http://www.justice.gc.ca/eng/dept-min/pub/pmj-pej/p9.

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The ultimate role of the trier of fact is not to be usurped by expert evidence; Appropriate and non-misleading language be used in reporting forensic conclusions; and Forensic evaluation services no longer be the exclusive domain of the state.

Expert evidence has traditionally been admitted as an exception to the rule against opinion evidence, to assist the trier of fact to understand and rule on complex and technical issues that may be above the general level of knowledge. The basic underlying premise of expert scientific evidence is that the opinion to be considered by the trier of fact given by someone with special knowledge and training is the result of disinterested, objective and scientifically sound reasoning. However, some expert opinions can present difficulties to the trial process. Sometimes, it appears the experts are not terribly impartial. Some are far from expert. On occasion, their evidence may be seen as virtually infallible, having more weight than it deserves, with the result that the evidence distorts the normal fact-finding process at trial. Finally, sometimes objective sciences such as DNA later show that the opinions tendered in evidence were simply wrong.[208]

III. MACFARLANE PAPER

Bruce MacFarlane Q.C., following an analysis of the perils of the reliance on unreliable forensic evidence and faulty expert opinion testimony, made the following recommendations:[209] The risk that scientific evidence may mislead a court has several dimensions. Organizationally, a forensic laboratory may be too closely linked with law enforcement and the investigative function, causing scientists to feel aligned with the police. The very nature of the proposed evidence (or its manner of presentation) may be so imprecise and speculative that whatever probative value it may have is significantly outweighed by its prejudicial effect. During the trial, defence counsel need the tools to test the accuracy and value of the evidence through an effective crossexamination. I will deal with each in turn.

c) b) Reliability Issues

Microscopic hair comparison evidence should be abandoned in favour of DNA testing on any matter of significance. Expert evidence which advances a novel scientific theory or technique should be subject to special scrutiny by prosecutors and the judiciary to determine whether it meets a basic threshold of reliability, and whether it is essential in the sense that the trier of fact will be unable to come to a satisfactory conclusion without the assistance of an expert. Forensic experts should avoid language that is potentially misleading. Phrases such as consistent with and match, especially in a context of hair and fiber comparisons, are apt to mislead. Other examples include the assertion that an item could have originated from a certain person or object when, in fact, it may or may not have.

Effective Cross-Examination During pre-trial disclosure, the defence will usually receive forensic reports outlining the tests that were performed and describing, in conclusive terms, the results reached. These are often inadequate for independent review.

Defence counsel should be provided with the underlying raw data: the actual test results, notes, worksheets, photographs, spectrographs, and anything else that will facilitate a second, independent assessment. Defence counsel should be entitled to see the written correspondence and notes of telephone conversations between the investigators and the laboratory about the examination in question. Defence counsel should receive a description of any potentially exculpatory conclusions that reasonably arise from any testing procedures undertaken by the laboratory relied upon by the prosecution.

In the final analysis, the key issues to be considered are: 1. 2. 3. 4. 5. 6. The validity of the science; The qualifications of the expert; The quality and validity of the testing procedures; The objectivity and independence of the opinion; The proper evidentiary foundation being laid; and Relevance to an issue in dispute.

Fibers
Fibers are taken from all over the crime scene to see if they match any of the suspect's clothes. Fibers can be found from a very wide variety of materials - animal fibers of varying sorts (eg wool), vegetable fibers (eg cotton, hemp), mineral fibers (eg asbestos) and man-made fibers (eg nylon, polyester). Analysis through the microscope can usually identify the fiber, although various chemical tests are necessary for the man-made fibers.

The first step from evidence to proof where of fibers are concerned is the identification of the fiber types. An investigation to the whole wardrobe of the individuals is necessary to determine whether or not the questioned type of fiber is present. To the eye of the expert, most kinds of natural fibers are so familiar that one look under the microscope is sufficient to recognize the special type involved. In a preliminary examination for studying details of fiber structure, it is advisable to begin any analysis with a pre-selection at a low magnification before opening the scotch tape or even before using a mounting medium. It is of great importance to study first the degree of dustiness of the fibers and eventually the adhering impurities which are able to increase the evidential value. This is why samples should not be cleaned. Cleaning often destroys traces of soap, water, repellent agents, dry cleaning, residues, moth repellents, etc., which may detected by ultraviolet light.

Mountings are made in an embedding medium with an appropriate refractive index in order to give the maximum of contrast. The study of the general aspect of fibers includes not only the form and outline, but the natural ending of the fiber. To preserve these endings and not to cut all the fibers is most important. Cross-section studies are not so important in natural fibers as in man-made textile. There is however an exception, such as in some plant fibers (hemp and flax) and animal hairs.