Forensic Science Evidence and Expert Witness Testimony
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Forensic Science Evidence and Expert Witness Testimony

Reliability through Reform?

Edited by Paul Roberts and Michael Stockdale

Forensic science evidence plays a pivotal role in modern criminal proceedings. Yet such evidence poses intense practical and theoretical challenges. It can be unreliable or misleading and has been associated with miscarriages of justice. In this original and insightful book, a global team of prominent scholars and practitioners explore the contemporary challenges of forensic science evidence and expert witness testimony from a variety of theoretical, practical and jurisdictional perspectives. Chapters encompass the institutional organisation of forensic science, its procedural regulation, evaluation and reform, and brim with comparative insight.
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Chapter 10: A new Canadian paradigm? Judicial gatekeeping and the reliability of expert evidence

Emma Cunliffe

Abstract

Beginning with its decision in R v Mohan, the Supreme Court of Canada has actively redefined judicial responsibilities regarding expert evidence. This chapter adapts Thomas Kuhn’s concept of shifting paradigms to illustrate the emergence of a new Canadian approach to expert evidence. The chapter elucidates the test set out in the leading authority of White Burgess (and related cases) and illustrates how the relevant principles are being interpreted and applied by senior Canadian courts. Having documented the centrality of reliability and expert independence to the new Canadian paradigm, and against the backdrop of a growing emphasis on judicial gatekeeping responsibilities, it is argued that Canadian trial judges and lawyers presently receive too little institutional support for their respective new roles. Inadequate judicial engagement with the principles of fundamental reliability and a pattern of appellate reversal suggest that trial judges have not yet developed the skills necessary to adjudicate contests about the reliability of forensic science. Thus, the ‘new paradigm’ remains incompletely realised.

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