Canadian Lawyer

LEGAL REPORT/FORENSICS sions, including 12 that ended with con- victions, prompting a public inquiry led by Justice Stephen Goudge. Goudge's scathing report highlighted the shaken public confidence in foren- sic pathology and the justice system, but it has also marked a turning point for expert witness testimony, according to Frank Addario, a former president of the Criminal Lawyers' Association. "Since the Goudge inquiry into Dr. Smith's practices, everyone has tried to elevate their standards. You can see that in the way that Crown counsel approach cases and in the new skepticism that judges bring to forensic evidence. We need experts of course, but we also need to control their use so that we can evalu- ate whether they adhered to rigorous standards," he says. "The issue of bias will always plague forensic science. The only tried way to combat it is through transparency and rigour. forensic evidence collection and Getting beyond bias There are many ways expert witnesses' testimony can be influenced, the trick is in overcoming them. BY MICHAEL MCKIERNAN like speaking about out loud," says Paul Okrutny, an associate at forensic ser- vice firm Giffen Koerth Inc. "If you do hear people talking about it, it's to say of course they're not biased. But it's a E very culture has its taboos, and for expert witnesses the biggest of them all is the issue of bias. "It's some- thing people don't seem to big issue in the legal field, and I think maybe we don't talk about it enough." The issue was laid bare in the notori- ous case of Ontario pathologist Charles Smith, whose think-dirty approach to child pathology contributed to a string of wrongful convictions in the 1980s and 1990s. The Office of the Chief Coroner for Ontario identified 20 cases in which Smith had reached questionable conclu- recommendations, Ontario expert wit- nesses must now sign Form 53, which confirms their duty to the court above and beyond the party that Stemming from one of Goudge's " them. "Most good experts always worked under this regime anyway, the reminder always helps, says Peter Steger, a principal at Cohen Hamilton Steger, which specializes in business valuations, damages quantification, and forensic accounting. "When you're col- lecting evidence, you should always be thinking about what your mandate is. And that's to assist the court," says Steger. "The court wants to know that your investigation was fair and unbi- ased, and that you've looked at all pos- sible explanations for the wrongdoing, not that you're just promoting one side of the argument. That doesn't do any- body any good. retained " but gle to grasp the neutral nature of his role, but the more sophisticated ones Steger says clients sometimes strug- " www.CANADIAN Lawyermag.com N O VEMBER / D ECEMBER 2012 39 mick coulAs

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