The Gazette 1995

GAZETTE

DECEMBER 1995

important to consider the following

issues:

1. Whether the document was

produced by a computer;

2. What degree of human error could

have affected the resulting

document;

3. What evidence exists to suggest that

the computer system was working

properly at the relevant time;

4. In any case where computers have

been involved in the production of

documents, it must be proven, quite

apart from the question of whether

the source of the information was

reliable, that the computer was

operating properly at the relevant

time, or at least that any

malfunction did not adversely affect

the documents in question;

5. What understanding of the

computer does the person have who

is offering testimony as to the

proper functioning of the computer;

and

6. Although the witness testifying

need not be an expert, especially in

the event that the evidence is given i

orally in court and thus subject to

cross-examination, neither should it

be easy to have evidence admitted

by virtue of producing a witness

whose poor qualification to testify

then only reflects on the weight

given to the evidence after

admission. The person's

qualifications should constitute a

hurdle to admissibility in the

first place.

Although focussed on the English

position as modified by PACE,

Nyssens suggestions could, with

profit, be adopted in relation to the

framework provided by the 1992 Act.

It is certainly true that the parameters

currently drawn for the reception of

this kind of evidence are insufficient.

The lack of clarity in this area is all the

more regrettable given the recent level

of appreciation and awareness of those

involved in the legal (and indeed the

scientific) world of the dangers of the

potential clash of the respective

cultures and the difficulties inherent in

the accommodation and analysis of

scientific evidence in the context of

adversarial structures.

320

In a recent research study carried out

for the Royal Commission on Criminal

Justice on the role of forensic science

evidence in criminal proceedings,

adjudging the ability of our legal

system to come to terms with new

worlds of knowledge, the respective

aspirations of lawyers and scientists

were identified:

"Both experts and lawyers regard

themselves as assisting the court in the

administration of justice, but experts

do not share lawyers' commitment to

an adversarial framework"

. As noted

in the report the adversarial trial is not

designed simply to facilitate the

communication of scientific knowledge

to the court. The conclusion of the

research study on the role of forensic

science evidence in criminal

proceedings serves as a timely and

cautionary reminder of what values and

rights are after all at stake here.

"The complexity of the process of

scientific evidence production . . . and

the consequent evaluative difficulties,

indicate the need to regard

all

scientific

evidence with caution. Although

science can have great utility in a

forensic context the risk of over-

reliance is obvious and attested to by

the recent miscarriage cases. Our

research suggests that the potential for

error resides in all cases in which

forensic science evidence is utilised.

Defence solicitors and triers of fact, in

particular, should be made aware of its

limitations."

6. Conclusion

What then is the the best defence of the

rules of evidence, so often and readily

relegated to archaic status in the face

of a rush to assimilate and adopt, in all

aspects of life that which makes things

go faster or what we think of as better?

The best defence is ultimately that

which addresses the question of the

suitability

of those goals of efficiency

or speed, for the process of

adjudication of legal disputes or the

resolution of innocence or guilt.

Perhaps these questions are simply

ones we are not any better at, despite

the march of time of the evolution of

scientific processes. Indeed as we have

seen, the hasty adoption of the latter in

the forensic realm results in

miscarriages of justice of a notorious

type. It may well be that a successful

defence of the traditional rudiments of

| evidence must still be mooted by

lawyers in the light of scientific

progress and machine dominated fields

| of information. Such a stance is taken

by McEvoy,

and is perhaps an

appropriate note to end on:

| Of course hostility to the hearsay rule

has other sources. It is not difficult to

produce examples of its operation that

are an affront to common sense. It may

be felt that a modern jury is capable of

giving hearsay proper weight. But the j

exclusion of evidence is a component

offair procedure, most obviously in the

\ case of "prejudicial" evidence. And

\ how can anyone, even a juror, know

how to properly weigh evidence

untested by cross-examination?

The voice of the advocate, when faced

with infomatics, may still make that

| point.

| *Caroline Fennell is a Statutory

I Lecturer in Law at UCC.

I References:

1. [1908] 2 KB 333 at 340.

2. 76 Cr App Rep 23.

3. Nyssens, Allison 'The Law of

Evidence: On line with the Computer

Age? (1993) 10

E.l.P.R.

360.

I 4. (1991)

Crim. L.R.

288.

5. (1991)

Crim. L.R.

288, 289.

6. (1991)

Crim. L.R.

1992.

7. (1991) Cr. App. R. 139.

8. (1993)

Crim. L.R.

48.

j 9. (1993)

Crim. L.R.

50.

10.

Cross on Evidence,

7th ed., Tapper.

(1990) at p. 560. (Butterworths).

: 11. (1993)

Crim. L.R.

862.

; 12. (1993)

Crim. L.R.

681.

| 13. (1986)

86 Cr. App.R. 267.

| 14.

Irish Times,

April 10, 1995.

; 15. Oxlee, G.,'Evidence from imagery'

(1993) New

Law Journal 9

15 (June 25,

1993).

16.

ibid,

@916.

I 17.

ibid,

@917.

j 18. [1990] I.L.R.M. 569.

19. Nyssens

Supra

fn. 14 at p.364, 365.

20. Research study No. 11, HMSO 1993 @

140.

| 21.

ibid, @

143.

22. McEvoy, Donal 'Police Documents as

Admissible Hearsay' (1993)

Crim. L.R.

480 @ 489.

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