Faculty of law blogs / UNIVERSITY OF OXFORD

Controversies in Admitting Academic Evidence in Criminal Trials

In the third and final Academic Skills session, the MSc in Criminology and Criminal Justice students attended a talk by Jessie Smith, a dual-qualified barrister at Doughty Street Chambers, London. Jessie is pursuing a PhD in terrorist sentencing and specialises in criminal defence in terrorism-related cases, combining her passion for politics and criminal law. She outlined the relevance of academic research in three areas of law, focusing the talk on the final area: law reform, the interpretation of substantive criminal law, and the role of expert evidence in trials.

Author(s)

Sophia Kjeldbjerg

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3 Minutes

Including expert academic evidence in trials is controversial and fraught with procedural, admissibility, and ethical issues. While courts are accustomed to admitting medical evidence, it can be contentious when juries prefer one side's expert over the other, despite their supposed independence. This concern extends to social scientific research, where barristers and the courts have less experience. Nonetheless, when social science research has the potential to be used in trials, barristers need to understand academic methodologies and evaluate sources to determine whether an academic’s work can be considered sufficiently authoritative.

Once an expert’s credentials are established, they can use various sources, and opposing sides must present counter-experts and challenge the methods and sources employed. Social scientific research faces rigorous scrutiny regarding admissibility. Some argue that each source that an expert uses should be deemed credible to avoid admitting hearsay evidence. Others contend that the expert's training enables them to assess the validity of their sources, presenting a balanced, critical evaluation that should be admissible in court.

The R v Ahmed case exemplifies this conflict. Professor Michael Clarke, an historian from King's College London, was the prosecution's expert witness on the nature, structure, command, and membership of the terrorist organisation ‘Al-Qaeda’. Despite his draft work not being rigorous by the standards of the discipline of history, it was deemed admissible. The draft included sources such as BBC articles and undisclosed MI6 conversations, which would be inadmissible in court on their own. This raises questions about whether such a compilation of inadmissible evidence could be considered admissible expertise due to the professor's credentials. There is also the risk that an expert and their work is discredited after a trial’s conclusion. This raises issues of procedural fairness, as the Court of Appeal is reluctant to order re-trials.

In a jury system, when an expert testifies, all irrelevant evidence should have been discredited, leaving only admissible evidence for consideration. However, there are inherent limitations in a lay jury's ability to interpret expert evidence from unfamiliar fields. Juries may also react unfavourably upon learning that an expert is paid a fee, but it is up to each side to challenge their opponent's expert's independence. Experts are in principle independent, and the same one can be used by either the prosecution or the defence in different cases.

The reliance on social scientists as experts depends on the nature of the case. Their assertions can underpin life sentences, so proper scrutiny through cross-examination is crucial. As such, there is a limited pool of experts, often from think tanks, as they must be able to withstand scrutiny during cross-examination. Procedural rules aim to create a balanced view by, for instance, employing "hot tubbing" in Australia, where experts discuss matters of agreement and disagreement among themselves, with the latter subject to cross-examination. Barristers must familiarise themselves with the expert's knowledge, which can be challenging within limited, unpaid time.

Depending on the case, academic experts can indirectly influence sentencing outcomes. In one instance, a woman was convicted of informal membership in the Islamic State based on the expert's assertion that a single factor sufficed as confirmation of this membership. Experts can establish central issues, such as determining whether an organisation is terrorist-affiliated. However, they must be cautious not to commit the very crimes they are testifying about, as exemplified in R v James, where an expert immersed himself deeper in a Syrian Kurd training camp than the defendants, leading to acquittals when the expert was not convicted.

In terrorism cases, much UK legislation revolves around reasonable suspicion, raising questions about whose suspicion matters: the police officer's or the expert's? Conflicting interpretations between experts and law enforcement on the same side further complicate matters. In modern slavery cases in the UK, experts cannot opine on the ultimate issue of whether someone is trafficked. It has become more difficult to prove victim status, with trials potentially commencing without the National Referral Mechanism (NRM) procedure, which is key to victim identification. Additionally, Home Office determinations of victim status are considered inadmissible, as civil servants' opinions are deemed ‘lay’ rather than expert.

In modern slavery and terrorism cases, a power imbalance exists, with the defence side typically less well equipped and resourced than the prosecution, limiting their ability to scrutinise and bring in rigorous experts. The defendant's fee is often low compared to the Crown's resources for the prosecution. This dynamic shifts in other cases, like financial white-collar crimes. While resources should theoretically be equal, system-wide deficiencies impair the defence's preparation, heightening the stakes of selecting and finding an effective expert.

Expert evidence operates within a flawed system and is unable to question that system. This includes challenging the merits of specific legislation or the purpose of deterrent-based punishment, which is typical of academic research on criminal justice systems. This academic evidence more typically applies to law reform, such as reforms about directions given to the jury in domestic violence and sex offence cases. This evidence has challenged the boundaries of what knowledge is considered part of the jury’s knowledge, which prompted problematic trends of victim-blaming and socially ingrained misunderstandings of consent. However, in modern slavery and terrorism cases, academic evidence is unlikely at the moment to challenge procedures in the trial itself.

The growing centrality of academic evidence from the social sciences in trials affirms the importance of conducting research with practical impact in mind, so as not to write in an academic vacuum.

How to cite this blog post (Harvard style):

S. Kjeldbjerg. (2024) Controversies in Admitting Academic Evidence in Criminal Trials. Available at:https://blogs.law.ox.ac.uk/centre-criminology-blog/blog-post/2024/07/controversies-admitting-academic-evidence-criminal-trials. Accessed on: 17/07/2024

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