Procedural Fairness, the Criminal Trial and Forensic Science and Medicine

In early 2009 the National Research Council (NRC) of the US National Academy of Sciences published a report that was highly critical of many established areas of forensic science and the role of criminal courts in regulating them. In the same year, the Law Commission of England and Wales released a Consultation Paper, proposing that England and Wales should effectively embrace the approach to expertise associated with Daubert, guiding the US Federal Courts and many state courts (though criticised by the NRC). In 2011 the Law Commission formally recommended a reliability standard in a draft bill. In Australia, courts and reformers have done little in response to problems of reliability and the serious criticisms identified by the NRC have been muted. This essay aims to explain how notions of rectitude, practical authority, fair trial rights, and so called fundamental principles of evidence law (eg the presumption of innocence, the right to examine witnesses, the allocation of burdens and standards of proof, the premium placed on liberty and not convicting the innocent) can help us to reconsider legal approaches to the admission and use of expert evidence in adversarial criminal proceedings in response to emerging and institutionally unsettling empirical evidence.