In the wake of the disastrous errors uncovered during Ontario’s inquiry into pediatric forensic pathology, new and locally trained forensic pathologists are starting to fill the gaps in the system, according to Ontario’s chief forensic pathologist.
Canada has lagged “considerably” when it comes to recognizing forensic pathology as a discipline, said Michael Pollanen during a lecture organized by the Association in Defence of the Wrongly Convicted in Toronto on Wednesday that included a discussion on the reforms implemented since the 2008 inquiry conducted by Justice Stephen Goudge.
While practitioners in the area started emerging in some parts of the world as early as the 1960s, Canada didn’t have its first batch of forensic pathology trainees until 2008. Despite the delay, creating a system of forensic pathology training for doctors in Canada is “probably the most important step” the country has taken to advance this area of science, Pollanen noted, adding that at the end of June, Canada got 10 more forensic pathologists.
The comments come as the courts are putting a greater emphasis on scientifically founded opinions, according to Pollanen. “From a legal point of view, things become interesting when the expert report . . . is presented in court,” said Pollanen.
But when it comes to arguing their cases, it’s crucial for lawyers to separate evidence-based expert opinion from what Pollanen calls “dressed-up common sense.” To understand a forensic pathologist, lawyers have to understand some basic concepts of science, he added.
The telltale signs of evidence-based expert opinion don’t always validate the findings, but recognizing them ensures the evidence is coming from a scientific place, Pollanen noted.
According to Pollanen, there are a few aspects of science lawyers should know. The first is fact correspondence. The opinion an expert witness gives in court must correspond with empirical data, said Pollanen, who called this criteria extremely important.
“All good expert opinion must correspond with the fact,” he said. Lawyers should ask expeorts to list the facts they base their opinions on, he added. A response that includes a suspect’s confession, for example, is a red flag.
The second area relates to methodology. The expert arrives at an opinion only after observation and measurements conducted in a step-wise technique or methodology. This is what Pollanen calls “reductionism.” An autopsy is the best example of this concept, he said, noting that the process involves taking a complex question and breaking it down to distinct scientific steps.
The third area relates to principles. The opinion experts give should accord with the principles of their discipline, Pollanen noted.
“Any forensic pathologist’s opinion must accord with pathology and pathophysiology.”
The fourth aspect is reviewability. In order to be deemed scientific, an expert’s opinion must be rooted in an already-known understanding of the topic. The evidence experts give, Pollanen said, must correspond with peer-reviewed literature in their field.
Similarly, the experts’ opinion can’t be their opinion only. “It can’t exist only in the expert’s mind; it has to be able to exist in someone else’s mind,” said Pollanen.
Another expert should be able to look at photographs or other related documents and review the work of the expert witness in court, according to Pollanen.
The fifth area deals with alternate explanations. The scientific expert would give alternate explanations as a cause of death, Pollanen noted. For example, if someone died of lung cancer, the expert should explore possible causes such as smoking or, exposure to asbestos or a mining site. In order to establish one factor as a cause, the expert must exclude all others.
Finally, Pollanen discussed the expert’s duty to the court. Fairness and truth seeking are important aspects of the expert’s work, Pollanen noted. The expert’s highest duty must be to the court and not one of the any of the parties involved in a case.
Yet while addressing the factors Pollanen listed is an indication that scientific work went into formulating an expert’s opinion, he noted scientific knowledge evolves continually.
“One thing I’ve learned from speaking to lawyers and judges is that you don’t like that at all because there is a desire for finality,” he said.
