen (15) years or more. 24 The -- the issue about plainer language, I 25 mean, I couldn't argue against plain language, clearly,
1061 given that I've already just said that the role of the 2 expert is -- you know, is educational, communicative 3 role. 4 However, don't forget that at the end of 5 the day, when we're talking about evaluation of other 6 experts by experts and analysis, lay descriptions in a 7 technical report are imprecise by their very nature. 8 COMMISSIONER STEPHEN GOUDGE: Right. 9 DR. DAVID RANSON: And at some point you 10 need the precision of jargon and of technical jargon to 11 ensure that there is not miscommunication between the 12 experts themselves in their subject area. 13 MR. MARK SANDLER: Okay. 14 COMMISSIONER STEPHEN GOUDGE: That is a 15 good point. 16 17 CONTINUED BY MR. MARK SANDLER: 18 MR. MARK SANDLER: Professor Gruspier, we 19 took you off your concluding remarks. 20 DR. KATHY GRUSPIER: Well I would just 21 add -- I mean, I was going there anyways with that. I -- 22 I think I would add that there needs to be -- and as the 23 expert as an educator, I would -- I think that the 24 defence counsel -- I -- how am I going to put this? 25 I see there is a lack of communication
1071 with defence counsel, sometimes, with the expert, at 2 least personally from my role. So I -- you know, I'll 3 meet the Crown. I'll make them aware of all the issues 4 ahead of time, and I often don't get to do that with 5 defence. So -- 6 MR. MARK SANDLER: Well, you're prepared 7 to do it. 8 DR. KATHY GRUSPIER: Always prepared. I 9 actually go up to them and offer -- and say to them, You 10 know, I'm sorry, we haven't had a chance to meet. You 11 haven't contacted me, but I'm here in the courthouse if 12 you have any questions. Please ask me. And it doesn't 13 always happen. 14 And I think that that sets up this sort of 15 -- I -- I understand the role -- it's adversarial -- I 16 know that. But, I mean, then you start to get -- and 17 this could be a problem for an expert that can't resist 18 the pull and lead them off of their evidence. If -- if 19 you can resist it -- but if you lay out the issues ahead 20 of time and the defence counsel knows just as well as 21 Crown how far you're going to go, then it may stop some 22 of this, you know, tendency to pull off the evidence. 23 MR. MARK SANDLER: If -- if I'm a defence 24 counsel on one (1) of your cases and I came up to you and 25 you were testifying for the Crown, and I said, Could you
1081 just outline for me what you see as the limitations upon 2 your opinion, some of the weaknesses in -- in the opinion 3 as -- as presented, would you have any hesitation in 4 doing that? 5 DR. KATHY GRUSPIER: Absolutely none. 6 And I offer it. I go up and offer it. And, in fact, I - 7 - I make sure that they understand it, in the courtroom, 8 if I haven't had a chance to meet with defence counsel. 9 I make sure that I take the time in the courtroom and 10 outline the limits, whether the Crown leads me there in 11 chief or not. 12 MR. MARK SANDLER: Okay, thank you very 13 much. Professor Edmond...? 14 DR. GARY EDMOND: I'd agree with 15 basically what has been said before me. I think that's 16 important, you know, the clarity, all sorts of reforms 17 have been proposed, you know, allowing fact finders from 18 the jurors to have pens and ask -- and pads and ask 19 questions, all those things useful as well. The use of, 20 kind of, heuristics, diagrams, those kind of things may 21 facilitate better understanding as well. 22 But I think my point would be to go back 23 and reiterate this issue of a prophylactic standard. 24 Basically, because all those things are useful but, 25 arguably, not particularly effective in countering
1091 evidence which isn't valid or isn't reliable; that's the 2 important step. 3 You can't necessarily correct it; cross- 4 examination is inconsistent in its effect in relation to 5 expert evidence. Defence experts have a different role 6 to play in the Court. They don't come in usually as part 7 of a kind of ver -- very well developed kind of narrative 8 of guilt. They're coming in often just to -- to attack 9 pieces of evidence, and so they may not appear as 10 credible. They may appear as they're going through the 11 motions to jurors or other fact finders. 12 Judicial statements at the end of trials, 13 they seem to be rarely understood by jurors from the 14 studies that have been undertaken. They don't seem 15 particularly effective; judicial warnings and directions. 16 So, because these things aren't as 17 powerful or as effective as we'd like them to be, I -- 18 and because often advantages sit with the prosecution, I 19 think there's a need to be willing to exclude evidence up 20 front as they do in many civil matters. 21 MR. MARK SANDLER: Thank you very much. 22 Professor Beecher-Monas...? 23 DR. ERICA BEECHER-MONAS: I would say 24 that I think it's very important for judges to take 25 gatekeeping seriously. And when I say "take gatekeeping
1101 seriously," demand of the experts the empirical basis for 2 their testimony. That's really what counts. 3 You don't -- it -- it's not so much 4 whether they think this happened, but why do they think 5 this happened and that that is what -- judges, after all, 6 are trained in critical thinking. They can do this. 7 They can think about the logical basis for the expert's 8 testimony and decide whether there is sufficient grounds 9 to be relevant to the Inquiry. 10 I think judges can do it, and I think they 11 should do it. 12 MR. MARK SANDLER: I just want to ask you 13 one (1) question while -- while you're here, and that is 14 that in Canadian jurisprudence, there is a tendency to 15 address some of these issues through limiting 16 instructions. And -- and you heard what Professor Edmond 17 had to say; that it's not -- the -- the evidence isn't 18 always convincing that limiting instructions have the 19 desired effect. 20 But, recognizing that, is there a 21 tradition in the United States of -- of limiting 22 instructions in cases where the evidence has been 23 admitted but there is some concern about -- about the 24 overuse or misuse of the evidence? 25 DR. ERICA BEECHER-MONAS: It's all over
1111 the board. Some courts do it and some courts don't. The 2 evidence is very conflicting about whether it's useful or 3 not. One (1) of the problems that I see coming up 4 frequently is the jury will often ask questions of the 5 court, and instead of answering the question, the judge 6 will say, Go back and think about it some more, which I 7 understand. 8 Being -- being a lawyer, myself, I 9 understand why they do that, but it's -- it's very 10 frustrating. So I think the problem is understanding 11 jury instructions, understanding limitations that are 12 placed on the evidence to begin with in order to make 13 them useful, and I think it's -- it's very questionable 14 whether that actually helps. 15 MR. MARK SANDLER: All right. Professor 16 Edmond. 17 DR. GARY EDMOND: Could I -- yeah, could 18 I just say, things like limiting instructions, the 19 availability of defence experts, the possibility of 20 cross-examination, the availability of warnings and 21 directions are often used by judges as a rationalization 22 to allow evidence into a trial and so what should be 23 happening, I think, is they should be looking at validity 24 and reliability because those other things don't support 25 their reliability -- the evidence.
1121 They may -- it may unravel evidence which 2 is unreliable but they may not, and so just because those 3 systemic opportunities exist, we're not sure that they're 4 going to work in the way that we'd like them to and so, 5 again, I think I'll just be right -- a point made by Ms. 6 Beecher-Monas. 7 MR. MARK SANDLER: All right. Now 8 there's one other area that I do want to ask about and it 9 doesn't neatly fit into effective communication so -- so 10 I'm cheating somewhat but I hope you'll bear with me 11 because this is our only opportunity to have Professor 12 Gruspier on the Panel. 13 And, Professor, one of the things that you 14 speak about in the paper are the various biases that can 15 affect or infect the work of -- of a scientist, and -- 16 and you provide as illustrative one work that was done in 17 connection with fingerprint examiners. 18 Could you outline what that was all about 19 and it's a preface to a question that I'm going to direct 20 to the Panel. 21 DR. KATHY GRUSPIER: Yeah. This 22 particular study, although it had a small sample size, 23 was the beginning of a larger study that was done by a 24 couple of researchers in 2006. They gave a group of 25 highly-experienced fingerprint examiners, like, the top
1131 world class fingerprint examiners, prints that they had 2 previously identified and either positively ruled in or 3 ruled out as a match. 4 But what they did was they gave them to 5 them and they provided some biassing information sort of, 6 like, well, you know, the person was actually, you know, 7 we're giving you this print but the person was actually 8 in jail when the crime was committed. 9 So they -- they gave them these little 10 confirmation-type bias preconceptions and they found that 11 it made a difference and that they ended up getting false 12 positives, even though scientifically and previously they 13 had made the right determination, with this -- with this 14 little bit of bias that had seeped in they made errors. 15 MR. MARK SANDLER: All right. And that's 16 -- that is the preface to the last line of questioning 17 that I want to pursue with each of you and, that is, that 18 the forensic pathologists who have testified here have 19 all been asked this question: 20 Should the police filter out any of the 21 information in their possession with a view to avoiding a 22 concern about colouring what the pathologists might 23 opine? 24 And I think it fair to say that it was a 25 universally held view of the forensic pathologists that
1141 are here that there should be little or no filtering out 2 of information that makes its way to the forensic 3 pathologist, because all of that kind of information, 4 except perhaps the most clearly irrelevant, could inform 5 the approach that the pathologist takes to the autopsy; 6 the testing that is performed; the gross and other 7 examinations that'll take place and the advice that the 8 pathologist might give to the police as to how to pursue 9 the death investigation. 10 So the question is: How does one 11 reconcile what we've just heard from Professor Gruspier 12 and what we've heard from the forensic pathologists on 13 that issue? I'll start with the forensic pathologist. 14 DR. DAVID RANSON: Thank you. Well, I 15 probably'd agree with my colleagues, that's the first 16 thing to say. 17 I think there is a little bit of a 18 difference between the fingerprint question which is "is 19 it or is not a match," and that is a single point of 20 output of the process and the integrative approach that 21 forensic pathologists take into a huge range of data and 22 potentially a huge range of questions are going to be 23 asked; not only what is the cause of death; was this an 24 offensive injury; was this an unoffensive injury; was 25 this explained?
1151 In other words, the range of data coming 2 out is so large and the court generally expects that, 3 therefore, the range of input to correspond is larger. 4 Are forensic pathologists likely to be 5 swayed by these things like fingerprint people? 6 Absolutely, of course they are. 7 And that's, if you like, what the role of 8 the -- of the adversarial process is to dissect that 9 process out. And that's why transparency, in terms of 10 all of the processes have gone on and exchanging that 11 information from the beginning, is so important. 12 Do you, with training, and can you, with 13 training, better educate the forensic expert to have a 14 more judicial approach to information that is -- should 15 be properly excluded from their analysis and -- and or 16 included within their analysis. 17 Well, I think these days the increased 18 professionalism and the increased legal training of 19 pathologists that's happening, I think now nearly -- I 20 think only a third of our pathologists in our institution 21 have law degrees now. 22 That is changing very much the nature of 23 the -- what our forensic pathology's can offer the court 24 system. And if -- if the legal training of forensic 25 pathologists does nothing but to equip them to understand
1161 the distinction in evidence that should be used in their 2 deliberations and that should be excluded, we might have 3 had a major, major success. 4 MR. MARK SANDLER: All right. Thank you 5 very much. Any of the other panellists want to comment 6 on that issue? 7 DR. KENT ROACH: I -- I mean the problem 8 that -- that the fingerprint study points out is -- is 9 what some people call confirmation bias. Others may call 10 it, at least, at -- at the end of the day, tunnel -- 11 tunnel vision. 12 And, you know, I have to say that I agree 13 that there should be transparency about what goes in, but 14 there may be summary information that could be outside of 15 the bounds of -- of -- of relevance. 16 And -- and I also think that we have to 17 and perhaps, forensic pathologists are immune to this in 18 a way that -- that say I'm not. But these are traumatic 19 cases and even scene visits, what gets picked up at a 20 scene visit. 21 I mean, it may be, at the end of the day, 22 it's better for the pathologist to go to the scene, but 23 the pathologist is going to see things that may influence 24 his or her opinion. 25 And I'm not sure the fact that it's a more
1171 cumulative process as -- as opposed to the more binary 2 process with fingerprint matching, -- I'm -- I'm not sure 3 that that doesn't remove this danger of confirmation 4 bias. 5 But Dr. Ranson's last point, I think, is a 6 very good one; that, you know, all of the commissions or 7 many of the commissions that looked at wrongful 8 convictions have said, We have to educate prosecutors and 9 police forces and -- and lawyers about the problem of 10 tunnel vision. And I guess I would add to that, we 11 should educate forensic experts as -- as well. 12 MR. MARK SANDLER: Thank you, any other 13 comments? Professor Edmond...? 14 DR. GARY EDMOND: I think this is 15 probably an issue where we're talking about types of 16 opinions which are most interpretive. So where there are 17 going to be establish protocols so there's a direct 18 technical way to produce evidence, it's going to be less 19 of an issue, you would think, on average. 20 Although the fingerprinting may challenge 21 that a little bit although it's still the -- the 22 comparison is interpretive. At the end, it's a 23 subjective analysis by the light and fingerprint analyst. 24 The other concern I have with this is that 25 as it turns out at the end of the trial or in the trial,
1181 sometimes evidence -- there's a double-dipping of the 2 evidence. Sometimes social evidence may inform the 3 opinion of an expert in a way that is background or goes 4 into their kind of understanding of what's going on and 5 that may be described as part of the -- separate part of 6 a circumstantial case later on in the trial. 7 So you might have -- or as collaboration - 8 - so you might have an expert that knows about other 9 parts of evidence and has used those in their assessment 10 of -- or the determination of their opinion and yet that 11 gets presented in the trial as the opinion as separate 12 from the other circumstantial evidence as if they existed 13 as corroborative of one another. 14 And so that's an issue. I notice that -- 15 in some of the cases in New South Wales in relation for 16 the closed circuit television -- in those cases, we have 17 things where the processes could actually be improved. 18 It may well be that the police officers send one (1) set 19 of photos of the accused and -- the CCTV images in the 20 one (1) envelope and send it off to the anatomist or the 21 forensic anthropologist who's going to look at the -- 22 look at them, and that's not a desirable way of going 23 about disclosing information. 24 And sometimes it's not necessary, I think, 25 to tell the forensic scientists and experts about things,
1191 although that won't always be easy to determine in 2 advance of the time. 3 Sometimes what's necessary will be hard to 4 know, but it may influence or bias decision-making. 5 MR. MARK SANDLER: All right. 6 DR. ERICA BEECHER-MONAS: Yeah, I would 7 agree with that. I mean, one (1) of -- I think one (1) 8 of the problems is, perhaps, it is necessary to make a 9 crime scene visit for the forensic pathologist. But does 10 the parenda -- forensic pathologist actually need to know 11 that the boyfriend has been in and out of jail -- of the 12 dead woman -- the boyfriend has been in and out of jail 13 for the last ten (10) years. 14 You know, that doesn't really help 15 figuring out what happened. So I think, in some sense, 16 and -- but -- but these kinds of conversations are fairly 17 common, all right, between the police and the -- and the 18 expert. 19 And so I think it's very important to 20 train police as well as the experts about what their role 21 is, about what the expert's role is, and try and -- I 22 don't know how you would limit the kind -- those kinds of 23 conversations, but I think it's very important 24 understanding that there is this cognitive bias to try 25 and limit and -- and do some kind of filtering that way.
1201 MR. MARK SANDLER: All right, thank you 2 very much. 3 DR. KATHY GRUSPIER: Can I just add to 4 that -- 5 MR. MARK SANDLER: Yes, of course. 6 DR. KATHY GRUSPIER: -- because I go to a 7 lot of scenes. An educated expert -- it isn't difficult 8 to actually say to the police, Okay, you're talking about 9 the suspect now. I don't need to hear that. I'll walk 10 away. 11 I mean we -- we're actually capable, if 12 we're educated enough, of filtering out what is not 13 important because there can be, in some cases, very 14 bright lights, you know. 15 Anything that has to do with the scene or 16 the body is fine, and anything that has to do with who 17 you think did it, is never going to be relevant and you 18 can make that -- you can say that at the scene, so... 19 MR. MARK SANDLER: Yeah, we -- we -- Dr. 20 Ranson doesn't necessarily agree, but I think that 21 viewpoint's been very well articulated in the prior 22 panel, so... 23 I understand, Commissioner, that four (4) 24 counsel for parties have one or two (2) questions of our 25 panel.
1211 Mr. Gover...? 2 3 QUESTIONED BY MR. BRIAN GOVER: 4 MR. BRIAN GOVER: Thank you. I really do 5 only have two (2) questions, and I'll lead with a 6 question to Professor Roach with the invitation to others 7 to jump in and contribute as they deem fit. 8 Professor Roach, there's been some 9 discussion about the potential for a different standard 10 for admissibility of evidence if tendered by the 11 prosecution versus tendered by the defence, and my 12 question to you is this: In your view is the probative 13 value prejudicial effect calculous, a sufficiently robust 14 device to accommodate the necessary flexibility? 15 DR. KENT ROACH: I think that that test 16 is certainly one (1) that is relevant and will be harder 17 on Crown evidence than it is defence evidence. And I 18 think I started the panel with my discussion of 19 inculpatory and exculpatory, so I -- I agree with -- with 20 that premise that it will catch it. 21 On the issue, though, of whether the 22 threshold gatekeeper test should necessarily be -- be 23 different, I have to admit that I am attracted to 24 Professor Edmond's suggestion that it is because the 25 state has the resources to establish some evidence-base
1221 and some reliability, at least, in -- in this area, that 2 I think it is something that should at least be seriously 3 considered. 4 MR. BRIAN GOVER: All right. Dr. Ranson, 5 I saw you nodding your head in agreement. 6 DR. DAVID RANSON: I -- I think that's 7 generally the case, yes. I mean -- 8 MR. BRIAN GOVER: Fair enough. And my -- 9 my last question relates to the role of the expert and 10 this issue of partisanship dogmatic evidence and the 11 gatekeeper function, and I'll invite any of you to 12 comment on, not a limiting instruction but an after-the- 13 fact exclusion, because often we're only going to know 14 about dogmatic evidence once it's given. 15 And I'll start, perhaps, with Professor 16 Beecher-Monas. Is there -- is there scope for exclusion 17 of evidence once given on the basis of it being so 18 completely partisan that it -- it negates the role of an 19 impartial expert. 20 DR. ERICA BEECHER-MONAS: That's a hard 21 question for me to answer. I think there could be. I 22 think it's certainly within the scope of the judge's 23 powers. I -- I'm not really aware of it being done very 24 often, if at all. 25 I think what's more likely to happen is it
1231 will go to the jury. And the jury is going to be told to 2 use it for its weight or to assess the weight. And then 3 on appeal the question comes up about whether the 4 evidence should ever had been admitted in the first 5 place. 6 Now one of the problems that I think is a 7 severe problem in the United States is that the standard 8 of review is abusive discretion. And that standard is a 9 very high standard. 10 And -- and what it means is that very 11 frequently the courts of appeals say, Well, you know, 12 this judge heard the testimony of the expert and thought 13 it was admissible, so we're not going to really examine 14 the basis. 15 Now there are some courts of appeals that 16 do a far better job of that. But they -- what they say 17 is, Look, you know, there's clearly no scientific basis 18 for this evidence, it should have been excluded, and 19 therefore we're going to exclude it. But there's a 20 reluctance to take that step. 21 MR. BRIAN GOVER: Professor Edmond...? 22 DR. GARY EDMOND: I think that kind of 23 activity in the trial seems to be, on the empirical 24 research I've seen, quite ineffective. So that's a risk 25 in -- in allowing that to happen.
1241 Though often what will -- what seems to 2 happen is that it was a longer time period going on here, 3 so it's more retrospective. And so we're dealing often 4 with appellate decisions or in relation to public inquiry 5 where it's different. 6 And I would agree, I think the standard of 7 review by appellate courts often gives too much in 8 relation to expert evidence, in particular, defers too 9 much to the trial judge. And I think that there should 10 be, in relation to expert evidence, a de novo review. 11 MR. BRIAN GOVER: And Professor Roach, 12 the final word...? 13 DR. KENT ROACH: Yeah. I mean, I think 14 it's important to remember that jury trials are an 15 increasing rarity in Canada. So I think that the remedy 16 that you suggest might actually have some effect in a 17 judge-alone trial. 18 And although it wasn't done on grounds of 19 partisanship, I'm very intrigued by the way the Ontario 20 Court of Appeal treated the expert -- the -- the evidence 21 of two (2) experts in the Truscott reference, where my 22 reading of the Court of Appeal, with respect to those two 23 (2) experts, is they essentially gave them no weight, 24 because it was all based on experience, and there wasn't 25 an evidence basis for the experts' decision.
1251 So I think that what you suggest is 2 something that is -- is very much alive. 3 MR. BRIAN GOVER: Thank you. 4 MR. MARK SANDLER: Mr. Manishen...? 5 6 QUESTIONED BY MR. JEFFERY MANISHEN: 7 MR. JEFFREY MANISHEN: Thank you. As it 8 turns out, my questions do follow up on some of the areas 9 that Mr. Gover raised, and it's -- it's along the 10 following line. 11 We've talked about what happens after the 12 dogmatic evidence is given. And Dr. Ranson's talked 13 about the concept of training to be able to prevent the 14 biassed or dogmatic evidence from be given -- being given 15 to begin with. So that's going to be the focus. 16 We've seen in evidence in these 17 proceedings that there is a very real risk of acquiring a 18 degree of bias, potentially, in the emotionally charged 19 nature of the evidence that a forensic pathologist has to 20 give; from association with a group that might well have 21 an advocacy role with respect to the prevention of child 22 abuse and neglect. 23 So from the standpoint of preventing that 24 bias from coming in -- and this is for you, Dr. Ranson, 25 that I'll direct the question.
1261 How do we prevent that bias from being a 2 potentially infecting aspect of our -- of our forensic 3 pathologist evidence before he gets to the stand? 4 What training is needed? What remedies? 5 What methods are available to deal with those? 6 DR. DAVID RANSON: I think it's very -- 7 it's very difficult to get to the specifics there of what 8 I've been trying to portray -- project is that the -- the 9 more understanding of the legal process and legal 10 decision making, legal conventions -- strictly 11 jurisprudence, if you like -- that an expert has, then 12 the -- then the less that they're going to be affected in 13 that process. 14 And we've seen in, for instance, Edmond's 15 paper, where he's referred to the federal court rules in 16 relation to expert witnesses. These are very fundamental 17 pieces of guidance that -- that if an expert witness is 18 reading that sort of stuff regularly, is seeing that 19 material coming out -- we see the home office guidelines 20 coming out. 21 These all point to an attempt to reduce 22 things like -- like bias. We also know, however, that, 23 you know, from a psychological point of view, really, 24 it's extraordinarily difficult to completely remove it. 25 I suspect the best thing we can do is to
1271 make sure that are our experts are thoroughly conversant 2 with their legal responsibilities in a forensic sense; I 3 mean forensic then as a court sense, not forensic 4 science. 5 MR. JEFFREY MANISHEN: And even apart 6 from the issue of that level of familiarity. We've seen 7 it with respect to even a controversial area such as 8 Shaken Baby Syndrome. It seems to almost divide up on 9 party lines. 10 And we've seen that there are those who 11 are rigid adherents to the belief in the Shaken Baby 12 Syndrome as being valid, and are resistant to any 13 challenge, while there are others, frequently defence 14 retained experts, who will seek to challenge it. 15 How do you deal with that kind of 16 difficulty, because we have identified there are strongly 17 charged opinions each way in an area that's 18 controversial. 19 DR. DAVID RANSON: I mean some 20 jurisdictions have clearer party lines than others. Some 21 have a -- have a legal system that has, you know, 22 defenders and prosecutors. I come from a system where 23 that is not as extreme. And as the legal system isn't 24 quite so extreme in those ways, I think sometimes the 25 witnesses are not so extreme in those ways, because the
1281 whole system is -- is less polarized, let us say. 2 However, I mean in a system where you have 3 a high degree of polarization where sometimes, you know, 4 you -- you force witnesses out by engaging with the other 5 side first that -- that sort of tech -- technical sort of 6 structure, then I think it's gonna be a lot harder. I 7 don't have an easy answer to that. 8 MR. JERRY MANISHEN: And Professor Roach, 9 I'll ask this one for you. 10 We've seen it in the past with respect to 11 evidence of the Child Abuse Accommodation Syndrome and 12 what it took, after that evidence was admitted over the 13 course of years, to ultimately challenge that basis. 14 Can you foresee that we may see a similar 15 form of challenge to Shaken Baby Syndrome evidence even 16 being admitted in the future? 17 DR. KENT ROACH: Yes, I mean -- I mean, I 18 -- I think Trockmine (phonetic) opens the door to 19 characterizing areas as novel scientific evidence. I 20 think on -- on the other point, there's also the 21 importance of -- of broad forensic expertise. So I think 22 in an ideal world, a forensic pathologist would not just 23 do child cases, because I -- you know, they are difficult 24 and I -- I would think they would be emotionally draining 25 -- but would also do others.
1291 And I also think, in an ideal world, you 2 would want a situation where Ontario's forensic 3 pathologists make themselves available for defence work, 4 perhaps in another jurisdiction. And you could even 5 imagine reciprocal sort of arrangements so to get away, 6 perhaps, from this kind of partisanship and move closer 7 to the -- to the more kind of balanced playing field that 8 Dr. Ranson is speaking of. 9 MR. JEFFREY MANISHEN: Just a one (1) or 10 two (2) more questions then to follow up. If -- if we 11 have a situation where, in the training realm, it might 12 involve the review of transcripts with someone that might 13 be impractical, Professor Edmond, can you see some -- 14 some benefit in that regard? 15 The difficulty we have, of course, is in 16 the battleground of a courtroom, sometimes people tend to 17 revert to form. Can you see some process whereby that 18 individual might break away from the habits? We know 19 that it can happen. You can believe you'll be impartial 20 and get in there and not do it. 21 DR. GARY EDMOND: Yeah, I think under or 22 beneath your basic question is you're ask -- you've been 23 asking panellists to find ways where you could resolve 24 expert disagreement. And if we -- if we knew that or we 25 had some kind of simple way of doing it, none of us would
1301 be here. It's -- this intractable, and we haven't been 2 able to get over these kinds of issues. 3 It could well be that for some people that 4 kind of training, that review, will help, but I'm not 5 sure that it will. I mean, it -- presumably lots of 6 people who hold quite partisan views or are proponents of 7 particular perspectives have heard lots of alternative 8 perspectives. You know, they participate in trials 9 often. They've heard it all. 10 It's not that by exposing them to more or 11 getting them to think harder, they're going to change 12 their -- their mind and maybe that's part of the dilemma, 13 but it's not one that's easy to overcome. 14 MR. JERRY MANISHEN: Well, then it may 15 lead if the individual is persistently dogmatic, to 16 simply not being suitable to do the job. 17 DR. GARY EDMOND: That's a possibility, 18 and that may be something that comes up as part of a 19 consideration in relation to admissibility if -- if for - 20 - for the judiciary, I guess. 21 MR. JERRY MANISHEN: Or a form of 22 performance review by that individual's supervisor. 23 DR. GARY EDMOND: For sure. I mean, that 24 may happen. 25 MR. JERRY MANISHEN: And finally, for
1311 Professor Gruspier, the issue of communication with the 2 defence -- frequently it's -- and I represent the -- I'm 3 here on behalf of the Ontario Criminal Lawyers 4 Association, so that's my bias -- frequently it -- it can 5 become an issue of time, but the other way is what's the 6 most convenient way to be able to get the full parameters 7 of your opinion, the kinds of areas that you would have 8 liked to of talked to defence about, would there be a 9 reason why they wouldn't already be in your report to 10 begin with? 11 DR. KATHY GRUSPIER: Yes, because I 12 don't, as a matter of practice discuss all the potential 13 implications of the conclusions I may draw in the report. 14 Largely because I've seen in the past -- and I may as a 15 result of this change my practice -- my report has been, 16 you know, summary of observations. 17 It's going to court. I know when I get to 18 court, that's when I have the chance to explain and 19 expand upon and ensure that everybody understands the 20 limitations. Having said that, if there are specific 21 limitations with some of the interpretations I'm making, 22 those are in the report, as well. 23 So it's -- it's an opportun -- but it's an 24 opportunity also to -- to make sure that they're aware. 25 I mean, it's part of your job as an expert to ensure --
1321 you don't know -- defence counsel may know very well all 2 of the issues, or they may not. 3 It depends on so many things. As we know, 4 you know, some people can't afford defence counsel. 5 Sometimes they're given defence, some -- I won't go 6 through all of the issues, but we know what the potential 7 problems are. So it's -- I think it just behoves the 8 expert to ensure that defence is on the same page. 9 I mean we get to spend more time with the 10 Crown attorneys, just by virtue of them, you know, coming 11 and having meetings with us pre-trial, where we're -- 12 we're working through that system. So it's just to be 13 fair to defence. 14 DR. DAVID RANSON: Could I -- could I 15 comment on that? 16 MR. JEFFERY MANISHEN: Sure. 17 DR. DAVID RANSON: I mean one of the 18 problems, of course, is that when you prepare your 19 report, you don't know if there is a defendant or what 20 the nature of the defence might be. 21 Whilst you may wish to cover, what I call, 22 common or sensible, or areas of, you know, normal sort of 23 defence issues that might come up in a particular case -- 24 and most forensic pathologists will be aware of four (4) 25 or five (5) classical areas of defence and address those
1331 defence injuries, that sort of thing -- you can't 2 possibly know what's the real defence issues will be. So 3 it's impossible, in theory, to cover them all. 4 There's -- there's also the issue where -- 5 and I've experienced both sides of this. I would say 6 that the most senior defence counsel that I deal with are 7 prepared to meet me, are very keen to talk to me, and 8 it's -- it's very effective. 9 The more junior, I would say, by and 10 large, don't. And that's a -- that's a general, sweeping 11 generalization. But I think inexperience at -- at the 12 Bar tends to let people often worry about where they're 13 going, and they tend to rely a little bit on ambush-type 14 tactics, perhaps, where they don't really want to show 15 their hand at all to the experts. 16 I think more experienced people know that 17 -- that they will gain more than they will lose by that 18 sort of communication. 19 MR. JEFFERY MANISHEN: Sure, and the 20 dialogue with the more experienced counsel is much more 21 focussed as well. 22 DR. DAVID RANSON: Absolutely, and it 23 also means that the trial itself, or the evidence 24 relating to that expert's trial, becomes much more 25 focussed. And they get a clearer and more discrete
1341 message across to the trier of fact. 2 MR. JEFFERY MANISHEN: So that only 3 basically confirms the -- the need for an incentive to 4 ensure that experienced counsel for the defence are 5 participating in these more serious cases? 6 DR. DAVID RANSON: Indeed. 7 DR. JEFFERY MANISHEN: Thank you. 8 9 QUESTIONED BY MS. JACKIE ESMONDE: 10 MS. JACKIE ESMONDE: Good afternoon. My 11 name is Jackie Esmonde. I'm a lawyer representing a 12 coalition made up of Aboriginal Legal Services of Toronto 13 and the Nishnawbe-Aski Nation. 14 And I'm going to address my questions 15 mainly to you, Professor Roach, though if other 16 panellists wish to weigh in, I'm happy to hear your 17 comments. 18 Now the discussion around gatekeeping 19 today has focussed for the most part on the gatekeeping 20 function of judges in admitting expert evidence. 21 And we've heard from defence counsel 22 testifying at this proceeding that there's a concern that 23 there's a risk that accused persons, knowing that there's 24 an expert opinion out there, will weigh the risks and 25 will make the decision to accept a guilty plea for a
1351 lesser sentence, potentially innocent persons doing so. 2 So I suppose our reliance on judges as gatekeepers in 3 that circumstance is -- is sort of too late. 4 I'm wondering if you can assist us with 5 some thoughts on how we could address that kind of 6 problem. 7 DR. KENT ROACH: I mean -- I mean, the 8 issue in this case of someone faced with a murder charge 9 and an expert report that potentially, maybe, doesn't 10 point out the frailties of the expert report -- because 11 they're waiting for that to happen during the trial -- 12 and the person making a decision to plead guilty to 13 manslaughter or infanticide is one that, you know, 14 personally worries me. 15 Because our -- the structure of our 16 criminal law in a lot of these cases would be that, you 17 know, you have a person who is looking at a downside of 18 mandatory life imprisonment and an upside of getting the 19 case over and probably receiving a relatively lenient 20 sentence or, you know, not years in the penitentiary for 21 manslaughter or infanticide. 22 And so that's -- that's why I do think 23 that both in terms of quality assurance, but also a 24 report written in plain language that ideally illuminates 25 the limitations of the opinion is -- is very important,
1361 as well as access to -- to defence experts, because most 2 cases do not go to trial. We know that isn't -- 3 MS. JACKIE ESMONDE: Well, the next part 4 of my question arises from the discussion of bias that 5 we've had in the last part of today's session. And, 6 apart from confirmation bias, we know that there are 7 other types of biases such as racial bias in the criminal 8 justice system, unfortunately. 9 And I know, Professor Roach, that you are 10 very familiar with a number of reports and Supre -- 11 Supreme Court of Canada judgments that have identified 12 systemic discrimination against Aboriginal people being a 13 problem from the investigation stage to the sentencing -- 14 sentencing stage. 15 So one (1) suggestion I'd make in terms of 16 dealing with the issue of these cases that don't make it 17 to trial and biassed against certain kinds of accused 18 persons, is potentially pre-charge screening or some kind 19 of front end very careful look at the pathology evidence 20 to see if -- if a charge should be laid. 21 Because once a charge is laid, you know, 22 the train is out of the station, there's -- it's very 23 hard to put the brakes on that. And do you see that as 24 kind of a potential useful role in dealing with that 25 problem?
1371 DR. KENT ROACH: Yes, I -- I would agree 2 that the pre-charge screening is very important. Also 3 pre-charge selection. Why -- why were some of these 4 cases charged as murders and others were charged as 5 manslaughter or infanticide, given the -- the huge 6 repercussions of -- of it. 7 I mean, in an analogise field of one of my 8 colleagues, Martha Schaeffer (phonetic) has done some 9 study looking at the Lavallee (phonetic) decision on 10 battered women self defence. 11 And it was very intriguing that she found 12 that it was most frequently cited by courts in reported 13 cases -- admittedly not -- not a perfect sample -- in 14 cases where women were pleading guilty to manslaughter. 15 And I -- I think it is an analogise 16 situation where the caregiver facing a murder charge, 17 facing a -- a report that there will be a lot of pressure 18 if a plea is available to manslaughter or infanticide to 19 go that way. 20 MS. JACKIE ESMONDE: The -- just to 21 finish up are you familiar with the Aboriginal justice 22 policy and the Crown -- the Crown Policy Manual? 23 DR. KENT ROACH: Actually, I'm afraid 24 not. 25 MS. JACKIE ESMONDE: Okay then I'll leave
1381 that. But I would like to take this opportunity to 2 invite the panellists if they have any comments to make 3 on the questions. 4 DR. ERICA BEECHER-MONAS: I do. I think 5 it's -- I think you raise a very important point. 6 Because the pre-charging decision needs input by public 7 defenders or -- I don't know who it would be and I -- I 8 don't think there's an institutional way to do this yet. 9 But I agree that there ought to be, 10 because, after all, you don't have a lawyer until after 11 there's been a charge, right? 12 So you don't know that there's going to be 13 a defence. I -- I think that there needs to be some way 14 of making sure, whether it's through a -- you know, I 15 don't know how this would work exactly. 16 But I think it's very important to get the 17 defence perspective in early. 18 DR. DAVID RANSON: I suppose anything I'd 19 say, and I'm not sure this is reassuring or more 20 concerning is amongst the forensic pathologist that I 21 probably deal with most of the time and chat and discuss 22 cases within an informal way, we seethe and, you know, 23 boil up inside about cases where someone has been charged 24 and we're looking at our report and our evidence and 25 saying, How on earth? You know, I'm -- I don't know how
1391 you're coming to this on the basis of what we have said. 2 Now, obviously, there's much more in the 3 evidence than -- than that. But given the -- the primacy 4 at least in a homicide matter in relation to the cause of 5 death in the report, we are more often sort of infuriated 6 by, you know, how on earth have we got there than we are 7 the alternative, like how -- how was this person found 8 not guilty because of our report. 9 That will be the balance point amongst the 10 people I deal with. 11 MS. JACKIE ESMONDE: Thank you. 12 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 13 Esmonde. 14 MR. MARK SANDLER: Finally, Ms. Fraser. 15 16 QUESTIONED BY MS. SUZAN FRASER: 17 MS. SUZAN FRASER: My name is Sue Fraser 18 and I'm here on behalf of an organization called -- which 19 Dr. Renton knows -- Defence for Children International. 20 And just one (1) question that has -- I've 21 been thinking about since we had our expert panels come 22 to do their reviews of the cases; here is the concept, 23 the literature, and the literature tells us this and the 24 expert giving evidence and saying, Well the literature 25 tells us this, and for, you know, for the defence or for
1401 the layperson, it might as well be, Well, the Bible tells 2 us that it is so. 3 So is there value in a recommendation from 4 the -- from one of the parties or from the Commission to 5 having experts articulate as part of the explaining how 6 they reached their conclusions, the studies that they 7 rely on? 8 And I think, there's some experts who 9 would -- would do this in their -- engage in this in 10 their practice of report-writing. Is that something that 11 you think would be helpful, and I -- anybody who wants to 12 jump in...? 13 DR. DAVID RANSON: Well, yes. 14 DR. ERICA BEECHER-RANSON: I -- I 15 completely agree with that. I think it's so important 16 that -- I don't know if you can attach a bibliography to 17 the report or something like that because, so frequently, 18 experts will rely on something that does not support 19 their position, and there is no way to -- to know that 20 unless you have access to their bibliography. 21 MS. SUZAN FRASER: Professor Edmond? 22 DR. GARY EDMOND: Yes, I -- I agree. A 23 lot of the cases that I've looked at where the issue is 24 that the reliability of the forensic scientific evidence 25 or expert evidence often, if it is admitted, and it often
1411 is admitted in my jurisdiction, there'll be very tenuous 2 references or references to articles that only have a 3 tenuous ref -- relevance to the kinds of things that are 4 being asserted. 5 So people will cite some -- some article, 6 and it may refer to the issue, but it won't actually 7 support necessarily what's being said. It might be cited 8 in a judgment nonetheless, and it'll be reproduced in 9 subsequent judgments as authoritative in that regard. 10 So I think there's a need, at times 11 actually, to look at the -- the basis or the actual 12 articles and what they are saying in relation to what 13 they are supporting. 14 MS. SUZAN FRASER: Right. 15 DR. KATHY GRUSPIER: I think it's very 16 important. I actually discussed this somewhat in my 17 paper that particularly with these grey types of cases, 18 shaken baby being one of them, you have two (2) types of 19 literature. You have anecdotal collections of cases that 20 are not evidence-based in any regard, yet they're drawing 21 numerous conclusion. 22 And then you have fewer, admittedly, 23 evidence-based sort of meta-data analysis type studies, 24 and I draw a distinction between anecdotal and scientific 25 studies, and I think it's important in some way to get
1421 out that. What is the expert basing their opinion on? 2 Are they largely subscribing to these collections of 3 anecdotal studies, or are they looking at objective 4 scientific publications and basing their -- their 5 opinions on that? 6 MS. SUZAN FRASER: And would you agree 7 that that comes at the report-writing stage rather than 8 when the expert is in the box? 9 DR. ERICA BEECHER-RANSON: I think, yeah. 10 I mean, this came up today again with this library set, 11 and I think that might be appropriate. Then you can 12 actually, you know, prior to even getting to the box, you 13 can pre-screen your experts and say, You know, this is 14 what they're relying on, and this is what they're relying 15 on and... 16 MS. SUZAN FRASER: Yes. 17 DR. KENT ROACH: I mean, I just would 18 like to agree with the library set as well. I mean, when 19 -- when we started trying to assemble a research program, 20 my research assistant just kind of disappeared into some 21 medical library somewhere, but it sure wasn't the law 22 library. And so I do think that it is very important to 23 provide both Crown and -- and defence with a -- with a 24 starting point, so that -- that's one point. 25 A second point is, I think that -- that
1431 your question does point to the danger that evidence- 2 based , in terms of engagement with the literature, if it 3 -- if it's done badly, will be a kind of adornment and 4 even a greater level of mystification. So, you know, you 5 not only will have the science and the person in the 6 white coat, but you will also have, you know, ten (10) 7 cites to articles that you don't even know what journal 8 they're from because you don't understand what the 9 abbreviation is, so -- 10 MS. SUZAN FRASER: Well, hopefully, they 11 can do better than that but -- 12 DR. KENT ROACH: Well, no, no, what -- 13 I'm -- I'm simply explaining the position that I found 14 myself in -- 15 MS. SUZAN FRASER: Oh, thank you then. 16 DR. KENT ROACH: -- this -- this summer. 17 So, but if it's done right, it seems to me that the 18 literature should reflect -- should often probably will 19 reflect a greater level of uncertainty that the 20 literature, if it is done right, will make forensic 21 pathology more like a prob -- probabilistic science than 22 like a kind of definitive, clinical opinion. 23 But I -- but I wouldn't want to ignore the 24 possible pitfalls with greater encouragement -- 25 MS. SUZAN FRASER: Right.
1441 DR. KENT ROACH: -- with -- 2 MS. SUZAN FRASER: Right. 3 DR. DAVID RANSON: I mean, since I 4 agree -- 5 MS. SUZAN FRASER: Right. 6 DR. DAVID RANSON: -- I mean I said yes 7 right at the beginning, and that was a -- that was a 8 great answer. And the real answer is yes, with many of 9 the points that I think Professor Roach has made. 10 I mean, there is -- also one (1) 11 additional thing is: Does the trier of fact have the 12 skills to actually dissect out the process of the 13 scientific evaluation that will be give -- will be 14 required if you throw in a bibliography of aids and key 15 papers in this area. 16 None of which by their definition are 17 going to have exactly the same methodologies, exactly the 18 same quality of data stream, and so on. And if you look 19 at -- and this is a piece of scientific philosophy, and I 20 -- I wrote this down at points of the discussions. 21 You have data which proceeds to 22 information, which proceeds to knowledge, which proceeds 23 to wisdom. We're sort of particular experts, 24 unfortunately up at that wisdom end. And what we don't 25 always do is in the transition between data information
1451 and information and knowledge, and knowledge wisdom, 2 analyse how they move from each of those steps. 3 And it's -- it's the movement from each of 4 those steps that actually defines the validity of the 5 overall knowledge base. We would hope that our experts 6 have applied the right skill-sets in -- in those three 7 (3) insertion points in the transition but, of course, 8 that requires quite a lot of skill. 9 DR. GARY EDMOND: I was just going to 10 say, an interesting counterpoint here is to say, some of 11 the civil litigation of the United States where, rather 12 than quite a perfunctory approach to the literature 13 supporting a case, there have been circumstances where 14 world leading medical journals have had their peer review 15 comments subpoenaed, and have been debated at length. 16 So why -- and so peer reviewers who were 17 blind before that have been brought into court to defend 18 their decisions in relation to why particular articles 19 were actually published, and the merits of the article. 20 So in other types of jurisdiction and 21 proceedings, where the resources are quite different, and 22 the motivations are probably similar, people are willing 23 to go to great lengths to argue about the kind -- the 24 decisions that were made in relation to publication. 25 MS. SUZAN FRASER: Thank you.
1461 COMMISSIONER STEPHEN GOUDGE: Thanks, Ms. 2 Fraser. 3 MR. MARK SANDLER: That completes the 4 questioning. I was starting to worry about lunch there 5 for a moment, but I just want to thank all of our 6 panellists. We will be seeing Professor Beecher-Monas 7 and Professor Edmond next week. 8 And of course Professor Roach's continuing 9 involvement of the Inquiry is well known, but I did want 10 to thank in particular as well, Professor Gruspier for -- 11 for joining us today, and Dr. Ranson, we prevailed upon 12 you for -- for an extended period of time in a number of 13 round tables, and -- and the written materials, and we're 14 very, very grateful for your assistance. 15 Thank you all. And that completes this 16 round table. 17 COMMISSIONER STEPHEN GOUDGE: Thanks, Mr. 18 Sandler. Let me on behalf of all of us, simply echo what 19 Mark said. We are very grateful to all of you. Two (2) 20 we will see again a week today. Professor Gruspier, 21 we're very grateful for both your paper and your 22 attendance. 23 Professor Roach continues his involvement, 24 and David, we can thank you enough, you and your 25 colleague Professor Cordner have been of great, great
1471 assistance to us, and we know how far you've come, so 2 have a safe trip home. 3 So we'll adjourn now until 9:30 on 4 Tuesday. 5 6 --- Upon adjourning at 12:42 p.m. 7 8 9 Certified Correct, 10 11 12 13 14 __________________ 15 Roland Lokey, Ms. 16 17 18 19 20 21 22 23 24 25