The Gazette 1995

GAZETTE

DECEMBER 1995

important to consider the following issues:

the forensic realm results in miscarriages of justice of a notorious type. It may well be that a successful defence of the traditional rudiments of | evidence must still be mooted by lawyers in the light of scientific progress and machine dominated fields | of information. Such a stance is taken by McEvoy, 22 and is perhaps an j appropriate note to end on: | Of course hostility to the hearsay rule has other sources. It is not difficult to j produce examples of its operation that I are an affront to common sense. It may j be felt that a modern jury is capable of giving hearsay proper weight. But the j exclusion of evidence is a component \ j offair procedure, most obviously in the \ case of "prejudicial" evidence. And \ how can anyone, even a juror, know j how to properly weigh evidence untested by cross-examination? j y The voice of the advocate, when faced with infomatics, may still make that | point. I 1. [1908] 2 KB 333 at 340. 2. 76 Cr App Rep 23. 3. Nyssens, Allison 'The Law of Evidence: On line with the Computer ! Age? (1993) 10 E.l.P.R. 360. I 4. (1991) Crim. L.R. 288. 5. (1991) Crim. L.R. 288, 289. 6. (1991) Crim. L.R. 1992. 7. (1991) Cr. App. R. 139. 8. (1993) Crim. L.R. 48. j 9. (1993) Crim. L.R. 50. ! 10. Cross on Evidence, 7th ed., Tapper. | (1990) at p. 560. (Butterworths). | 13. (1986) 86 Cr. App.R. 267. | 14. Irish Times, April 10, 1995. ; 15. Oxlee, G.,'Evidence from imagery' (1993) New Law Journal 9 15 (June 25, 1993). 16. ibid, @916. I 17. ibid, @917. j 18. [1990] I.L.R.M. 569. 19. Nyssens Supra fn. 14 at p.364, 365. ! 20. Research study No. 11, HMSO 1993 @ j 140. | 21. ibid, @ 143. : 11. (1993) Crim. L.R. 862. ; 12. (1993) Crim. L.R. 681. 22. McEvoy, Donal 'Police Documents as Admissible Hearsay' (1993) Crim. L.R. 480 @ 489. • | *Caroline Fennell is a Statutory I Lecturer in Law at UCC. I References: j

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In a recent research study carried out for the Royal Commission on Criminal Justice on the role of forensic science evidence in criminal proceedings, adjudging the ability of our legal system to come to terms with new worlds of knowledge, the respective aspirations of lawyers and scientists were identified: "Both experts and lawyers regard themselves as assisting the court in the administration of justice, but experts do not share lawyers' commitment to an adversarial framework" 20 . As noted in the report the adversarial trial is not designed simply to facilitate the communication of scientific knowledge to the court. The conclusion of the research study on the role of forensic science evidence in criminal proceedings serves as a timely and cautionary reminder of what values and rights are after all at stake here. "The complexity of the process of scientific evidence production . . . and the consequent evaluative difficulties, indicate the need to regard all scientific evidence with caution. Although science can have great utility in a forensic context the risk of over- reliance is obvious and attested to by the recent miscarriage cases. Our research suggests that the potential for error resides in all cases in which forensic science evidence is utilised. Defence solicitors and triers of fact, in particular, should be made aware of its limitations." 21 What then is the the best defence of the rules of evidence, so often and readily relegated to archaic status in the face of a rush to assimilate and adopt, in all aspects of life that which makes things go faster or what we think of as better? The best defence is ultimately that which addresses the question of the suitability of those goals of efficiency or speed, for the process of adjudication of legal disputes or the resolution of innocence or guilt. Perhaps these questions are simply ones we are not any better at, despite the march of time of the evolution of scientific processes. Indeed as we have seen, the hasty adoption of the latter in 6. Conclusion

1. Whether the document was

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produced by a computer; 2. What degree of human error could have affected the resulting document; 3. What evidence exists to suggest that the computer system was working properly at the relevant time; ! 4. In any case where computers have been involved in the production of documents, it must be proven, quite apart from the question of whether the source of the information was reliable, that the computer was operating properly at the relevant time, or at least that any malfunction did not adversely affect the documents in question; 5. What understanding of the computer does the person have who is offering testimony as to the proper functioning of the computer; and 6. Although the witness testifying need not be an expert, especially in the event that the evidence is given i orally in court and thus subject to cross-examination, neither should it be easy to have evidence admitted qualifications should constitute a hurdle to admissibility in the first place. Although focussed on the English position as modified by PACE, Nyssens suggestions could, with profit, be adopted in relation to the framework provided by the 1992 Act. It is certainly true that the parameters currently drawn for the reception of this kind of evidence are insufficient. The lack of clarity in this area is all the more regrettable given the recent level of appreciation and awareness of those involved in the legal (and indeed the scientific) world of the dangers of the potential clash of the respective cultures and the difficulties inherent in the accommodation and analysis of scientific evidence in the context of adversarial structures. 320 by virtue of producing a witness whose poor qualification to testify then only reflects on the weight ! given to the evidence after admission. The person's

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