We are loyal to those that retain us. Biologists at the Centre of Forensic Sciences (CFS) are assigned case files to process exhibits submitted to them from the police. These cases are almost always of a serious nature, involving dozens to hundreds of exhibits. What ensues are ongoing teleconferences, meetings and e-mail correspondence between the biologist and Ident officer.
Biologists often appear to be taking their direction on what should be tested and in what priority sequence from the police/Crown.
Confirmation bias is a risk when there is a tight relationship between the two. We should no longer tolerate a police monopoly on the CFS. It’s time for change.
Confirmation bias is the same species as tunnel vision. It occurs when someone tailors their investigation to find and collect evidence that supports their theory. This leads to the exclusion of evidence that may be relevant if it does not support their theory and reporting in a manner that favours their theory.
A demand for change is in order. Where possible, defence counsel needs to be involved in the testing process. Too often what is tested depends on what the Crown/police want. This leads to an impartial selection that could be linked to their confirmation bias.
A lack of independence contributing to compromised impartiality should result in the exclusion of the evidence entirely.
Ultimately it is defence counsel who takes carriage of this fight. I call upon fellow defence counsel to:
- 1) Educate junior counsel. Let them know that they can contact the biologist at any time. They are not the property of the Crown. Warn them that their correspondence will be immediately copied to the Crown;
- 2) Request to be involved in the process where the investigation is ongoing;
- 3) Review disclosure with a fine-tooth comb. Create your own spreadsheet if necessary. Ensure all communication between CFS and police has been disclosed;
- 4) Draft a chapter of cross-examination devoted to the issue of independence;
- 5) Create submissions relating to admissibility/weight;
- 6) Petition the government to fund independence audits; and
- 7) Participate in a CFS testimony review program when requested.
Will CFS ever be completely independent from the police/Crown? No. This doesn’t mean that our expectations for improvement should be snuffed out.
Originally published in the Lawyer’s Daily January 16th, 2019: https://www.thelawyersdaily.ca/articles/9698/relationship-between-police-and-forensics-impedes-independence-laurelly-dale