Monday, December 1, 2008

Wolf in Sheep's Clothing - Advocates as Experts (by David G. Chow)

The genesis of the Inquiry into Pediatric Forensic Pathology in Ontario (the Goudge Inquiry) originated with the shocking discovery that renowned pathologist Dr. Charles Smith had drawn erroneous conclusions in several infant death cases resulting in wrongful convictions. As outlined in the Chief Coroner’s Review, there were significant issues in 20 of 45 cases in which Dr. Smith proffered an expert opinion, 12 of which resulted in findings of guilt[1]. Though Dr. Smith certainly planted a Judas Kiss on persons such as William Mullins-Johnson, the betrayal of Canada’s criminal justice system was deeper and farther reaching than his opinions alone. In the words of the Honourable Stephen T. Goudge, “[t]he tragic story of pediatric forensic pathology in Ontario from 1981 to 2001 is not just the story of Dr. Smith. It is equally the story of failed oversight”[2]. The Inquiry revealed that Chief Coroner Dr. James Young and Deputy Chief Coroner, Dr. James Cairns actively protected Dr. Smith[3]. Justice Goudge concluded, a kind of “symbiotic relationship” developed to the point where “[a]ny possibility of objective assessment [or meaningful peer review] was made …more difficult by the working relationship between the three men”[4].

From an Alberta perspective, the Ontario inquiry may seem like a series of remote incidents, attributed primarily to the shortcomings of a single person, in an isolated field of medical practice, quarantined in the province of Ontario. In reality, however, the Goudge Inquiry places the practice of forensic pathology and indeed the practice of accepting expert opinion evidence as a whole on red alert.

In legal parlance, expert opinion evidence is admissible to furnish the Court with scientific information which is likely outside the ken of a judge or jury[5]. The admission of expert opinion is subject to a critical assessment of the reliability of the evidence, its necessity in assisting the trier of fact, the absence of any other exclusionary rule and a properly qualified expert[6]. Assessing expert opinion evidence can be a daunting task. As Mr. Justice Sopinka recognized, “[t]here is a danger that expert evidence will be misused and will distort the fact-finding process. Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves”[7].

Before opinion evidence is receivable, the proposed expert must be qualified to supply evidence in the area(s) in which the party is seeking opinion. Given the impressiveness of the witness’s credentials, combined with the probable lack of understanding by the court in the field in which the expert seeks to be qualified, it may be difficult, if not impossible for judges to sniff-out the proverbial wolf in sheep’s clothing. The Goudge Inquiry highlights precisely this point. Dr. Charles Smith was qualified to give opinion evidence in the field of pediatric forensic pathology at least 45 times in his professional career. Though hindsight certainly revealed that he was not qualified to give this evidence, upwards of 45 judges qualified him as an expert in response to 45 requests by Crown Prosecutors[8]. This begs the question: is the law concerning qualifying experts sufficient to protect against the unqualified witness?

To protect the judicial process from the wolf in sheep’s clothing, the Court must assiduously exercise its gatekeeper function. This is no easy task; for the information must be assessed by untutored lawyers and lay judges, who themselves may be impressed by the witness’s credentials, but have little understanding of what it means to actually be qualified to give evidence in the area. To further complicate matters, judges are asked to inquire as to whether the information is outside the understanding of the ordinary person. This evaluation requires judges to plumb the depths of their own understanding and even where the information is beyond their appreciation, they must engage in a rather idiosyncratic inquiry as to whether the information offered by the expert is outside the ken of the ordinary person. In a sense, the law demands that ordinary people who may not understand assess the understanding of ordinary people.

Oftentimes disagreement concerning the admissibility of expert opinion evidence is resolved in favour of weight – that is, the evidentiary significance of admissible evidence is left to be decided by the trier of fact. Leaving such evidence to weight, however, does little to protect the plebeian ear from receiving information that may be shielded from effective cross-examination or critical judicial assessment precisely because the expert antecedents and evidence is outside the ken of ordinary understanding. And to contort the problem even further, parties in proceedings often seek to qualify experts who may, due to their various affiliations, have a stake in one opinion over another. Accordingly, even an eminently qualified witness may have to be excluded from giving evidence simply because of his or her investment in a particular theory or organization.

The debate is that of advocate versus expert. The advocate-expert debate is not really concerned with whether the witness is qualified per se or whether the witness can offer an opinion, it concerns the issue of whether the evidence is simply advocacy dressed up as expert opinion. As Justice Wright aptly stated in R. v. Montague, [2007] O.J. No. 1594 (Ont. S.C.J.): “[w]hile most experts tendered by the Court today are not truly independent there comes a point where the expert is recognized as being an advocate of a position to such an extent that his impartiality cannot be relied upon. The place of such a person is at counsel table, not the witness box”[9].

Disgraced pathologist Dr. Charles Smith gave evidence from the witness box when his place was at counsel table. When finally called to answer for his opinions, Dr. Smith admitted that he never received any formal instruction in giving expert evidence and that “…he believed his role was to act as an advocate for the Crown and to make a case look good”[10]. In terms of expert opinion, Dr. Smith’s evidence fits squarely within the dangerous kind warned by Mr. Justice Sopinka in R. v. Mohan. Dr. Smith’s evidence resulted in the conviction of persons such as William Mullins-Johnson. It was, however, little more than empty opinion dressed up in scientific language and delivered through a mouthpiece with impressive antecedents. Twenty-twenty hindsight means little compared to the 12 years that Mr. Mullins-Johnson lost while incarcerated in a Federal Penitentiary. In an interview with Macleans’s Magazine, Mr. Mullins-Johnson commented: “…convicts begin to think—that the only place they [can] function is in prison. I would not fall into these terminologies or these behaviours. I had to conform a bit, to survive…[b]ut I would not treat that place as a place where I belonged. I never belonged there”[11]. As much as Mr. Mullins-Johnson did not belong in gaol, Dr. Smith did not belong in the witness box.

Prosecutors use experts in a variety of fields; fingerprint identification, drug trafficking, accident reconstruction, toxicology, blood spatter, D.N.A. and forensic pathology, just to name a few. In many cases, experts are State agents who have devoted entire careers to government service and whose livelihood depends upon a government paycheque. The inherent danger in qualifying such persons comes not only from the possibility that they may be biased in favour of activities conducted during years of service to one master, but also from the possibility that the master continues to pull the strings. On this latter point, in 2008, the Federal Government “muzzled” its environment experts from speaking freely on issues of environmental concern. The directive was initiated to ensure that all experts communicate along “approved lines”[12]. As revealed in the Goudge Inquiry, when the Chief Coroner finally decided to conduct vigilant oversight of Dr. Smith’s cases, the aim was“…to protect the reputation of the office” not to remedy harm perpetrated against the public interest. Perhaps most interesting, in 2007, Cst. Joe Slemko, a world-recognized blood spatter expert with the Edmonton Police Service was publicly criticized by the department for acting for the defence in a number of cases. As reward for supplying expert evidence that actually led to the exoneration of one accused, Cst. Slemko was convicted by his employer of insubordination and informed that he would not receive his 20-year exemplary service medal. This was startling considering he had an untarnished career as a peace officer. According to the Edmonton Police Service “…officers are barred from any business activity that might reasonably be expected to impair their judgment, independence or unbiased performance of police duty”. The Department’s view was that Cst. Slemko was “free to testify as an independent consultant for the prosecution”, but could not speak to a defence lawyer without prior approval of the police service[13].

This position is disconcerting, to say the least; for other than supplying evidence that may undermine the State’s interest in convicting the accused, how does testifying for the defence impair the officer’s judgment, independence or unbiased performance? Why should he be restricted to only assisting the prosecution? Is it because his assistance to the defence may be prejudicial to the Prosecution’s theory of the case? In the words of Arthur Schafer, the director of the University of Manitoba’s Centre for Professional and Applied Ethics, “[w]hat strikes me about this situation is the dramatic misconception of the Edmonton Police Service about the role of the police and the Crown”[14]. As reports concerning Cst. Slemko leaked to the public, the Edmonton Police Service was compelled to respond. Was the response generated with approval along party lines? Citizens should remember that what happens behind closed doors may be far different than what is communicated to the public or in court.

True expert opinion is neutral. It is not invested in one side of the case or another; rather, its aim is to ensure impartial and unbiased opinion based upon a foundation of proven evidence. A true expert, such as Cst. Slemko, gives due consideration to other possibilities, even if it means discounting his or her own views.

In colloquial terms an advocate is somebody who supports or recommends a particular cause. It matters not whether the witness recommends a cause because it stalwartly and exclusively supports a particular position or recommends because it acts in the service of one master – advocacy is advocacy. Defence counsel, for example, is an advocate for the accused. To borrow a rather powerful quote, from an unknown author:

Our adversary system requires no less than that defense counsel become a "brother in arms" to the accused in this battle. Defense counsel must be prepared to stand a fight for his client against public outcry; he must stand and fight for his client throughout his trial; and he must stand and fight for his client at the time final judgment is entered. Such a system is not efficient. It is not designed for "swift justice". Indeed, some would say that it is not designed for "justice" at all. But if posterity judges a free society by how it treats its individual members, it should be of considerable consolation to us all that our system does not require an accused to stand alone[15].

By contrast, the Crown is an advocate for the public interest. Prosecutors are tasked with the difficult responsibility of assessing each case both in terms of reasonable likelihood of conviction and public interest. This duty is onerous; doubtless forcing individual Crowns to set aside their human inclination to win cases in favour of a deeper and more profound sense of the public good. In some cases, the Crown must advocate for the rights of the accused by choosing not to prosecute. Mr. Justice Rand astutely commented on the role of the Crown in Boucher v. The Queen[16]:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: It should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in a civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of dignity, the seriousness and the justness of judicial proceedings.

The State juggernaut consists of a multitude of players, including government officials, doctors, lawyers (such as prosecutors) and law enforcement officers. The most regular participants in criminal justice are police officers. Since police are responsible for investigating and laying charges on reasonable grounds, they are by implication, advocates for the prosecution. Police are tasked with the responsibility of investigating crime. Ideally, every investigation is as much about collecting evidence to support conviction as it is to exonerate the innocent. In a great many cases, however, collecting evidence is conducted in pursuit of a single-minded theory of the case, aimed at convicting a suspected wrongdoer. Countless criminal proceedings are run on the basis of incomplete investigation or improperly obtained evidence. It is not unusual that once some evidence supporting a theory is obtained, simple steps to confirm or strengthen the hypothesis are ignored. An experienced practitioner need only reflect on the myriad of cases where no photolineups were completed, fingerprints analyzed, D.N.A. collected or witnesses interviewed to appreciate this point. Arguably, police officers are trained to “think dirty” – that is, they approach every case with a “high index” of suspicion[17]. Indeed, investigators should approach cases in this way, but in so doing, they should also approach with a high motivation to ascertain the truth. Unfortunately, the search for truth is often abandoned to incomplete investigation, left to be reconciled by lawyers and judges in court.

In a great many cases, the Crown seeks to qualify police as experts to supply opinion evidence to support conviction. Police officers are most often experts of choice in areas such as fingerprint identification, accident reconstruction, blood spatter, organized crime, and drug trafficking. Given the role of police in criminal investigations, qualifying them as experts is nothing short of dangerous. Like any human being, police are susceptible to their own life experiences. When the experience is dedicated to the apprehension and collection of evidence to convict suspected wrongdoers, it is hard to imagine that a dyed-in-the-wool police officer would not, at the very least, have a reasonable apprehension of bias (if not actual bias) in favour of evidence supporting conviction. To illustrate, consider the following thought experiment:

Imagine an automobile driver who, unknowingly, wears spectacles of red glass. He would find it difficult to tell the difference between red, yellow or green traffic lights and he would be in constant danger of an accident. It is of no help to him that some or for that matter even most of the lights he perceives as red really happen to be red. The danger to him comes from the inability to differentiate and separate what his “red projection” imposes on him[18].

For police officers the red projection is reflected in a body of training and experience that is largely, if not exclusively law enforcement based. If they are equipped with spectacles in the form of years of training and experience by other members who have been similarly trained on the basis of similar experience, what assurances can the Court have that the evidence offered is truly neutral and not merely a police officer’s biased opinion in support of conviction?

Though we may be reluctant to accept that participants in our criminal justice system may be impossibly tainted by the roles they play within the system, coming to terms with this reality is important so that we can properly protect the integrity of the judicial process against infiltration by wolves in sheep’s clothing. Criminal justice is a human system, and as such, is susceptible at all levels to varying degrees of human frailty. And it is not just police; lawyers, witnesses and even judges are predisposed to their own nature. Even the best intentioned witness may not appreciate their own deficiencies. In the words of legendary American jurist, Benjamin N. Cardozo:

A brief experience on the bench was enough to reveal to me all sorts of cracks and crevices and loopholes in my own opinions when picked up a few months after delivery and reread with due contrition. The persuasion that one’s own infallibility is a myth leads by easy stages and with somewhat greater satisfaction to a refusal to ascribe infallibility to others[19].

A claim that one is unbiased does not make it so. Lessons from the Goudge Inquiry and other cases should not be viewed as unique incidents in history, to be shrugged-off as unfortunate, rare and isolated occurrences within the criminal justice system. Rather, these events should be viewed as reflections as the way things were, how they are, and if we fail to learn, how they will be. Again, in the words of Benjamin Cardozo, “…in illuminating the past, [history] illuminates the present, and in illuminating the present, illuminates the future”[20]. What is the future for expert opinion in criminal justice? At the very least, it should not be a future where advocates are permitted to infiltrate the flock as wolves in sheep’s clothing.

Submitted by:

David G. Chow
Fagan & Chow

[1] The Honourable Stephen T. Goudge, “Report in the Inquiry into Pediatric Forensic Pathology in Ontario”, 2008: pg. 7.
[2] Ibid., 20.
[3] Ibid., 32.
[4] Ibid., 33.
[5] See R. v. Abbey, [1982] 2 S.C.R. 24 (C.C.C.) and R. v. Mohan, [1994] S.C.J. No. 36 (S.C.C.)
[6] R. v. Mohan, [1994] S.C.J. No. 36 (S.C.C.)
[7] Mohan, pg. 9 at para. 19.
[8] Goudge Inquiry, pg. 13.
[9] Pg. 6 at para. 26.
[10] Ibid.
[14] Ibid.
[16] [1955] S.C.R. 16 at pp. 23-24 (also cited in Stinchcombe, supra at p. 5)
[17] See Goudge Inquiry, pg. 33.
[18] Whitmont, Edward C. “The Evolution of the Shadow”. Meeting the Shadow. Penguin Putnam Inc. New York, (1991): 14.
[19] Cardozo, Benjamin N. The Nature of the Judicial Process. Yale University Press. U.S.A., (1921): pg. 30.
[20] Ibid., 53.