Bruce A MacFarlane, QC, “Wrongful Convictions: Determining Culpability When the Sand Keeps Shifting”

Working Abstract

The forensic sciences have for decades produced valuable evidence that has contributed to the successful prosecution of those who have committed offences, as well as the exoneration of those who were innocent. However, advances in some of these forensic sciences, especially DNA technology, now show that in some cases forensic sciences may also have contributed to wrongful convictions. This is especially the case in the so-called “interpretative” forensic sciences such as hair microscopy, fingerprint evidence, and forensic pathology—which rely primarily on the judgment of an individual rather than having a scientific underpinning. Forensic science—and its relationship to the criminal justice system—is now at a critical juncture in Canada. Criminal trials seek facts, certainty, and finality. Forensic science and medicine, on the other hand, provide opinion-based conclusions which may change as professional views become more refined or are completely overtaken by new technologies. As a consequence, after all trial and appellate proceedings are complete, the factual matrix can shift, leaving the result of a trial substantially in doubt. What is presented to a court may therefore be nothing more than a “snapshot” of the forensic view at that point in its evolutionary continuum. The pivotal question that arises is this: How do we avoid miscarriages of justice when core facts established at trial later turn out to have been a moving target? Canadian courts have established several legal pathways which serve to rationalize this tension between law and science. But the price to pay may be that despite the well-entrenched principle of finality, some criminal cases anchored on forensic science will never truly be “over”.

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