Sun, Oct 03, 2004 - Page 9 News List

Silence in court: forensic science on trial

New types of forensic evidence are being used to gain convictions. But much of it is suspect, defense lawyers say -- and judges agree

By Alex Wade  /  THE GUARDIAN , London

When Darren Surutan stood trial in 2002 for the manslaughter of his partner, Sarah Lee, no fewer than 10 medical experts gave evidence on two simple issues: How many bruises were on the victim's face, and had Lee, an alcoholic, acquired them in a fall or been assaulted by the accused? The experts gave profoundly conflicting medical evidence. Last May, an appeals court in London quashed Surutan's conviction on the grounds that the jury, with inadequate guidance from the judge, would have been thoroughly confused by the deep disagreements between the experts.

Two months later, a British teacher Sion Jenkins' 1998 conviction for murdering his foster daughter was quashed when the appeals court ruled that new forensic evidence made his conviction incorrect. Jenkins is on conditional bail with a retrial date provisionally set for April.

Other high-profile UK cases, including those of Angela Cannings and Sally Clark, freed after their convictions for murdering their babies were overturned, have put a question mark over the ways forensic evidence is used. Public belief in experts appears to be at an all-time low, as acknowledged by the Expert Witness Institute in publicity material for its conference next month. Noting that "expert evidence is under attack," it exhorts prospective attendees to "help us restore public confidence in expert witnesses."

Jane Hickman, a criminal defense lawyer and secretary of the Criminal Appeal Lawyers Association, agrees that the system is flawed.

"No one asks, `How far should we go with forensic evidence?' and it's increasingly becoming the whole story in a trial. The trend, as science advances, is for the [prosecution] to adduce evidence that is not sufficiently developed. Juries are being asked to draw conclusions that the evidence can't bear," Hickman said.

And in a political climate where defendants are seen as getting off lightly, ever more esoteric expert evidence can, according to Hickman, unduly sway a jury.

"There are more and more branches of expertise being proclaimed. It is a very worrying development," she said.

Her views are echoed by leading lawyer Patrick O'Connor, who has represented defendants in several controversial cases.

O'Connor says: "It's not that there is an objection to forensic evidence per se, but where things go wrong is in the handling of that evidence in court. Very often these cases of so-called expert evidence are not based on science."

One controversial area is ear-print identification. Last January Mark Dallagher was cleared in a retrial of murdering a 94-year-old woman, having made British legal history in 1998 when he became the first man to be convicted of murder by ear-print evidence. A jury in Leeds had found him guilty after hearing evidence from Cornelius van der Lugt, a former Dutch policeman, who said that Dallagher, a convicted burglar, had left ear-prints on the woman's window before breaking into her house.

Subsequently, DNA analysis of ear-prints left at the murder scene undermined van der Lugt's expert testimony. Following an appeal and a new police investigation, the prosecution decided to offer no evidence against Dallagher.

His counsel, James Sturman, told the court: "This is another example of the dangers of the police following scientists too closely when the scientists are building a science, not following a science."

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