ARCTIC OBITER

16 | ARCTIC OBITER
Such an expert can do much damage without
effective oversight by those who must provide
it and constant vigilance on the part of the
participants in the criminal justice system who
can protect the system against flawed expert
evidence. None of that happened here. The
challenge is to ensure that this history does not
repeat itself.
From the perspective of fairness and ethics, Crown counsel
can no more ignore an expert’s transgressions on the witness
stand than she can a trial judge’s errors in a jury charge. If
defence counsel does not object, Crown counsel has a
responsibility to bring the problem to the court’s attention,
even if it makes a conviction less likely.
Also, forensic evidence is often more equivocal than it
seems. Comparisons between one sample and another often
produce only the weak conclusion that the two samples
‚could have‛ come from the same person. The danger is
that juries will use this as evidence that the two samples
‚did‛ come from the same person. This is what happened in
Guy Paul Morin’s first murder trial. Hair comparison
evidence provided a very weak inference but was probably
used by the jury [or relied upon by the Crown] to refute Mr.
Morin’s alibi.
This case illustrates how important it is for the Crown
prosecutor to satisfy herself about the strength of forensic
evidence before the trial, possibly in the form of a searching
cross-examination of the analyst. The Kaufman report on
the Morin wrongful conviction concluded: ‚Had the
limitations on [the hair evidence] been adequately
communicated..., Mr. Morin may not have been arrested
when he was - if, indeed, ever.‛
The report also concluded that Crown counsel had
overstated the strength of the fibre evidence in the closing
address. ‚[T]he Crown’s closing address, in some respects,
took the study farther than anything that the scientists had
said about it‛.
Novel fields of forensic science are most likely to cause
problems. The adversarial trial has difficulty assessing the
trustworthiness of such evidence. It is very important that
Crown counsel do not take an overly credulous view of such
evidence, or blind themselves to its shortcomings. The trial
process is vulnerable to self-appointed experts who peddle
their revolutionary ‚profiling‛ techniques from one court to
the next.
For example, take the murder trial of Dimitre Dimitrov.
Police investigating the scene had found abandoned boots
covered in blood. At trial, the Crown called a Sgt. Robert
Kennedy of the RCMP, who had become an expert in
‚barefoot morphology‛ and developed a technique of
footprint identification. At Dimitrov’s trial, Sgt. Kennedy
claimed that he could go further and identify the
wearer of a shoe by the unique pressure imprint
made on the inside of the sole.
The Court of Appeal overturned Dimitrov’s
conviction, distinguishing between the
footprints in mud, blood, or another substance,
and footprints on the inside of shoes. The
latter was ‚novel‛. That warranted a higher
level of scrutiny of the technique’s reliability.
Indeed, in his own testimony, Sgt. Kennedy
admitted that the science was at too early a