Neurolaw in Australia: The Use of Neuroscience in Australian Criminal Proceedings

I recently posted preprints of the above article (coauthored with Armin Alimardani), forthcoming in Neuroethics. Here is the abstract:

Recent research has detailed the use of neuroscience in several jurisdictions, but Australia remains a notable omission. To fill this substantial void we performed a systematic review of neuroscience in Australian criminal cases. The first section of this article reports the results of our review by detailing the purposes for which neuroscience is admitted into Australian criminal courts. We found that neuroscience is being admitted pre-trial (as evidence of fitness to stand trial), at trial (to support the defence of insanity and substantial impairment of the mind), and during sentencing. In the second section, we evaluate these applications. We generally found that courts admit neuroscience cautiously, and to supplement more well-established forms of evidence. Still, we found some instances in which the court seemed to misunderstand the neuroscience. These cases ranged from interpreting neuroscience as “objective” evidence to admitting neuroscience when the same non-neuroscientific psychiatric evidence would be inadmissible for being common sense. Furthermore, in some cases, neuroscientific evidence presents a double-edged sword; it may serve to either aggravate or mitigate a sentence. Thus, the decision about whether or not to tender this evidence is risky.

You can find it on the following services:

SSRN: Neurolaw in Australia: The Use of Neuroscience in Australian Criminal Proceedings

LawArXiV: Neurolaw in Australia: The Use of Neuroscience in Australian Criminal Proceedings

UQ Expert Evidence Colloquium (Aug 30, 2018)

On August 30th 2018, the UQ Law, Science and Technology Program convened a series of talks on expert evidence at the Supreme Court Library (find the program here). 

For those who could not make it, and for those wishing to follow up on the talks, we have compiled brief summaries and lists of the authorities the speakers relied on.

Essential Reading

1.     A user-friendly guide to cross-examining forensic experts:

Gary Edmond et al, ‘How to cross-examine forensic scientists: A guide for lawyers’ (2016) 39 Australian Bar Review[PDF]

2.     A short and easy-to-read review of the forensic sciences from a leading scientific body:

President’s Council of Advisors on Science and Technology, ‘Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods’ (2016). [link]

3.     A slightly longer review of the forensic sciences from a leading scientific body:

National Research Council, ‘Strengthening Forensic Science in the United States: A Path Forward’ (2009). [link]

Rachel Searston & David Hamer

Rachel Searston & David Hamer

Dr Rachel Searston – ‘Expert Evidence and Evidence on Expertise: Are Forensic Experts’ Decisions a Blackbox?’

Summary: Rachel discussed the psychological processes by which people gain expertise, and why it is typically impossible for them to explain how they are making their decisions. She focused on fingerprint experts.

Nguyen v R [2017] NSWCCA 4

Jason M Tangen, Matthew B Thompson & Duncan J McCarthy D, ‘Identifying fingerprint expertise’ (2011) 22:8 Psychological Science 995. [PDF]

Alice Towler et al, ‘Are Forensic Scientists Experts?‘ (2018) 7:2 Journal of Applied Research in Memory and Cognition 199-208. [link]

David Hamer

David Hamer

Professor David Hamer – ‘Expert Evidence and Wrongful Convictions in the Adversarial Process’

Summary: David examined the many cases in which expert evidence has contributed to a wrongful conviction. He suggested that the adversarial system is not particularly well-suited to controlling unreliable and misleading expert evidence.

R v Keogh (No 2) [2014] SASCFC 136

Wood NSW [2018] NSWSC 1247

Burrel v R (2008) 238 CLR 218

Cheng v R (2000) 203 CLR 248

Darkan v R (2006) 227 CLR 373

R v Taufahema (2007) 228 CLR 232

R v Van Beelen [2016] SASCFC 71

R v Hodges [2018] QCA 92

Mickelberg v R (1989) 167 CLR 259

Lawless v R (1979) 142 CLR 659

Ratten v R (1974) 131 CLR 510

Meachen [2009] All ER (D) 45 (EWCA Crim 1701)

DPP Guidelines (Queensland)

Expert Code of Conduct (Uniform Civil Procedure Rules) (NSW)

Judicial Commission of NSW, Conviction Appeals in NSW (2011)

Simon Cole, ‘Forensic Science and Wrongful Convictions: From exposer to contributor to corrector’ (2012) 46 New England Law Review 711. [link]

Stewart Field & Dennis Eady, ‘Truth-finding and the adversarial tradition: the experience of the Cardiff Law School Innocence Project’ (2017) Criminal Law Review 292. [link]

Stephanie Roberts, ‘Fresh Evidence and Factual Innocence in the Criminal Division of the Court of Appeal’ (2017) 81 Journal of Criminal Law 303. [PDF]

Bibi Sangha & Robert Moles, ‘MacCormick’s Theory of Law, Miscarriages of Justice and the Statutory Basis for Appeals in Australian Criminal Cases’ (2014) 37 University of New South Wales Law Journal 243. [link]

Benjamin Dighton

Benjamin Dighton

Benjamin Dighton – The language of expert evidence and the law

Summary: Ben discussed the challenges of translating expert evidence to lay factfinders.

Lewis v The Queen (1987) 88 FLR 104

King v Parker [1912] VLR 152

Briginshaw v Briginshaw (1938) 60 CLR 336

Clark v Ryan (1960) 103 CLR 486

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

R v Kleimeyer [2014] QCA 56

R v Sica [2014] 2 Qd R 168

FBI Laboratory Announces Discontinuation of Bullet Lead Examinations (2005)

David H Kaye, The Double Helix and the Law of Evidence (June 26, 2009) Penn State Legal Studies Research Paper No. 9-2010. [link]

Mehera San Roque

Mehera San Roque

Mehera San Roque – ‘After Admissibility: Expertise and Imaginary Law’

Summary: Mehera, focusing on Uniform Evidence Law jurisdictions, found courts have not adequately kept unreliable expert evidence from impacting decisions. For example, expert codes of conduct are not always enforced, courts do not engage with leading reports demonstrating that proffered evidence is unreliable, and notionally expert evidence is sometimes admitted under obscure common law exceptions.

Honeysett v R [2014] HCA 29

Chen v R [2018] NSWCCA 106

The Queen v Dickman [2017] HCA 24

IMM v The Queen [2016] HCA 14

JP v DPP [2015] NSWSC 1669

Nguyen v R [2017] NSWCCA 4

Smith v The Queen (2001) 206 CLR 650

Evidence Act (No 25) 1995 (NSW) ss 76, 78, 79, 137

National Institute of Standards and Technology, ‘Latent Print Examination and Human Factors: Improving the Practice through a Systems Approach’ (2012). [link]

Mehera San Roque & Kaye Ballantyne

Mehera San Roque & Kaye Ballantyne

Kaye Ballantyne – ‘To Err is Human’

Summary: Kaye discussed the validity of several fields of forensic science. The reality is that, for many of these fields, the method’s accuracy is completely unknown and examiners cannot say how likely it is that they made an error.  

See the PCAST and National Academy of Sciences Reports above.

Kathryn McMillan QC

Kathryn McMillan QC

Kathryn McMillan QC - ' Beyond Common Knowledge: Reviewing the use of Social Science Evidence in Australian Courts'

Summary: Kathryn considered the (considerable) challenge of developing a rational and practical system for bringing social scientific knowledge into the courtroom.   

JJB v The Queen [2006] NSWCCA 126

Longman v The Queen (1989) 168 CLR 79

R v Fong [1981] Qd R 90

Osland v The Queen [1998] HCA 75

Runjanjic v The Queen (1991) 56 SASR 114

Farrell v The Queen [1998] HCA 50

National Domestic and Family Violence Benchbook

Annie Cossins, ‘Time Out for Longman: Myths, Science and the Common Law’ (2010) 34:1 Melbourne University Law Review 69. [PDF]

Justice Peter Applegarth

Justice Peter Applegarth

Justice Peter Applegarth

Summary: Justice Applegarth reflected on the talks before him and discussed the challenges in introducing reliable social framework evidence into court.

Photo credits go to Nadine Davidson-Wall.

For the full photo album, go here

Some notes on Constructing Evidence and Educating Juries: The Case for Modular, Made-In-Advance Expert Evidence about Eyewitness Identifications and False Confessions (Jennifer L Mnookin)

At the recommendation of one of the editors of the Osgoode Hall Law Journal, I recently read Jennifer Mnookin’s excellent article on “modular” expert evidence. In our forthcoming paper, Will Crozier and I suggested that expert evidence about false confessions and the fallibility of eyewitness memory is excluded on the basis of a misunderstanding of human psychology. In short, Canadian courts deem expertise unnecessary because it simply duplicates the knowledge and experience and the factfinder. We disagree: people are often not aware of how their memory works and how strong the impact of the situation is on their behaviour (including those forces that produce false confessions).

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R v Livingston: Bias, I presume?

Canadian courts are increasingly interested in the bias (and partiality and non-independence) of expert witnesses. An Ontario trial court’s recent decision in Livingstone to exclude a computer expert is an excellent example of that trend (or what anecdotally seems like a trend). In this note, I’ll go over Livingston and try to explain its significance.

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R v Comeau: Who decides history?

By now, the Supreme Court of Canada’s boozy federalism decision in R v Comeau is old news. And – no doubt – many important things can be said about Comeau and cooperative federalism, originalism, and precedent. My interest, however (and not surprisingly), is in the expert evidence issues it contains. Most notably, Comeau raises important issues about the factual determination of history in courtrooms and the roles of judges and expert witnesses in that task. In Comeau, I think these issues could have been handled a lot better.

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