FRONTIERS OF LAW IN CHINA -...

FRONTIERS OF LAW IN CHINA VOL. 13 MARCH 2018 NO. 1

DOI 10.3868/s050-007-018-0005-4

FOCUS COMPARATIVE PERSPECTIVES ON EVIDENCE LAW: EAST AND WEST

THE FORENSIC CHALLENGE

Paul Roberts*

Abstract This article investigates what might be characterised as “the forensic challenge” for criminal adjudication and clarifies its nature and scope. The “challenge” identified is complex, dynamic and multifaceted, encompassing a variety of issues and debates concerning the ways in which forensic science evidence is validated, generated, presented, tested, evaluated and utilised in criminal proceedings. Common law evidentiary principles governing the admissibility of scientific evidence and expert witness testimony are reviewed and the underlying assumptions and potential weaknesses of adversarial trial procedure are critically considered. The discussion is pitched at the generic level of recurring intellectual puzzles, institutional design, regulatory frameworks, procedural structures and processes, macro-policy choices and methodological prescriptions, with the intention of making it relevant to an international audience. Aspects of the procedural law and adjudicative practice of England and Wales, and the regulatory context of UK forensic science, are offered as concrete illustrations with the potential for illuminating comparative extrapolation to other legal systems. In conclusion, the article draws out specific implications for Chinese scholarship, law reform and policymaking in relation to scientific and other expert evidence, and advances a bold suggestion for entertaining an unconventionally expansive conception of “forensic science” and, correspondingly, of the challenges it presents.

Keywords forensic science, expert evidence, criminal procedure, comparative legal method, criminal justice reform

I. CONFRONTING FORENSIC COMPLEXITY ............................................................................. 44 II. COMPARATIVE DIAGNOSTICS ............................................................................................ 48

*

Paul Roberts, BCL, MA (Oxford), MPhil (Cambridge), UK; Professor of Criminal Jurisprudence, University of Nottingham, Nottingham NG7 2RD, UK; Adjunct Professor of Law, Collaborative Innovation Centre of Judicial Civilization, China University of Political Science and Law, Beijing 100088, China. Contact: [email protected]

I am grateful to two journal referees for helpful feedback, and to the organisers of the VIth International Conference on Evidence Law and Forensic Science (ICFIS), Baltimore, USA, Aug. 14–16, 2017, for inviting me to make the keynote presentation on which this article is based.

44 FRONTIERS OF LAW IN CHINA [Vol. 13: 43

III. REGULATING EXPERT EVIDENCE ..................................................................................... 56 IV. ADDRESSING THE CHALLENGE: METHODOLOGICAL PRESCRIPTIONS .............................. 61

I. CONFRONTING FORENSIC COMPLEXITY

Two forensic science-related stories appeared in the UK national media during the week I began writing this article. The first story concerned the publication of semi-official scientific “primers” to assist lawyers and courts to understand, interpret and apply certain kinds of evidence derived from commonly utilised forensic techniques.1 The first two primers in the series explain “forensic DNA analysis” and “forensic gait analysis,” with the next tranche planned to address statistics and the physics of vehicle collisions.2 The second national media story reported “[t]housands of criminal cases under review” owing to the possibility that “forensic lab results may have been manipulated.”3 This latest public scandal concerned drug tests undertaken by a private company instructed by the police, potentially affecting some 10,000 criminal cases, including homicides, sexual and violent offences. These two stories vividly evoke what we might characterise as “the forensic challenge” for legislators, policymakers and the routine administration of criminal justice. This challenge is complex and multifaceted. For one thing, the culturally resonant “CSI effect”4 entails that forensic science is always newsworthy and seldom out of the news. For another, forensic science has a Jekyll and Hyde popular persona. Sometimes the news about forensic science is good news, reporting breakthrough scientific progress or notable successes in investigations or prosecutions. But just as often

1 Pallab Ghosh, UK Judges to Get Scientific Guides, BBC News, Nov. 22, 2017, available at

http://www.bbc.co.uk/news/science-environment-42057009 (last visited Nov. 30, 2017); Courtroom Science Primers Launched Today, Royal Society Press Release, available at https://royalsociety.org/news/2017/11/ royal-society-launches-courtroom-science-primers (last visited Nov. 24, 2017). One of the project’s directors, Professor Sue Black, was interviewed on BBC Radio 4’s flagship Today programme on Nov. 22, 2017, available at http://www.bbc.co.uk/programmes/b09fj9jk (last visited Nov. 30, 2017). The primers, though strictly speaking unofficial guidance, are endorsed by the senior judiciary. Also see David Neuberger, Stop Needless Dispute of Science in the Courts, 531 Nature 9, 9 (2016).

2 The primers are available at https://royalsociety.org/about-us/programmes/science-and-law (last visited Nov. 30, 2017).

3 Hannah Devlin & Vikram Dodd, Thousands of Criminal Cases under Review, The Guardian, Nov. 22, 2017; Martin Evans, Forensics Lab Tests Tampering Probe Identifies 10,000 Criminal Cases that Might Have Been Affected, The Telegraph, Nov. 21, 2017; Lizzie Dearden, Convictions in Doubt as More than 10,000 Cases Could be Affected by Data Manipulation at Forensics Lab — Scandal has caused drug driving cases to be dropped and deaths referred to the Court of Appeal, The Independent, Nov. 21, 2017.

4 Christopher Lawless, Forensic Science: A Sociological Introduction, Routledge, at chapter 2 (2016); Andrew P. Thomas, The CSI Effect and its Real-Life Impact on Justice: A Study by the Maricopa County Attorney’s Office, 39 Prosecutor, 10 (2005); N. J. Schweitzer and Michael J. Saks, The CSI Effect: Popular Fiction about Forensic Science Affects the Public’s Expectations about Real Forensic Science, 47 Jurimetrics Journal, 357 (2007).

2018] THE FORENSIC CHALLENGE 45

the media report bad forensic news, feeding an alarming and depressing diet of errors, impropriety and miscarriages of justice.5

Of course, media reporting of forensic science is not an unobscured or undistorted window onto social processes and institutional realities. The media have their own organisational priorities and agendas, as do the press offices of criminal justice agencies and government departments.6 It has always been essential to adopt a critical attitude towards news reporting of crime and justice7 — even before there was so much political “spin,” “fake news” and “alternative facts” swirling around cyberspace and poisoning the well of public discourse. There are well-rehearsed methodological puzzles and shortcomings in the seductive “CSI Effect” narrative.8 But there are important truths as well. Scientific evidence is inherently persuasive because we live in an age of scientific rationalism and, in spite of our professed metropolitan sophistication, we are always prone to falling into a credulous scientism9 in which anything branded “scientific” commands near-automatic deference. Criminal justice is — and at least until the robots seize power, will continue to be — run by people, so that people’s perceptions matter in influencing how criminal investigations, prosecutions and trials are run. It would consequently be too hasty to dismiss the significance of media reporting of forensic science, as though it were merely frothy “infotainment” superfluous to the serious business of criminal justice administration. Lawyers, prosecutors and judges are not immune from wider popular conceits and misconceptions.10 Moreover, in those

5 Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Virginia Law Review, (2009); Clive Walker and Russell Stockdale, “Forensic Evidence,” in Clive Walker and Keir Starmer eds. Miscarriages of Justice: A Review of Justice in Error, Blackstone Press (London), (1999); Carol A. G. Jones, Expert Witnesses: Science, Medicine and the Practice of Law, Oxford University Press (Oxford), chapter 10 (1994).

6 See Richard V. Ericson, Mass Media, Crime, Law and Justice: An Institutional Approach, Vol. 31 British Journal of Criminology, 219 (1991); Philip Schlesinger and Howard Tumber, Reporting Crime: The Media Politics of Criminal Justice, Oxford University Press (Oxford), (1994); Richard V. Ericson, Patricia M. Baranek & Janet B. L. Chan, Visualizing Deviance: A Study of News Organization, University of Toronto Press (Toronto) (1987). An illuminating recent case-study is provided by Kath Murray, “Why Have we Funded this Research”?: On Politics, Research and Newsmaking Criminology, 17 Criminology & Criminal Justice, 507 (2017).

7 Robert Reiner, Media-made Criminality: The Representation of Crime in the Mass Media in Mike Maguire, Rod Morgan and Robert Reiner eds. The Oxford Handbook of Criminology (4th edition), Oxford University Press (Oxford), (2007); Kenneth Thompson, Moral Panics, Routledge (London), (1998).

8 Simon A. Cole & Rachel Dioso-Villa, Investigating the “CSI Effect” Effect: Media and Litigation Crisis in Criminal Law, 61 Stanford Law Review, 1335 (2009); Hon Donald E. Shelton, Juror Expectations for Scientific Evidence in Criminal Cases: Perceptions and Reality about the “CSI Effect” Myth, 27 Thomas M Cooley Law Review, 1 (2010); Tom R. Tyler, Viewing CSI and the Threshold of Guilt: Managing Truth and Justice in Reality and Fiction, 115 Yale Law Journal, 1050 (2006).

9 Susan Haack, Defending Science — Within Reason: Between Scientism and Cynicism, Prometheus Books (New York), (2003); Tom Sorell, Scientism: Philosophy and the Infatuation with Science, Routledge (London), (1994).

10 Edward J. Imwinkelried, Dealing with Supposed Jury Preconceptions about the Significance of the Lack of Evidence: The Difference Between the Perspective of the Policymaker and that of the Advocate, 27 Thomas M. Cooley Law Review, 37 (2010); Mark A Godsey & Marie Alao, She Blinded Me with Science: Wrongful Convictions and the “Reverse CSI Effect,” 17 Texas Wesleyan Law Review, 481 (2011).


jurisdictions in which lay fact-finding remains a linchpin of criminal adjudication, as it still does in many common law jurisdictions (including my own, England and Wales), common sense popular beliefs about forensic science feed directly into the verdicts of juries and magistrates. In the final analysis, forensic science plays a vital role in maintaining public confidence in the accuracy and credibility of criminal convictions, and — at least in democratic polities — such public confidence is an essential ingredient of the normative legitimacy of criminal adjudication.

These unexceptional observations on the contemporary condition of criminal justice administration do no more than scratch the surface of perhaps the most underappreciated characteristic of the “forensic challenge,” which this article highlights, namely its complexity. One way of beginning to articulate this complexity is to say that forensic science combines all the problems/opportunities of science with all the problems/opportunities of criminal justice, and then intensifies the mixture with all the problems/opportunities of blending the two together successfully. But this is still a massive oversimplification, because the real forensic challenge lies not in mixing together only two ingredients, as though baking a Science and Law cake, but of engineering bewilderingly many components and simultaneously moving parts into smoothly functioning machinery that won’t stall, grind its gears or cause lethal accidents.

“Forensic science” is hardly one entity. It is an umbrella term for a loose collection of disciplinary knowledge and techniques that all share the characteristic of having legal technological applications, but are otherwise diverse in methodology, maturity, epistemic status, professional organisation, institutional location, and probative function. This diversity becomes all the greater if we extend the “forensic” label to apply to expertise that is not “scientific,” or only partly or contestably so (medicine, psychiatry, psychology, etc.). Yet there is a universality and terrestrial solidity and stability to forensic science that criminal justice lacks. The detailed law and practice of criminal proceedings vary considerably by territorial jurisdiction, introducing an entirely new order of diversity and, specifically, jurisprudential complexity. Even if scientific knowledge and principles are constant around the globe, their forensic applications may not be. Indeed, there is nothing remarkable, or inherently suspect, about different uses being made of the same scientific information by different legal systems, because the evidential value of forensic science is always a function of local institutional structures, professional cultures and procedural traditions,11 as much as a distillation of strictly scientific criteria. For example, in jurisdictions employing trial by jury even the very best scientific knowledge is forensically useless, practically speaking, unless it can be presented in a way that is comprehensible to lay fact finders and enables them to assess its probative value reliably. Again, whether forensic science should be an exclusively state-run undertaking or

11 See H. Patrick Glenn, Legal Traditions of the World (5th edition), Oxford University Press (Oxford), (2014); Mirjan R. Damaška, The Faces of Justice and State Authority, Yale University Press (New Haven), (1986); Stewart Field, Fair Trials and Procedural Traditions in Europe, 29 Oxford Journal of Legal Studies, 365 (2009); Paul Roberts, Comparative Criminal Justice Goes Global, 28 Oxford Journal of Legal Studies, 369 (2008).


encompass market-based private provision, or the extent to which forensic science services must be made available to defence lawyers, can only be determined — along with a thousand other points of legal, administrative and regulatory detail — on a jurisdiction-by-jurisdiction basis and in accordance with contingent local conditions.

An important lesson here concerns the indispensability of a holistic, end-to-end perspective on the role of forensic science in the administration of criminal justice. Trials grab headlines and a great deal of scholarly attention, and are all the more dramatic when they feature courtroom “battles of experts.” However, forensic science also exerts major influence on the course of criminal investigations, prosecutorial decision-making, and defence lawyers’ advice to their clients on plea. A skewed focus on the role of expert evidence at trial would consequently miss most of the forensic action in criminal proceedings, especially in jurisdictions like mine in which the overwhelming majority of prosecuted cases is resolved by plea or dismissal and without a contested trial.12 Likewise, although designing procedural rules to regulate the admissibility and evaluation of scientific evidence at trial is undeniably an important legislative task, procedural architecture will be reduced to building fantasy castles in the air unless criminal justice professionals can reliably access high quality forensic science assistance in practice. Excluding bad forensic science at trial is a late remedy for curing symptoms, where prophylaxis — guaranteeing the dependability of forensic science and expert witness testimony through training, accreditation, validation, regulatory oversight and fostering professional cultures — would be far more effective medicine.

This article further explores “the forensic challenge” and clarifies its nature and scope. The discussion is pitched at a fairly generic level, emphasising recurrent intellectual puzzles, institutional architecture, regulatory frameworks, procedural structures and processes, macro-policy choices and methodological prescriptions, with the intention of making it relevant to an international audience rather than being narrowly preoccupied with any particular country or legal jurisdiction. Aspects of the law and practice of England and Wales, and the regulatory context of the UK more broadly, are offered as concrete illustrations with the potential for illuminating comparative extrapolation to other legal systems. The concluding section of the article draws out specific implications for Chinese scholarship, law reform and policymaking in relation to scientific and other expert evidence, and advances a bold suggestion for embracing a somewhat novel, unconventionally expansive, conception of “forensic science.”

12 The legal status, prevalence, consequences and implications of “plea bargaining” are controversial in

England and Wales: see e.g., Nick Vamos, Please Don’t Call it “Plea Bargaining,” Criminal Law Review, 617 (2009); Mike McConville & Luke Marsh, Criminal Judges: Legitimacy, Courts, and State-Induced Guilty Pleas in Britain, Edward Elgar Press (Cheltenham), (2014); John Baldwin & Michael McConville, Negotiated Justice, Martin Robertson Press (London), (1977).


II. COMPARATIVE DIAGNOSTICS

It is wise to investigate and assess a supposed problem before trying to fix it. The history of criminal justice reform is littered with disappointed expectations, unforeseen consequences and perverse side-effects, so that the administered “cure” too often turns out to be worse than the disease. “First do no harm!” ought to be the legislator’s, as much as the physician’s, guiding principle. Happily, there are substantial critical resources on which we can draw to expedite an informed diagnosis. Forensic science and expert witness testimony have accumulated an enormous and constantly expanding interdisciplinary literature.13 The following “top twenty” issues, problems and criticisms (listed in roughly logical sequence, rather than rank ordering of prevalence or significance) recur in these debates:

1. Junk science:14 A forensic science technique or disciplinary specialism is invalid, in the straightforward sense that it does not “work”: tests do not measure what they purport to measure, and results do not show what they purport to show;

2. Unvalidated procedures and/or fallacious interpretative frameworks: Forensic science techniques lack adequate validation or logical (including probabilistic 15 ) interpretative frameworks, compromising the reliability of analytical findings and/or the inferential conclusions supposedly based on them;16

3. Deficient evidence management: Forensic laboratories and practitioners lack adequate protocols and procedures to collect, preserve and process physical samples free from contamination or problematic degradation, or otherwise compromising the chain of custody;

4. Failures of applied scientific methodology: Particular tests or scientific opinions fail to meet “scientific” standards of objectivity, independence and impartiality, with

13 For accessible entry points, see Paul Roberts eds. Expert Evidence and Scientific Proof in Criminal

Trials, Ashgate Publishing (Farnham), (2014); Jim Fraser & Robin Williams eds. Handbook of Forensic Science, Willan (Cullompton), (2009); Jim Fraser, Forensic Science: A Very Short Introduction, Oxford University Press (Oxford), (2010); Susan Haack, Evidence Matters: Science, Proof, and Truth in the Law, Cambridge University Press (Cambridge), (2014).

14 This provocative phrase is owed to Peter W. Huber, Galileo’s Revenge: Junk Science in the Courtroom, Basic Books (New York), (1991). Also see Paul C. Giannelli, “Junk Science”: The Criminal Cases, 84 Journal of Criminal Law and Criminology, 105 (1993); David E. Bernstein, Junk Science in the United States and the Commonwealth, 21 Yale Journal of International Law, 123 (1996).

15 Ian Evett, The Logical Foundations of Forensic Science: Towards Reliable Knowledge, 370 Philosophical Transactions B Article 20140263; Graham Jackson, Colin Aitken & Paul Roberts, Case Assessment and Interpretation of Expert Evidence, Practitioner Guide No. 4 (Royal Statistical Society), (2014), available at http://www.rss.org.uk/statsandlaw (last visited Nov. 30, 2017).

16 Cf. Ian W. Evett et al., Expressing Evaluative Opinions: A Position Statement, 51 Science & Justice, 1 (2011); Michael J. Saks, Forensic Identification: From a Faith-based “Science” to a Scientific Science, 201 Forensic Science International, 14 (2010); Michael J. Saks & Jonathan J. Koehler, The Coming Paradigm Shift in Forensic Identification Science, 309 Science, 892 (2005).


particular susceptibility to (unconscious) “cognitive bias”;17 5. Human fallibility: Forensic scientists and expert witnesses make idiosyncratic

mistakes (including mistaken data input); 6. Charlatanism: Experts are corrupt or incompetent fakers; 7. Testimonial overreaching: Genuine experts stray beyond the bounds of their

legitimate expertise in providing forensic opinions; 8. Structural process distortions: Sound science is corrupted by investigative

practices and/or adversarial criminal procedure; 9. Lawyer mishandling: Lawyers and courts do not understand science properly, and

consequently mishandle scientific evidence and/or abuse it for their own strategic ends; 10. Communication failures: Experts are incapable or unwilling to express

themselves (orally or in writing) in a manner comprehensible to non-specialists; 11. Lax (“liberal”) admissibility standards: Courts too readily admit questionable

scientific evidence at trial, thus exposing fact finders to exaggerated risks of adjudicative error;

12. Excessively demanding (“conservative”) admissibility standards: Courts too readily exclude novel or unconventional expert opinions, thus depriving fact finders of information relevant to their decision-making;

13. Testimonial silencing: Trial procedures for eliciting oral testimony prevent expert witnesses from communicating their evidence in their own language and on their own terms;

14. Adversarial deficit: There is inadequate scientific support for the defence throughout the pre-trial and/or trial process;

15. Manufactured disagreement: Adversarial trial procedures accentuate minor discrepancies between expert opinions, whilst obscuring substantial agreement;

16. Institutionally incompetent to resolve genuine disagreement: Criminal trials are incompetent fora for attempting to resolve genuine scientific disagreements;

17. Excessive jury deference: Juries do not understand scientific evidence, and too easily defer to expert testimony;

18. Excessive jury scepticism: Juries do not understand scientific evidence, and consequently fail to credit expert testimony with the probative value it truly merits;

19. Number-blindness:18 In particular, laypeople do not understand the probabilistic

17 Forensic Science Regulator, Guidance: Cognitive Bias Effects Relevant to Forensic Science

Examinations, FSR–G–217 (Oct. 30, 2015), available at http://www.gov.uk/government/publications/ cognitive-bias-effects-relevant-to-forensic-science-examinations (last visited Nov. 30, 2017); D. Michael Risinger, Michael J. Saks, William C Thompson & Robert Rosenthal, The Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectation and Suggestion, 90 California Law Review, 1 (2002).


or statistical basis of scientific evidence, producing localised versions of [17] and/or [18]; 20. Two antithetical cultures: Law and Science are methodologically incompatible,

dooming forensic science — as the misbegotten child of a “marriage of opposites” — to cope with a fundamentally conflicted personality.19

Evidently, this charge-sheet is an extraordinarily mixed bag. Some items overlap and their boundaries could easily be redrawn. Besides, in practice analytically discrete features are often interactive and potentially mutually aggravating or, alternatively, diametric tendencies might cancel each other out. Whilst some of the standard criticisms are more incisive or worrisome than others, they are all rooted in practical experiences of impropriety, mishaps and miscarriages of justice, and many are reinforced by the collective wisdom of wide-ranging official reviews and authoritative inquiries, notably including the NRC and PCAST reports from the USA.20 Of course, to err is only human, but that does not disqualify criticism [5] as fatuous. The ineradicable risk of human error points up the need for institutionally robust systems of triangulation, peer review, quality audit and effective management of human risk factors. That several of these criticisms are mutually contradictory — [11] and [12]; [17] and [18] — is an early clue to the scale and recalcitrance of the regulatory challenges posed by forensic science for the administration of criminal justice. It is highly unlikely that a single regulatory solution would be capable of addressing all, or even most, of these diverse and somewhat antagonistic concerns. Solutions to certain problems might simultaneously create or exacerbate other risks or shortcomings elsewhere in the system. Touted miracle cures are liable to be quack remedies or bad medicine.

For anybody already familiar with this literature, there is a strong flavour of eternal recurrence, with criticisms and reform debates seemingly stuck in the same old grooves. Nearly all of the “top 20” were prominent in research conducted for the Runciman Royal Commission 25 years ago.21 Mutual misunderstanding, failures of communication and

18 Leila Schneps & Coralie Colmez, Math on Trial: How Numbers Get Used and Abused in the Courtroom, Basic Books (New York), (2013); Peter Hawkins & Anne Hawkins, Lawyers’ Probability Misconceptions and the Implications for Legal Education, 18 Legal Studies, 316 (1998).

19 Anita A. K. Wonder, Science and Law, a Marriage of Opposites, 29 Journal of the Forensic Science Society, 75 (1989); Susan Haack, Irreconcilable Differences? The Troubled Marriage of Science and Law, 72 Law and Contemporary Problems, 1 (2009); Stan Brown & Sheila Willis, Complexity in Forensic Science, 1 Forensic Science Policy and Management, 196 (2009) (referring to a “clash of two civilizations”).

20 National Research Council, Strengthening Forensic Science in the United States: A Path Forward, National Academies Press (Washington, DC), (2009); President’ Council of Advisors on Science and Technology (PCAST), Report to the President: Forensic Science in Criminal Courts — Ensuring Scientific Validity of Feature — Comparison Methods (Executive Office of the President, 2016), available at https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/PCAST/pcast_forensic_science_report_final.pdf (last visited Nov. 30, 2017).

21 Paul Roberts & Chris Willmore, The Role of Forensic Science Evidence in Criminal Proceedings, RCCJ Research Study No. 11, Her Majesty’s Stationery Office (London), (1993); Paul Roberts, Science in the Criminal Process, 14 Oxford Journal of Legal Studies, 469 (1994); Paul Roberts, Forensic Science Evidence after Runciman, Criminal Law Review, 780 (1994).


the (alleged) irrationalities of adversarial criminal procedure are constant refrains. The problem with conventional diagnoses, in my opinion, is not that they lack plausibility, but rather that the underlying analysis too often peddles superficial stereotypes and misperceptions, producing predictably flawed prescriptions for institutional reform.

Forensic science is fundamentally an applied branch of scientific endeavour. Conventionally defined as “science applied to the administration of justice,”22 forensic science serves the interests of justice — as specified by positive (domestic) law and underpinned by normative political morality.23 Although forensic science is properly characterised for many practical purposes as a genuine partnership between scientists on the one hand and criminal investigators, lawyers and courts on the other, in terms of the structural logic of criminal adjudication science is properly subservient to legally-defined objectives and ideals. This is why criticism [20], which superficially appears to expose a profound and enduring source of cultural estrangement distancing Science from Law, is not nearly as insightful as it seems.24 Granted that there are marked differences in the manner in which lawyers and scientists conduct their daily business and in their respective cultures and professional ideals, forensic science is — fundamentally and existentially — in the law business;25 and it cannot succeed, according to its own lights, unless scientific knowledge can be adapted to legal and broader justice requirements.26

Law is inherently jurisdiction-specific, in a way that forensic science qua science is not. The value and quality of forensic science are always contextually variable, in the sense that what may constitute good evidence for justice in some places or cases, would be useless or unacceptable in others. This pervasive sensitivity to institutional context threatens to turn any normative generalisation about forensic science or other expert evidence into indefensible dogma. Expert evidence of all kinds, even the testimony of an expert astrologer or magician, 27 could conceivably be relevant and epistemically well-warranted in criminal proceedings, depending on the questions it addresses and the specific uses to which it is put. This highlights an important matter of conceptual taxonomy which influences legal reasoning. Evidentiary regulation in common law systems is generally calibrated to an undifferentiated concept of “expert evidence.”

22 JUSTICE (Chair HHJ Christopher Oddie), Science and the Administration of Justice, JUSTICE

(London), (1991); J. B. Firth, Aspects of Forensic Science, Criminal Law Review, 107 (1954). 23 For elucidation, see Paul Roberts eds. Theoretical Foundations of Criminal Trial Procedure, Ashgate

(Farnham), (2014). 24 Paul Roberts, Renegotiating Forensic Cultures: Between Law, Science and Criminal Justice, 44

Studies in the History and Philosophy of Biological and Biomedical Sciences, 47 (2013). 25 Etymology is instructive: “forensic” originally meant “legal.” 26 See further, Paul Roberts, Making Forensic Science Fit for Justice, 49 Australian Journal of Forensic

Sciences, 502 (2017); Paul Roberts, Forensic Science and Criminal Justice, in Anthea Hucklesby and Azrini Wahidin eds. Criminal Justice (2nd edition), Oxford University Press (Oxford), (2013).

27 In Moore v Medley, The Times, Feb. 3, 1955, the Court ruled that membership of the Inner Circle of Magic qualified a witness as “a highly expert magician.”


English law, for example, does not formally recognize a discrete subdivision of “forensic science evidence” and legal rules do not address this category directly.

Confronted with pronounced disciplinary diversity in forensic science and other expertise, it is tempting to think that particularised forms of expert evidence should ideally be governed by their own contextually adapted bespoke schemes of legal regulation. But this can only work if it is possible to specify operationally robust distinctions between different kinds of expert evidence, dividing up the territory into clusters of methodologically-related specalisms. The most plausible generic division is between “scientific” and “non-scientific” expertise. However, US experience indicates that the science/non-science divide offers neither greater clarity nor less scope for controversy than the common law’s orthodox expert/non-expert dichotomy. 28 The operative concept in English law remains “expert,” rather than “science” or anything claiming similar methodological stringency. This approach endows the legal rules with maximum coverage and inclusivity: the substantive field and content of expert evidence could be just about anything,29 provided that it relates to a disputed question of fact at issue in the proceedings. If English criminal litigation is too conservative in its reception of novel or unorthodox science (criticism [12] in the “top 20”), it is not because the formal rules of admissibility are too restrictive in defining “experts.” A generic approach does, however, entail that the rules are written at a fairly high level of abstraction, often requiring significant interpretational effort to apply them contextually to the instant case.

On first principles,30 expert testimony adduced in criminal trials must be both (i) relevant to a live fact in issue (i.e., “material” to the proceedings); and (ii) not otherwise excluded by an applicable generic31 or expertise-specific exclusionary rule. “Logic and common sense” are the overriding criteria of relevance in English law.32 More than a mere jurisprudential contrivance, this is a foundational precept of rationality in

28 D. Michael Risinger, The Irrelevance, and Central Relevance, of the Boundary Between Science and

Non-Science in the Evaluation of Expert Witness Reliability, 52 Villanova Law Review, 679 (2007). 29 See e.g., R. v Luttrell [2004] 2 Cr App R 31, CA (expert lip-reader); R. v Chatwood [1980] 1 WLR 874,

CA (drug abusers qualified to identify heroin); R. v Hodges [2003] 2 Cr App R 247, CA (police expert on street price of drugs); R. v Faraz [2013] 1 WLR 2615, [2012] EWCA Crim 2820 (experts on Islam and terrorism); David John Cadwell Irving v Penguin Books Ltd, Deborah E Lipstadt, QBD Transcript (Gray J), 11 April 2000 (WL 362478) (historians expert on WWII and the Holocaust).

30 For fuller treatments, see Paul Roberts & Adrian Zuckerman, Criminal Evidence (2nd edition), Oxford University Press (Oxford), (2010); Paul Roberts, The Science of Proof: Forensic Science Evidence in English Criminal Trials, in Jim Fraser and Robin Williams eds. Handbook of Forensic Science, Willan (Cullompton), (2009).

31 Such as English law’s general rules excluding improperly obtained evidence, hearsay, extraneous bad character etc. (all of which have fuzzy boundaries and/or multiple inclusionary exceptions and provisos). For systematic exposition and critical commentary, see Paul Roberts & Adrian Zuckerman, Criminal Evidence (2nd edition), Oxford University Press (Oxford), (2010).

32 R. v A. [2002] 1 AC 45, [2001] UKHL 25, [31] (Lord Steyn); DPP v Kilbourne [1973] AC 729, 756, HL (Lord Simon).


adjudication.33 According to orthodox common law theory, expert evidence is admissible by way of exception to “the opinion evidence rule.” However, this is an unhelpful and potentially misleading formalistic canard. It presupposes a clear distinction between “facts” and “opinions,” where in reality there is a continuum defined by different levels of granularity in the description of factual inferences from observational data and perceptions.34 Like all other evidence, some expert witness testimony — e.g., chemical analysis of suspected narcotics — lies towards the brute “factual” pole of the continuum, whilst other testimony — e.g., a medical diagnosis35 or assessment of the possibility and persistence of secondary transfer of physical traces 36 — lies more towards the “opinionated” pole. One might expect genuine experts to agree about scientific fact, whereas genuine differences of opinion are commonplace amongst specialists. But one might just as well say that scientific facts are just those matters about which genuine experts agree, whereas opinions allow for good faith disagreements between experts. The fact/opinion dichotomy is no more foundational or conceptually robust in this context than the expert/non-expert distinction.37 There is, in other words, no independent criterion to arbitrate the institutionally-constructed borderline differentiating facts from opinions.

Positive law defines the material “issues” for criminal litigation in two distinct and cumulative ways. First, substantive criminal law specifies the elements of criminal offences that must be proved to secure a conviction, alongside general doctrines of liability, excuse and justification. The boundaries of substantive criminal liability differ in many significant details from one legal jurisdiction to another.38 Secondly, the matters in issue in particular criminal trials are further refined through situational combinations of criminal procedure law (including evidentiary rules of admissibility and exclusion), local practice and particular litigants’ forensic strategies. These contingent aspects of procedure and practice tend to be significantly more diverse and influenced by local legal traditions than the scope and content of substantive criminal law.39 My list of “top 20” criticisms is

33 William Twining, The Rationalist Tradition of Evidence Scholarship, in Enid Campbell and Louis Waller eds. Well and Truly Tried, Law Book Company (Sydney), (1982); Mirjan Damaška, Rational and Irrational Proof Revisited, 5 Cardozo Journal of International and Comparative Law, 25 (1997).

34 Cf. Richard K. Greenstein, Determining Facts: The Myth of Direct Evidence, 45 Houston Law Review, 1801 (2009).

35 R. v Henderson [2010] 2 Cr App R 24, [2010] EWCA Crim 1269. 36 R. v Reed and Reed; R. v Garmson [2010] 1 Cr App R 23; [2009] EWCA Crim 2698.

37 Recalling Wittgenstein’s remark that, “[I]f a blind man were to ask me ‘Have you got two hands?’ I should not make sure by looking. If I were to have any doubt of it, then I don’t know why I should trust my eyes. For why shouldn’t I test my eyes by looking to find out whether I see my two hands? What is to be tested by what? (Who decides what stands fast?),” Ludwig Wittgenstein, On Certainty (G. E. M. Anscombe and G. H. von Wright eds.), Basil Blackwell (Oxford), (1979).

38 On general principles of English criminal law, see AP Simester et al., Simester and Sullivan’s Criminal Law: Theory and Doctrine (6th edition), Hart Publishing (Oxford), (2016); Jeremy Horder, Ashworth’s Principles of Criminal Law (8th edition), Oxford University Press (Oxford), (2016); David Ormerod & Karl Laird, Smith and Hogan’s Criminal Law (14th edition), Oxford University Press (Oxford), (2015).

39 Differences in substantive criminal law become more evident if we extend our comparative analysis beyond western-style liberal democracies to include, e.g., state socialism or theocratic government.


recognisably Anglophone, in explicitly referring to (and otherwise implicitly assuming) “adversarial” trial procedure. The theory of adversarialism presupposes that the prosecution’s case, including any expert evidence on which the prosecution proposes to reply, will be open to scrutiny and vigorous cross-examination by the defence, lending piquancy to criticism [14] regarding “adversarial deficit.” Defence lawyers will not, in general, be able to conduct an informed evaluation of the strengths and weaknesses of scientific evidence adduced by the prosecution unless they can instruct their own well-qualified scientific advisors. Less adversarial (or “inquisitorial” 40 ) systems of criminal adjudication prefer to dispense with courtroom challenges to scientific evidence, characteristically relying on the uncontradicted evidence and advice of court-appointed experts. 41 This manner of proceeding pre-empts some well-known difficulties — including the risks of adversarial distortion motivating criticisms [15] and [16] — but tends to create or exacerbate mirror-image problems. Local commentators worry that inquisitorially-minded judges too readily defer to the orthodox opinions of well-credentialed experts, which consequently escape rigorous testing, potentially risking miscarriages of justice.42 Rival procedural models present a suite of reform options, but no magic bullets or panaceas.

Contrasts between “adversarial” and “inquisitorial” procedural models represent only one vector of comparative analysis. There are major differences in criminal procedure within the “adversarial” and “inquisitorial” procedural families.43 Indeed, it is common for civil (private law) and criminal adjudication to be conducted very differently within the same territorial jurisdiction. Expert evidence deemed adequate for one juridical purpose (e.g., family proceedings) may be inadmissible in a criminal trial, owing, for example, to more exacting fair trial and due process requirements and the higher standard of proof in criminal proceedings. Prosaic institutional realities must not be overlooked in comparative modelling. We need to be concerned not merely with the formalistic “law in the books,” but also with the sociological realities of “the law in action.” Criticism [14], for example, is as much concerned with the availability of competent experts willing to take on defence work and the provision of state-funded legal aid to pay for them, as it is

40 This is a convenient analytical concept, but its relationship to real-life legal systems is problematic and its implications are often misunderstood, especially by Anglophones. See further, Paul Roberts, Faces of Justice Adrift? Damaška’s Comparative Method and the Future of Common Law Evidence, in John Jackson, Maximo Langer and Peter Tillers eds. Crime, Procedure and Evidence in A Comparative and International Context, Hart Publishing (Oxford), (2008).

41 J. R. Spencer, Court Experts and Expert Witnesses: Have We a Lesson to Learn from the French?, 45 Current Legal Problems, 213 (1992).

42 See e.g., Joëlle Vuille, Admissibility and Appraisal of Scientific Evidence in Continental European Criminal Justice Systems: Past, Present and Future, 45 Australian Journal of Forensic Sciences, 389 (2013); Chrisje Brants, Wrongful Convictions and Inquisitorial Process: The Case of the Netherlands, 80 University of Cincinnati Law Review, 1069 (2012); Bron McKillop, Forensic Science in Inquisitorial Systems of Criminal Justice, 7 Current Issues in Criminal Justice, 36 (1995).

43 See Paul Roberts & Jill Hunter eds. Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions, Hart Publishing (Oxford), (2012) (advocating “common law comparativism”).


with overarching models of criminal procedure. Provision of legally aided defence expertise in the USA has always looked threadbare from a British perspective;44 though there is no room for self-satisfied complacency in this regard and it must be said that publicly funded defence forensics in English criminal proceedings have lately experienced the shock of austerity.45 Anticipating further cuts to the legal aid budget, criminal barristers and solicitors have staged unprecedented courtroom walkouts and days of action.46 Our proud tradition of criminal justice will inevitably become impoverished if we are not, as a society and as a political culture, prepared to pay what it costs. Criminal adjudication is not a “public service” in the same way as road maintenance, or public libraries, or street lighting, or tertiary education, or even our beloved National Health Service, whereby the government in extremis might say: “I’m sorry, you can’t have any more, the money has run out.” Normative constraints of justice, as well as English common law and European human rights law, preclude us from saying to the accused: “Since we cannot afford to give you a fair trial, we are giving you an unfair one, instead.”

Traditional theories of legal jurisdiction are starting to creak under the weight of globalization and cosmopolitan jurisprudence. Today, law characteristically travels, crosses borders, engages in transnational conversations; and as law impacts on the places it visits, so in its turn law is affected by, and adapts in response to, its cosmopolitan institutional and cross-cultural adventures.47 Law reformers, no less than practitioners, must engage with dynamic legal environments, in which the power of states to legislate

44 Cf. Paul C. Giannelli, Ake v Oklahoma, The Right to Expert Assistance in a Post-Daubert, Post-DNA World, 89 Cornell Law Review, 1305 (2004).

45 Most recently, see Forensic Science Regulator, Annual Report: November 2016–November 2017 (FSR, 19 January 2018) 2, 9 (warning that “[c]ontinuing downward pressure on cost… has eroded the time available for professional development and even the availability of scientific literature… Legal Aid Agency (LAA) rates continue to present a barrier to the adoption of standards by defence practitioners, a situation exacerbated by the tardiness of payments to individual experts by a proportion of instructing solicitors. The LAA fees for forensic science work have fallen to between 38% and 73% of their pre-October 2011 levels, depending on discipline…”).

46 Owen Bowcott, Criminal Solicitors to Walk Out for Third Time over Legal Aid Cuts, The Guardian, Mar. 21, 2014; Owen Bowcott & Nicola Brown, More than 1,000 Lawyers Protest Outside Parliament at Legal Aid Cuts: Former Tory MP Sir Ivan Lawrence QC tells Protesters He is Ashamed of Government for “Destroying Criminal Justice System,” The Guardian, Mar. 8, 2014 (quoting Nigel Lithman QC, chairman of the (barristers’) Criminal Bar Association, as saying: “If these cuts are not addressed then the British justice system, which is held in such high esteem around the world, will cease to exist as we know it and the British public can no longer expect true justice to be delivered”).

47 For accessible entry points into the burgeoning and disparate literature, see Roger Cotterrell, What is Transnational Law?, 37 Law & Social Inquiry, 500 (2012); William Twining, Globalisation and Legal Theory, Butterworths (London), (2000); Valsamis Mitsilegas, Peter Alldridge & Leonidas Cheliotis eds. Globalisation, Criminal Law and Criminal Justice: Theoretical, Comparative and Transnational Perspectives, Hart Publishing (Oxford), (2015); Paul Roberts, Comparative Criminal Justice Goes Global, 28 Oxford Journal of Legal Studies, 369 (2008); David Nelken eds. Comparative Criminal Justice and Globalisation, Ashgate (Farnham), (2011).


and regulate has been curtailed by global political, economic and social forces. Forensic science, for example, is now subject to aspects of pan-European regulation and cross-border cooperation.48 Without wishing to downplay the juridical and practical significance of these developments, however, modern criminal law is still predominantly on a national (or state) default-setting, and territorial jurisdiction remains paramount. In particular, the generation, admissibility and uses of forensic science evidence are still predominantly regulated by national courts, underlining the significance for the present discussion of core methodological precepts of modern comparative law research. One must always be wary of overgeneralising from the peculiarities of individual legal systems or casually extrapolating from one legal jurisdiction to another, in defiance of potentially significant procedural, cultural or practical differences.

III. REGULATING EXPERT EVIDENCE

Expert evidence, of fact or opinion, is admissible in English criminal trials when it is both relevant and helpful 49 to the fact-finder in discharging its adjudicative responsibilities. Unhelpful expert testimony is superfluous at best, and possibly worse than useless in potentially confusing the issue and imposing avoidable litigation costs. Such evidence is inadmissible, not only at law, but also as a direct extrapolation of basic canons of rationality. “Helpfulness” is a flexible standard requiring fact-sensitive contextual application. Trial judges are sometimes called upon to make close judgement calls, weighing up the anticipated probative value of the evidence in resolving disputed facts, against its potential for mischief, muddle or misdirection. The Court of Appeal is unlikely to interfere, unless the trial judge’s decision has strayed off into what English lawyers call “Wednesbury unreasonableness.” 50 Besides, individual admissibility determinations (including those upheld on appeal) are not, for the most part, formal legal precedents, but rather contextual applications of settled legal principles.51

48 See e.g., Alex Biedermann, Christophe Champod & Sheila Willis, Development of European

Standards for Evaluative Reporting in Forensic Science: The Gap Between Intentions and Perceptions, 21 International Journal of Evidence & Proof, 14 (2017); Filipe Santos & Helena Machado, Patterns of Exchange of Forensic DNA Data in the European Union through the Prüm System, 57 Science & Justice, 307 (2017); Tim J. Wilson, Criminal Justice and Global Public Goods: The Prüm Forensic Biometric Cooperation Model, 80 Journal of Criminal Law, 303 (2016).

49 R. v Turner [1975] QB 834, CA; R. v Clarke (Robert Lee) [1995] 2 Cr App R 425, 429–430, CA; R. v Hurst [1995] 1 Cr App R 82, CA; R. v Francis [2013] EWCA Crim 123, [38]–[39].

50 Decisions are unreasonable (or “irrational”) in the Wednesbury sense if they fail to take into account relevant considerations, incorporate irrelevant considerations, or arrive at a conclusion that no reasonable decision-maker, properly appraising salient facts, could have reached: see e.g., Callander v DPP [2002] EWHC 1523 (Admin). Judicial review ensures that so-called “discretionary” decisions are actually an exercise of judgement by the appropriate decision-maker.

51 Cf. Mike Redmayne, Paul Roberts, Colin Aitken & Graham Jackson, Forensic Science Evidence in Question, Criminal Law Review, 347 (2011) (taking a more pragmatic, somewhat less alarmist view of R. v T [2011] 1 Cr App R 9, [2010] EWCA Crim 2439 than many commentators).


Commentators have repeatedly criticized the common law’s approach to expert evidence, especially its supposed laxity and obscurity,52 and pressure for statutory reform had been building for some time. After a wide-ranging consultation exercise, the Law Commission of England and Wales proposed the introduction of a new, more rigorous admissibility framework for expert evidence.53 However, the Government declined to enact the Commission’s proposals, largely on grounds of the anticipated cost of additional admissibility hearings. Instead, the Consolidated Criminal Practice Direction was amended to spell out a range of methodological and contextual factors to which trial judges should have regard when assessing the reliability of “expert opinion evidence,” as a precondition to its admissibility. 54 The revised Practice Direction stresses that “[n]othing at common law precludes assessment by the court of the reliability of an expert opinion by reference to substantially similar factors to those the Law Commission recommended as conditions of admissibility, and courts are encouraged actively to enquire into such factors.”55 In other words, trial judges in England and Wales already have the responsibility at common law, flowing from the elementary principles of relevance and helpfulness, to scrutinise the methodological credentials of scientific or other expert evidence.56

A second, cumulative doctrinal prerequisite to admissibility is that evidence is proffered by a genuine, properly qualified expert. Unless the witness is a legally competent expert there would be no rational basis for treating her evidence as authoritative or reliable. English law’s test of expertise is substantive, not formal: provided that the expert actually has the relevant specialist knowledge or expertise it does not matter how, when, where, or why such expertise was acquired.57 Education, training and formal qualifications may demonstrate expertise, but are not necessarily required. For

52 See e.g., Andrew Roberts, Drawing on Expertise: Legal Decision-Making and the Reception of Expert Evidence, Criminal Law Review, 443 (2008); William E. O’Brian Jr., Court Scrutiny of Expert Evidence: Recent Decisions Highlight the Tensions, 7 International Journal of Evidence & Proof, 172 (2003); R. D. Mackay & Andrew M. Colman, Equivocal Rulings on Expert Psychological and Psychiatric Evidence: Turning a Muddle into a Nonsense, Criminal Law Review, 88 (1996).

53 Law Commission, Expert Evidence in Criminal Proceedings in England and Wales, Law Com No. 325, The Stationary Office (London), (2011).

54 Criminal Practice Directions 2015 [2015] EWCA Crim 1567, CPD V Evidence 19A. Paragraph 19A.5 mentions such factors as “the extent and quality of the data on which the expert’s opinion is based,” the validity of the scientific method(s) employed, soundness of inferential reasoning, statistical methodology (where salient), publication and peer review, expert disagreement, divergence from orthodox practice, etc. These criteria largely reproduce those proposed by the Law Commission, and chime with standard epistemological accounts: see e.g., Erica Beecher-Monas, The Heuristics of Intellectual Due Process: A Primer for Triers of Science, 75 New York University Law Review, 1563 (2000).

55 CPD V Evidence 19A.4, citing R. v Dlugosz [2013] 1 Cr App R 32, [2013] EWCA Crim 2. 56 To broadly similar effect, see Tony Ward, “A New and More Rigorous Approach” to Expert Evidence

in England and Wales?, 19 International Journal of Evidence & Proof, 228 (2015); Tony Ward, Expert Evidence and the Law Commission: Implementation without Legislation?, Criminal Law Review, 561 (2013).

57 R. v Silverlock [1894] 2 QB 766, CCR.


example, an expert could conceivably have acquired consummate skill as a lip-reader58 or foreign language interpreter59 without obtaining any formal qualifications. However, there may be areas of forensic science or other expertise that in practice can be acquired only through formal training or accreditation; and this in itself may produce practical obstacles to ensuring the availability of suitably qualified experts to assist both prosecution and defence in adversarial criminal litigation.60

Lacking discipline-specific forensic science expertise, most trial judges are not well qualified to assess the competence of expert witnesses. They almost inevitably fall back on proxies such as education, qualifications, employment status and membership of relevant professional and learned societies to determine whether particular party-instructed witnesses are bona fide experts. This structural epistemic dependency opens the door to well-documented forensic abuses, especially charlatanism 61 and overreaching,62 respectively items [6] and [7] on the critical “top 20.” Two further features of the broader institutional context of British forensic science are salient. Both are children of austerity politics; and both, in my opinion, demonstrate the inadequacy of market-based models of forensic science provision and regulation.63

The Council for the Registration of Forensic Practitioners (CRFP) was created in 1999, after long discussion and planning, as a direct response to the “charlatanism” worry [6], and with an eye to ameliorating problems of junk science [1], invalidity [2], non-scientific applied methodology [4], human error [5], overreaching [7] and adversarial deficit [14], amongst other well-known potential shortcomings of expert witness testimony.64 Although registration with CRFP was never a formal prerequisite of legal

58 R. v Luttrell [2004] 2 Cr App R 31, CA. 59 Cf. R. v O [2010] EWCA Crim 2985, [27] (“The word ‘expert’ is slightly strange in these

circumstances because it is, of course, very far removed from medical expertise or scientific or commercial expertise, but nevertheless there is no reason why a local person may not have expertise in a local dialect…”).

60 As the Court of Appeal observed in R. v Smith (Peter) [2011] 2 Cr App R 16, [2011] EWCA Crim 1296 (querying the apparently “closed shop” arrangements for training fingerprint examiners in the UK).

61 Verified sightings are notably few in England and Wales, but see Jamie Doward, How Police Put their Faith in the “Expert” Witness who was a Fraud, The Observer, Mar. 23, 2008; Karen McVeigh, The £250,000 “Psychologist” who Fooled the Courts for 27 Years, The Guardian, Feb. 22, 2007; ZakariaErzinçlioglu, British Forensic Science in the Dock, 392 Nature, 859 (1998); RHL Disney, Fraudulent Forensic Scientists, 45 Journal de Médecine Légale Droit Médical, 225 (2002); Cf. Mick Hamer, How A Forensic Scientist Fell Foul of the Law, 91 New Scientist, 575 (1981).

62 A textbook illustration is R. v Clark [2003] EWCA Crim 1020; Meadow v General Medical Council [2007] QB 462, [2006] EWCA Civ 1390. See Joshua Rozenberg, Pathologist misled appeal judges in Sally Clark case, Daily Telegraph, Apr. 12, 2003; Richard Horton, In Defence of Roy Meadow, 366 The Lancet 3 (2005).

63 Paul Roberts, What Price a Free Market in Forensic Science Services? The Organization and Regulation of Science in the Criminal Process, 36 British Journal of Criminology, 37 (1996).

64 For a potted history, see Alan Kershaw, Professional Standards, Public Protection and the Administration of Justice, in Jim Fraser and Robin Williams eds. Handbook of Forensic Science, Willan (Cullompton) (2009).


competency for expert witnesses, it was anticipated that CRFP membership would become an authentic badge of certified expertise in which the courts would increasingly come to invest credibility, perhaps to the point at which CRFP registration would become a presumptive requirement of admissibility. But CRFP never had time to generate this elevated level of judicial confidence: despite promising early activity, within a decade it was gone. Its fate was sealed because, despite significant public funding in the early years, it could not generate enough subscription income to be financially self-sustaining as specified by its business model.65 This (expensive) failed experiment proves that a durable system of expert accreditation would have to be funded by the state, either directly as part of a ministerial department or indirectly as a semi-independent agency. The prospects of institutional reanimation are, approximately, zero for the foreseeable future of austerity justice and, I suspect, far beyond — probably irrespective of the political colour of incumbent government. Police, prosecutors, lawyers and courts will have to continue to muddle along, as they always have, drawing on local knowledge and personal experience to locate, instruct, and verify competent and appropriately qualified experts.

A second major institutional feature of contemporary UK forensic science is the closure of the Forensic Science Service (FSS), a victim of the then newly elected Coalition Government’s orgy of quango-burning in 2010. The FSS ceased operational casework in 2012.66 In retrospect, this catastrophe had been on the cards for a long time, possibly ever since the FSS became a “Next Steps” semi-autonomous agency of the Home Office in 1991, and thereafter was subjected to increasingly stringent market discipline.67 When, with slow motion car crash predictability, it became clear that the FSS could not sustain itself as a viable commercial enterprise (according to some contrived funding formula), the doors were closed on arguably the world’s finest forensic science provider, and its invaluable human and material resources were dissipated.68 It is already quite clear that closing the FSS was a terrible blunder, possibly even in narrow financial terms. This sorry episode demonstrates (if further demonstration were needed) the irrationality of applying rigid market models and solutions to spheres of human

65 “[T]he goal of a self-funding independent accreditation body had not been achieved and the company was facing a long-term shortfall of funding, because the registration income did not match the expenditure… This was likely to become considerably worse because of the withdrawal of support for the registration process by police forces”: HC Debs, 20 April 2009, c 157W (written ministerial answer by Jacqui Smith MP).

66 House of Commons Science and Technology Committee, Forensic Science, Second Report of Session 2013−2014, HC 610, The Stationary Office (London), (2013).

67 Christopher J Lawless, Policing Markets: The Contested Shaping of Neo-Liberal Forensic Science, 51 British Journal of Criminology, 671 (2011); Christopher J Lawless & Robin Williams, Helping with Inquiries or Helping with Profits? The Trials and Tribulations of a Technology of Forensic Reasoning, 40 Social Studies of Science, 731 (2010).

68 This is an (over) simplified version of a more complex, institutionally nuanced story: see Tim J. Wilson and Angela M. C. Gallop, Criminal Justice, Science and the Marketplace: The Closure of the Forensic Science Service in Perspective, 77 Journal of Criminal Law, 56 (2013).


activity that cannot be understood or appreciated in purely economic terms.69 It is no surprise to me that the National Audit Office subsequently reported that the UK market in commercial forensic science provision suffers from a lack of transparency and potentially serious structural weaknesses,70 or that the House of Commons Science and Technology Committee is worried about the paucity of fundamental research and the sustainability of capacity, professional training, and educational provision in UK forensic science.71 Markets simply cannot deliver essentially public goods like high quality forensic science, because there is no institutional “consumer” to discipline the market in alignment with the public interest in the administration of justice.

The rational incentive for the police, themselves under tight budgetary constraint, is to avoid the expense of scientific support whenever they can get away with doing so (e.g., where investigators can secure a confession without scientific evidence), and in other cases drive down costs by commissioning only the minimum forensic service to advance strategic objectives in the investigation. These market incentives are not obviously truth-conducive for criminal adjudication. Why, according to market logic, should police squander their budgets on scientific tests unless the anticipated results are more likely to advance the investigation than to assist the defence? Taking scientific provision “in house,” moreover, is a recipe for falling standards and a major risk-factor for exacerbating confirmation bias in scientific testing and reported results. US experience indicates that the worst abuses in forensic science invariably take place in police labs estranged from supportive cultures of scientific rigour and meaningful regulatory oversight.72 I am not suggesting that British forensic science will replicate the worst of

69 For general critique, see Darryl K Brown, Free Market Criminal Justice, Oxford University Press (New York), (2016).

70 According to a recent review by the NAO, “Police forces are undertaking more forensics work internally and this could undermine the market. Expenditure on private sector forensic services through the framework has declined significantly… Private sector companies are concerned that police force laboratories may be able to operate more cheaply by using police premises without charge or by delaying meeting UK accreditation standards…”: see Briefing for the House of Commons Science and Technology Committee: The Home Office’s Oversight of Forensic Services (December 2014), paragraph 7, available at http://www.nao.org.uk/report/home-offices-oversight-forensic-services (last visited Nov. 30, 2017).

71 House of Commons Science and Technology Committee, Forensic Science, Second Report of Session 2013–2014, HC 610, The Stationary Office (London), (2013); The Forensic Science Service, Seventh Report of Session 2010–2012, HC 855, The Stationary Office (London), (2011).

72 Paul C. Giannelli, The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Laboratories, 4 Virginia Journal of Social Policy and the Law 439 (1997); Paul C. Giannelli, False Credentials, 16-Fall Criminal Justice 40 (2001); Paul C. Giannelli, Houston! We Have a Problem!, 21-Sum Criminal Justice 40 (2006); Paul C. Giannelli, Alchemy, Magic, and Forensic Science, 21-Fall Criminal Justice 50 (2006); Paul C. Giannelli, Wrongful Convictions and Forensic Science: The Need to Regulate Crime Labs, 86 North Carolina Law Review 163 (2007); Paul C. Giannelli, Daubert and Forensic Science: The Pitfalls of Law Enforcement Control of Scientific Research, University of Illinois Law Review 53 (2011); Simon A. Cole, Acculturating Forensic Science: What is “Scientific Culture” and How Can Forensic Science Adopt It?, 38 Fordham Urban Law Journal 435 (2010); Itiel E. Dror, Practical Solutions to Cognitive and Human Factor Challenges in Forensic Science, 4 Forensic Science Policy and Management 1 (2013).


these horrors (I hope it won’t); it is more a question of institutional resilience and avoiding structural relationships with known vulnerabilities to distortion, bias and corrosive bad practice. The current state of market-based forensic provision in England and Wales still leaves much to be desired, as this week’s media headlines — with which this article began — (again) remind us.

One positive institutional innovation of the last decade has been the creation of the office of Forensic Science Regulator to establish and monitor minimum standards of product quality and service delivery in UK forensic sciences. The two office holders to-date have embarked on an energetic programme of standard-setting, compilation of codes of practice, topical reviews, focused inquiries into particular problematic issues and cases, and information synthesis and dissemination through the Regulator’s excellent website and periodic newsletters.73 It must, however, remain an open question whether the Regulator, armed predominantly with the power of rational persuasion but limited authority to force compliance,74 has really been able to guarantee a properly functioning forensic market. The diversity of modern forensic science disciplines, animated by a corresponding variety of entrenched habits of thought, operational protocols and institutional powerbases, represents a complex and challenging environment for any would-be regulator. Ten years on, the labours of the Forensic Science Regulator are still work in progress.75

IV. ADDRESSING THE CHALLENGE: METHODOLOGICAL PRESCRIPTIONS

Introducing her latest Annual Report, the Forensic Science Regulator reflects that, “[i]t is easy to criticise and a great deal more difficult to effect change.”76 I agree, and would add that effective regulatory design and intelligent law reform must be

73 Available at http://www.gov.uk/government/organisations/forensic-science-regulator (last visited Nov. 30, 2017).

74 The Government’s published Forensic Strategy promised proposals to underpin the Regulator’s powers and Codes of Practice with explicit statutory authority: Home Office, Forensic Science Strategy, Cm 9217, 44 (2016). No timetable was indicated, however, and the House of Commons Science and Technology Committee was subsequently “left with serious doubts about the Government’s commitment to deliver this”: Forensic Science Strategy, Fourth Report of Session 2016–2017, HC 501, The Stationary Office (London), (2016), [63].

75 This is also the Regulator’s own self-assessment. “Much progress has been made towards compliance, but significant areas of risk remain”: Forensic Science Regulator, Annual Report: November 2014�November 2015, (FSR, 4 December 2015) 4. “[I]t is clear that the single biggest challenge to achieving my aim is financial: the costs associated with complying with and being assessed against the standards… [Market] instability presents a significant risk to the quality of forensic science work… As the scope of activities requiring quality management increases, the quality management systems employed are reaching their capacity limits… [I]t is becoming clear that not all police forces are fully committed to reaching the required standards… Statutory powers for the Regulator are now needed in order that those organisations that have not committed the resource and effort required to attain the standards can be induced to do so”: Forensic Science Regulator, Annual Report: November 2015-November 2016 (FSR, 6 January 2017) 6�8.

76 Forensic Science Regulator, Annual Report: November 2016–November 2017 (FSR, 19 January 2018) 3.


underpinned by a sound intellectual grasp of the challenges to be confronted. As should be obvious from the preceding discussion, “the forensic challenge” is not really a single governmental problem or agenda, but rather a bundle of related institutional challenges concerning the provision, validation, regulation, interpretation, presentation, testing and evaluation of forensic science services, evidence and testimony. The diversity of the subject-matter and its manifold institutional functions and applications go a long way towards explaining the complexity of the legislative, administrative and policy-making challenges associated with forensic science. Recent British experiences of institutional reconfiguration and legal ordering may well have comparative resonance beyond their immediate jurisdictional context, and this justifies their wider study and inclusion in international conversations about forensic science evidence; with the vital proviso that lessons for overseas scholars and policymakers should be drawn at the level of broad methodological principles rather than particularised “transplants” or “policy transfers.” Practical solutions must inevitably be tailored to local institutional, social and economic conditions.77 This commonplace of comparative legal scholarship has particular salience for forensic science, which is always thoroughly integrated with and sustained by its surrounding procedural environment. It is no mere political slogan to insist, for example, that Chinese forensic science must be forensic science with Chinese characteristics.78

Legal scholars in the common law world have tended to approach the forensic challenge through the rather narrow and potentially distorting lens of evidentiary rules of admissibility. The US Supreme Court’s landmark decision in Daubert 79 has understandably inspired exhaustive scholarly attention, not only within the USA itself but also in innumerable comparative commentaries. 80 Since the US Federal Rules of

77 When legal institutions travel, they almost invariably change: see e.g., Binyamin Blum, Doctrines without Borders: The “New” Israeli Exclusionary Rule and the Dangers of Legal Transplantation, 60 Stanford Law Review, 2131 (2008); Máximo Langer, From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, 45 Harvard International Law Journal, 1 (2004); Pierre Legrand, What “Legal Transplants”?, in David Nelken and Johannes Feest eds. Adapting Legal Cultures, Hart Publishing (Oxford), (2001); Mirjan Damaška, The Uncertain Fate of Evidentiary Transplants: Anglo-American and Continental Experiments, 45 American Journal of Comparative Law, 839 (1997).

78 On procedural traditions in China, see Bo Yin and Peter Duff, Criminal Procedure in Contemporary China: Socialist, Civilian or Traditional?, 59 International and Comparative Law Quarterly, 1099 (2010); HE Jiahong, An Outline for the Reform of the Criminal Evidence System in the People’s Republic of China, 6 Journal of Chinese and Comparative Law, 79 (2003). On legality more generally, see Randall Peerenboom, China’s Long March toward Rule of Law, Cambridge University Press (New York), (2002).

79 Daubert v Merrell Dow 125 L Ed 2d 469; 113 S Ct 2786 (1993). 80 See e.g., Gary Edmond, Emma Cunliffe, Simon A. Cole & Andrew J. Roberts, Admissibility Compared:

The Reception of Incriminating Expert Evidence (i.e., Forensic Science) in Four Adversarial Jurisdictions, 3 University of Denver Criminal Law Review, 31 (2013); Petra van Kampen & Hans Nijboer, Daubert in the Lowlands, 30 UC Davis Law Review, 951 (1997); Paul Roberts, The Admissibility of Expert Evidence: Lessons from America, 4 Expert Evidence, 93 (1996); Stephen J. Odgers and James T. Richardson, Keeping Bad Science Out of the Courtroom — Changes in American and Australian Expert Evidence Law, 18 University of New South Wales Law Journal 108 (1995).


Evidence have attracted considerable interest in China as a potential model for evidentiary reform,81 it would not be surprising if Chinese scholars increasingly turn their attention to Daubert’s celebrated interpretation of FRE Rule 702. Doctrinal questions of admissibility merit serious scholarly examination, and may usefully be informed by comparative perspectives. But there are at least four reasons why admissibility doctrines, with or without Daubert, do not even remotely approximate a comprehensive solution to the forensic challenge.

First, as we have seen, organising, regulating and effectively utilising forensic science services requires an end-to-end approach to integrating forensic science into the administration of criminal justice. In most, if not all, contemporary criminal justice systems, the role of forensic science in criminal investigations, prosecutions and pre-trial proceedings will often be more significant — certainly in aggregate caseload terms — than its more public and often high-profile impact on contested criminal trials. Questions of regulatory policy, which each legal jurisdiction must answer coherently with its own normative commitments and procedural traditions, include such vital matters as how to organise, fund, validate and regulate an adequate range of high quality forensic science services; whether and how to certify competent experts; and whether to treat forensic science as a public sector responsibility or to rely, to some extent, on market forces and private enterprise.

Secondly, questions of admissibility do not exhaust the evidentiary issues posed by forensic science evidence (or expert witness testimony more generally). Once evidence has been admitted into a criminal trial, the question then becomes: what should the find-finder make of it? What is its probative value? How does it bear on the contested issues and relate to other evidence in the case? In England and Wales, these are jury questions in trials on indictment, and we never really know how a particular jury arrived at its verdict.82 But juries are not left to their own devices in interpreting and assessing evidence. By longstanding tradition, trial judges in England and Wales sum up on the facts as well as the applicable law83 and, in general, play a more proactive role in trial management than the “umpireal model”84 of judging often associated with adversarial

81 LI Jia & WANG Zhuhao, A Trail to Modernity: Observations on the New Developments of China’s Evidence Legislation Movement in a Global Context, 21 Indiana Journal of Global Legal Studies, 683 (2014); John J. Capowski, China’s Evidentiary and Procedural Reforms, the Federal Rules of Evidence, and the Harmonization of Civil and Common Law, 47 Texas International Law Journal, 455 (2012).

82 J. C. Smith, Is Ignorance Bliss? Could Jury Trial Survive Investigation?, 38 Medicine, Science and the Law, 98 (1998).

83 R. v Cohen and Bateman (1909) 2 Cr App R 197, CCA; McGreevy v DPP [1973] 1 WLR 276, 281, HL. For (common law) comparative context, see Paul Marcus, Judges Talking to Jurors in Criminal Cases: Why US Judges Do It So Differently from Just About Everyone Else, 30 Arizona Journal of International and Comparative Law, 1 (2013).

84 Marvin E. Frankel, The Search for the Truth: An Umpireal View, 123 University of Pennsylvania Law Review, 1031 (1975).


trials might lead one to expect. They devote considerable time and energy to formulating (increasingly elaborate) summings-up, advising, and in some respects instructing, juries how they might, should, must, or must not think about or utilise particular kinds of evidence. Notoriously fallacious or “prejudicial” inferential reasoning is singled out for warnings and reminders in accordance with a phalanx of “forensic reasoning rules.”85 Several tailored warnings and directions pertain specifically to expert evidence,86 notably to aspects of DNA profiling.87

A third methodological point reappraises the formal legal status of admissibility doctrines and interrogates their practical significance. On closer examination, expert evidence in England and Wales is increasingly regulated not only, or even mainly, by statutory tests or common law precedents, but by a variety of delegated, ancillary and informal instruments that I describe, compendiously, as “hard-working soft law.” Some of these instruments are truly “soft law” in the traditional jurisprudential sense. They include Part 19 of the Criminal Procedure Rules,88 which elucidates the legal duties of expert witnesses; and associated provisions of the Consolidated Criminal Practice Directions,89 which — as previously noted — augment the common law tests for assessing the relevance and helpfulness of expert evidence, more particularly where scientific validity or methodology are challenged. Other important sources of hard-working soft law are not really “law” at all. These include the official instructions for trial judges in criminal cases produced by the Judicial College (materials formerly known as “the Crown Court Benchbook,” before that terminology went out of fashion),90 and guidance issued by the Forensic Science Regulator on a variety of general and more specific topics pertaining to

85 See Paul Roberts & Adrian Zuckerman, Criminal Evidence (2nd edition), Oxford University Press

(Oxford), chapter 15 (2010). 86 See e.g., R. v Henderson [2010] 2 Cr App R 24, [2010] EWCA Crim 1269, [215]–[220]; R. v Flynn

and St John [2008] 2 Cr App R 20, [2008] EWCA Crim 970; R. v Luttrell [2004] 2 Cr App R 31, [2004] EWCA Crim 1344, [42]–[43]: “The general principle… is that a ‘special warning’ is necessary if experience, research or common sense has indicated that there is a difficulty with a certain type of evidence that requires giving the jury a warning of its dangers and the need for caution, tailored to meet the needs of the case. This will often be the case where jurors may be unaware of the difficulty, or may insufficiently understand it. The strength of the warning and its terms will depend on the nature of the evidence, its reliability or lack of it, and the potential problems it poses.”

87 The leading English authority is R. v Doheny and Adams [1997] 1 Cr App R 369, CA. See further, Paul Roberts, LTDNA Evidence on Trial, 7 Frontiers in Genetics, Article 180 (2016); Mike Redmayne, Expert Evidence and Criminal Justice, Oxford University Press (Oxford), chapter 4 (2001).

88 Criminal Procedure Rules 2015 (as amended), available at http://www.justice.gov.uk/courts/ procedure-rules/criminal/rulesmenu-2015 (last visited Nov.30, 2017).

89 Criminal Practice Directions 2015 [2015] EWCA Crim 1567, CPD V Evidence 19A. 90 Judicial College, Crown Court Compendium Part I — Jury and Trial Management and Summing Up

(2017), available at http://www.judiciary.gov.uk/publications/crown-court-bench-book-directing-the-jury-2/ (last visited Nov. 30, 2017); superseding Crown Court Bench Book — Directing the Jury (Judicial Studies Board, 2010).


forensic science methods, practice and regulatory standards. 91 These materials are supplemented by less official sources of guidance produced by a variety of professional associations and scholarly initiative, to which the recently announced “primers” are only the latest, significant addition. The direct, and more pervasively indirect, influence of this voluminous corpus of instruments and informal practice guidance, when aggregated, is utterly belied by their lowly jurisprudential status and marginalisation in legal scholarship.

Hard-working soft law operates, as it were, below the waterline of Evidence textbooks, but represents the ship’s boiler-room and main propeller. One would certainly not derive an accurate impression of the law and practice of expert witnesses in England and Wales by confining one’s gaze to primary legal sources. But I would entertain a more ambitious conjecture. It seems to me that the task of regulating forensic science, in all its diversity, is inherently so complex that detailed frameworks for admissibility and interpretation are unlikely to be reducible to primary legislation, or even to be encapsulated in bulky case law precedent. After all, Rule 702 required extensive interpretation in Daubert, which opened the floodgates to a torrent of further appeals, including two more visits to the US Supreme Court in fairly quick succession.92 Admissibility doctrines establish a framework for receiving scientific and other expert evidence in criminal trials, but further operational guidance is invariably required to assist lawyers, judges and fact-finders to interpret scientific findings and evaluate their probative significance for the instant proceedings.93

Finally, fourth, this expanded frame of reference prompts a more radical reinterpretation of the original “forensic challenge.” The foregoing discussion has, if only implicitly, gone along with the widespread linguistic convention of equating “forensic” and “forensics” with forensic science; and equivalently, treating “forensic evidence” and “scientific evidence” as synonymous. But interpretational issues soon featured in the “top 20” countdown of problems with forensic science evidence, and we have ended up

91 See in particular, Forensic Science Regulator, Information: Legal Obligations, FSR–I–400 Issue 5

(2017); Forensic Science Regulator, Codes of Practice and Conduct for Forensic Science Providers and Practitioners in the Criminal Justice System, Issue 4 (October 2017), available at http://www.gov.uk/ government/organisations/forensic-science-regulator (last visited Nov. 30, 2017).

92 Kumho Tire Co. v Carmichael, 119 S Ct 1167 (1999); General Electric v Joiner, 118 S Ct 512 (1997). See further, Margaret A. Berger, The Supreme Court’s Trilogy on the Admissibility of Expert Testimony, in Federal Judicial Centre, Reference Manual on Scientific Evidence (2nd edition), (2000); D. Michael Risinger, Goodbye To All That, Or A Fool’s Errand, By One of the Fools: How I Stopped Worrying about Court Responses to Handwriting Identification (and “Forensic Science” in General) and Learned to Love Misinterpretations of Kumho Tire v Carmichael, 43 Tulsa Law Review, 447 (2007); Craig Lee Montz, Trial Judges as Scientific Gatekeepers after Daubert, Joiner, Kumho Tire, and Amended Rule 702: Is Anyone Still Seriously Buying This?, 33 UWLA Law Review, 87 (2001).

93 In the US context, also see Federal Judicial Centre, Reference Manual on Scientific Evidence (3rd edition), National Academies Press (Washington, DC), (2011).


discussing general questions of jurisprudential analysis and method. So now replay the narrative backwards. Would it not be just as accurate, and possibly more enlightening, to say that forensic science and expert witness testimony are only particularised institutional manifestations of the more generic forensic challenge of reasoning under uncertainty and drawing epistemically well-warranted, procedurally legitimate inferences from evidence of contested facts? To say, in other words, that scientific evidence is one chapter or subdivision within the interdisciplinary domain of evidence, argument, proof and fact-finding in forensic (legal) proceedings. Then “forensic science” is none other than “evidence science,”94 and their challenges are substantially overlapping if not wholly isomorphic.95

94 Cf. ZHANG Baosheng & ZHENG Fei, Reforming the Criminal Evidence System in China, 9 Asian

Criminology, 121 (2014) (identifying “knowledge in evidence science” as a major shortfall in contemporary Chinese legal education, practice and scholarship).

95 See further, Paul Roberts, The New Interdisciplinary Forensic Science, 43 Journal of Law and Society, 647 (2016); Paul Roberts & Colin Aitken, The Logic of Forensic Proof: Inferential Reasoning in Criminal Evidence and Forensic Science, Royal Statistical Society Practitioner Guide No. 3 (London), (2014), available at http://www.rss.org.uk/statsandlaw (last visited Nov. 30, 2017); Philip Dawid, William Twining & Mimi Vasilaki eds. Evidence, Inference and Enquiry, Oxford University Press (Oxford), (2011); Terrence Anderson, David Schum &William Twining, Analysis of Evidence (2nd edition), Cambridge University Press (Cambridge), (2005).

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