CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, July 13, 2015

Campbell & Walker on Pathological Error

Kathryn M. Campbell and Clive Walker (University of Ottawa and University of Leeds - Centre for Criminal Justice Studies (CCJS)) have posted Pathological Error: Reacting to the Limits of Expertise in Legal Process (Law & Justice Review, Year III, Issue 5) on SSRN. Here is the abstract:

The application of medical expertise within a legal context presents a number of difficulties that demand consideration if the courts are to continue to rely upon complex medico-scientific evidence in criminal cases. Using examples from England and Wales, this article examines how miscarriages of justice have systematically resulted from the expert testimonies of paediatric forensic pathologists in criminal cases involving Sudden Infant Death Syndrome (SIDS). Although there are regulatory bodies in place to ensure that forensic pathologists conduct themselves professionally, we argue that the courts must also recognize the intrinsic limits to their expertise. Paediatric forensic pathologists are ‘gate-keepers’ who determine how medical and legal institutions will deal with child fatalities when the cause of death is suspicious or unascertained. Over the course of their infant death investigations, paediatric forensic pathologists will make what are often subjective interpretations of complex data concerning the child’s medical, social, and familial histories. Such interpretation is open to dispute, so over-reliance upon a particular expert witness increases the likelihood that a verdict will be declared unsafe upon review. Comparisons will be made to the recent province of Ontario experience with the Goudge Commission of Inquiry into Paediatric Forensic Pathology and its subsequent recommendations.

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There is nothing worse in a criminal trial than a high falluten expert up there who renders judgment based on horse manure medical theories or scientific analysis. The central attack on this can be on a "Sufficiency of evidence in a circumstantial evidence case" analysis under Jackson v. Virginia. A so called scientific based opinion is not facts on the ground, not an observation of things seen or done, and not a presentation of true evidence. Have the so called "expert" take a photograph of the paradigm or other invented construct of which he speaks and show the jury the true picture. It is one thing for a medical doctor to testify that he took an xray of the defendant's brain and there is indeed a bullet lodged in there which impedes blood flow and causes perhaps a seizure. That is testimony about some facts which we can see in an xray. When they yak about homophobic reaction to multiladinal stress then the objection should be sustained.

Posted by: Liberty1st | Jul 14, 2015 2:23:08 AM

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