Last month we were discussing expert evidence and its dangers. Before we see the expert’s role in a murder case, we need to understand the concerns for this type of evidence.

Experts, if qualified, are the few witnesses allowed to express opinions on matters beyond the knowledge of the ordinary citizen.

Opinions on mental competency, cause of death, accidents and child abuse are examples. The average witness can opine on
simpler matters of everyday experience like speed, anger, and identity.

Yes! Identity is an opinion made from interpreting a combination of distinct observations such as hair, colour, characteristics like scars and configuration of the facial features. You need to explain why it’s the same person. Identity is also the largest
cause of wrongful convictions. Opinions on intoxication are border line where the average citizen’s knowledge and the expert’s ability can both express some opinion regarding the effect.

Courts have always regarded expert evidence with caution, recognizing that a jury may place undue weight on it. The expert must establish their field of study is recognized by
showing an understanding of the field beyond the ordinary person: membership and standards in a professional organization, recognized academic qualifications, research or
experience in the field and such.

The expert then has to objectively set out the facts, leading to their opinion, both pro and con. Objectivity is the foundation of science. It’s important to offset “confirmation bias” –
where your belief determines how you filter and view the facts.

Lastly, they must set out the theory they are applying to their facts and why. That theory must be widely accepted by the
field , tested and verified, not one held by a few contrary. Their duty is to the court. The court is gate keeper and not a peer review panel to decide which is the best science. The court must avoid dealing with ‘dueling theories’, that’s for the scientists.

Of course, their bias can be questioned such as who is paying their fees. If their assumed facts or the expert’s interpretation of them aren’t proven or accepted by the jury, they can reject
the opinion.

In our case, the issue was with the first girlfriend, denying knowledge about the murder she phones the police after a year. We had no idea she was there. Her evidence fit the facts but
still we questioned her motive, jealousy or honesty. We had a circumstantial case, a recent insurance policy and the accused’s lies to the police. We were concerned the trial would be
about her clouding the real issue, the murder.

We also had the duty of presenting all reliable evidence. What was her explanation? Was it trustworthy? Was she an accomplice? We felt it morally wrong for a Crown Attorney to call any witness we doubted.

Also, without moralizing, it is important to re-enforce your case from attacks that she recently fabricated her evidence.

It is always a delicate area for a Crown to questions its key witness’s motive. When the Crown questions their testimony or asks for an explanation they feel you are against them and they
lose trust in you. It was my responsibility to ensure respect and confidence in witnesses, it is also my responsibility to avoid wrongful convictions.

It becomes even more difficult when the key witness is a complainant but that‘s another story for another time.
We retained a psychiatrist. We needed to know why she came to us so late? Was it to seek retribution, or a legitimate inability to live with the event?

The psychiatrist’s evidence would not be available for trial unless the defense suggested she had recently made up a story; otherwise believability is solely a decision for the Jury but it would fulfill our duties. The murder story continues next month.

Judge Lloyd Budzinski retired after 28 years and was a former Crown Attorney, Defence Counsel and Ontario’s Assistant Deputy Minister of Criminal Law.
He was Chief Prosecutor in the high-profile trial of former RCMP officer Patrick Michael Kelly, who was found guilty of murder for throwing his wife from
the 17th floor balcony of their Palace Pier condo in March 1981.