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142 MANITOBA LAW JOURNAL |VOLUME 35 NUMBER 1
Following from this example, it might be suggested that DNA evidence did
not provide a good test of the ability of Canadian courts to evaluate the
complicated issues raised by DNA-like forms of forensic testimony. This does not
mean that the DNA cases are without interest, however. It merely suggests that
wariness is appropriate before assuming that, because the DNA problem is
“solved”, the legal system is adequately prepared for the flood of complicated
statistical evidence that a full implementation of the NAS report would generate.
The subpopulation cases demonstrate how a scientific concern over adequate data
became one about the legal uses of those data, and those concerns were different
from those of scientists. Translating scientific techniques in a legal context
changes them. Likewise, when DNA-type approaches are applied to traditional
forensics, the results will look like neither DNA nor traditional forensics. What
might be taken from the DNA cases is the pattern that these cases followed and at
the kind of problems that were raised by them. In doing so, members of both the
forensic and legal communities could be prepared for the inevitable questions
that will be raised by this kind of testimony.
Referring back to the four observations about the Canadian DNA cases, one
can imagine how courts might question other forensic techniques when presented
in a similar manner. In the case of DNA evidence, there were questions about the
admissibility of the results of a new technique. This would not be the case if, for
example, fingerprinting was to be questioned. It seems likely that courts will
continue to admit conventional forensic results up and until there is a significant
scientific controversy over the reliability of those results. Thus, as was the case
with DNA evidence, some sort of scientific controversy will emerge before
admissibility questions are raised in the courtroom.
From the DNA cases, one notes that there is a period of scientific controversy
during which courts can reach decisions that will be seen ultimately to be
scientifically unfounded. Appropriate use of scientific actors, in the case of DNA,
population geneticists, can be helpful in making sure that decisions taken during
the controversy are reasonable, but the only solution is the quick resolution of the
scientific controversy. With DNA evidence, the DNA forensic community was
responsive to the questions raised in the courts, leading to a fairly speedy
resolution of the subpopulation controversy. In the case of traditional forensic
techniques, it may be possible to ensure that the scientific controversies that
develop are resolved as quickly as possible.
The problem that must be resolved by the forensic scientists is not theirs
alone but rather one that will ultimately be decided by legal actors. This means
that to the extent a dialogue develops among those working on new ways of doing
conventional forensics, it is a dialogue that must include the law in a very
fundamental way. If Canadian forensics is to be reshaped, then the law will have a
big role to play in that reshaping.