Law News speaks to forensic scientist, expert witness and author Dr Anna Sandiford

This week, we continue our interview with Dr Anna Sandiford, one of New Zealand’s top forensic scientists and expert witnesses in the criminal arena and the author of Forensic Science and the Law: a Guide for Police, Lawyers and Expert Witnesses (Thomson Reuters, 2013).

In the last issue, Dr Sandiford spoke to Law News about her new book and some of her experiences of interacting with the legal world as an expert forensic scientist. This week, she comments, from her unique point of view, on topical issues in the legal world such as standards for expert witnesses, the use of cameras in court and whether we need a Criminal Cases Review Commission here.

You discuss the role of the expert in Forensic Science and the Law – what your thoughts are on the current standard and rules we have in place governing experts in New Zealand? Are any changes or improvements needed?

Expert witnesses with relevant professional memberships should already be covered by some form of code of conduct or ethics. However, those codes may not have a forensic aspect to them. We have Schedule 4 [of the High Court Rules], the High Court Code of Conduct for Expert Witnesses. In my opinion, that Code should be compulsory for all divisions of law. My experience is that not enough time is spent checking experts’ reports for adherence to Schedule 4 and ensuring that the expert and the expertise are fit for a particular case.

Last year, the Forensic Science Regulator of England and Wales, who is government-appointed and oversees the industry, produced a 100+ page document on the legal obligations of the expert witness. This is in addition to Part 33 of the Criminal Procedures Rules and Part 35 of the Civil Procedure Rules [which apply there], both of which relate specifically to experts and are compulsory. The American review of forensic science (the 2009 National Academy of Sciences report) was hugely critical of the standards of forensic expertise and much national research and investment has taken place since then to improve matters. New Zealand has a seven-point, non-compulsory code. I think we can improve.

What are your thoughts on the levels of blood and breath alcohol currently allowed in New Zealand – have we got this right?

Professionally, we work with the law that was in place at the time of a given incident; whether or not the law is appropriate is not our role.

Personally, I would prefer a lower drink drive level than 80 mg/100 ml blood. At this level, the law is allowing people who are likely impaired to make a subjective decision about their own ability to operate a motor vehicle safely. Some people are not significantly impaired at this blood alcohol level, but many are. I often take my handheld breath testing device with me to house parties and people are amazed at how much they can drink and not be over the legal limit to drive. I have also been known to persuade them not to drive because of the delay in drinking alcohol and the related increase in their blood alcohol level.

I would also like to see a statutory requirement for 15 minutes to elapse between the time of a breath screening test and the time of an evidential breath test. Evidential breath tests completed within this time run the risk of being affected by mouth alcohol effects and interfering substances such as the use of mouth washes, asthma inhalers and such like.

I have heard Judge Tremewan speak several times about the Alcohol and Other Drug Treatment Courts (AODTC). I am a big supporter, having seen many recidivist drink driver cases pass over my desk in the last decade. They are an expensive method and don’t suit everyone but they do seem to work and I would like to see the Government recognise the value of them and fund them nationally on as permanent a basis as possible.

Do we need a Criminal Cases Review Commission (CCRC) in New Zealand, or is the current appeals/prerogative of mercy system working as it is?

In my opinion the system at present does not provide a sufficient option for review of potential miscarriages of justice. Once a case gets past the first trial and a conviction is recorded, the hurdles for such cases are enormous, particularly if any appeal is quickly dismissed. I realise that it can’t be made too easy otherwise everyone would challenge their convictions but I am of the opinion that there should be another process available.

It is my experience the problems with many cases that have to run the course to the Privy Council or Royal Prerogative of Mercy had some elements to them that were not properly tested prior to the first trial, i.e. the primary issues are not matters of law. They usually stem from a lack of sufficiently robust testing of elements of the case that were accepted as fact or went unchallenged, including the investigation itself.

The cases in which I have been involved have taken about 10 years to get to the stage where another full review can take place – and that is for cases that have been pushed the whole way by a legal team and/or a persistent lay individual, with very little funding. Individuals or families without those drivers who want cases reviewed have little or no chance.

A team has now been put together comprising independent experts working with Dr Chris Gallavin at the University of Canterbury Law School where the New Zealand Public Interest Project (PIP) has been established to provide an impartial, independent assessment of a wide range of cases including criminal cases.

The project is just up and running but my long term hope is that the immense pressure of pursuing cases like this in isolation can be better managed and a final result achieved in less than a decade. From an expert witness’s point of view, I hope that PIP ultimately assists in raising standards of expert witnesses and their evidence.

What are your views on the increased use/appropriateness of cameras and other technology in courts?

My experience is that the presence of video screens for the jury, judge, legal teams and on the witness box has been very useful presenting graphical and photographic evidence. It is much easier to more accurately point to relevant areas on a screen that is in close proximity and incorporate a verbal description of those areas into the court record than it is to gesticulate indistinctly at a single projector screen or to try to describe something verbally only. Also, videolinks are a fact of life now and I understand how beneficial they can be if used from prisons. They also make it much easier for New Zealand to have access to a range of expertise from overseas that we just do not have onshore because of our population size.

Any graphical reconstructions that are played in court can be immensely helpful, such as 360-degree crime scene mapping. During the Bain retrial I found the animation of the mechanism for a firearm magazine loading a round into a breech much easier to understand than just a verbal explanation. However, as with any imagery, the potential for prejudicial influence is high, [so] agreement has to be sought from all parties about what is being depicted. The potential risk must be managed in a timely fashion – it takes many hours to put together a CCTV compilation of events so it has to be done properly with the content accepted by all relevant parties. TV cameras are of course a different thing altogether. Again, sight and sound of court room events is a powerful method of presentation so it can be very effective if done properly and responsibly. When giving evidence it can initially be distracting but then you learn to ignore it.

My concern comes from the accuracy in reporting. Selecting pieces of evidence to show on the news can be immensely emotive and highly prejudicial. Even if the jury in the courtroom doesn’t see it during a trial, the court of public opinion is harsh and can be more damaging than even the most unhelpful trial witness. I have first-hand experience of television presentation of case evidence being inaccurate; the simplest case was when I was sitting next to a defence lawyer at the end of a day at court. The news was on TV and it showed something that was supposed to have happened in court that day and then the footage cut to an apparent reaction by someone in the court. The tie the lawyer was allegedly wearing that day as depicted on the TV was different from the one he was actually wearing – and he hadn’t changed it; the footage had been cut from another day but was implied to be from the same day.

Dr Sandiford’s latest book, Forensic Science and the Law - A Guide for Police, Lawyers and Expert Witnesses (Thomson Reuters, 2013), draws on her first-hand experience as a scientist, consultant and expert witness to explain different aspects of forensic science in an understandable way for non-scientist lawyers involved in court proceedings. ADLS’s bookstore has it for sale for $98 plus GST ($112.70 incl. GST), or for the special price of $88.20 plus GST ($101.43 incl. GST) for ADLS members. Postage and packaging are additional. For more information, or to purchase, please visit www.adls.org.nz or contact the ADLS bookstore by phone: 09 306 5740, fax: 09 306 5741 or email: thestore@adls.org.nz.

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