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Disclosure beyond CFS report can boost defence

|Written By Kirsten McMahon
When dealing with a criminal case involving DNA evidence, getting disclosure beyond the Centre of Forensic Science''s report is a crucial start to an effective courtroom strategy.
Leo Adler suggests defence counsel request every piece of paperwork they can get their hands on from the CFS.
"You take the direction firstly from the disclosure," criminal lawyer Leo Adler told the crowd at the 7th annual Canadian symposium on DNA forensic evidence in Toronto late last month. 

"You don't necessarily want to speak to your client too much about the case," he jokes, "but essentially the issue is what is the importance of the DNA? If it's a sex assault where the issue is consent, the DNA is really irrelevant.

"On the other hand there are cases where DNA is found on location and you have to make a decision: are you are going to fight it, or are you going to simply deny it, or are you going to admit it?"

The best way to determine the course of action is to examine any and all disclosure from the CFS with an expert to understand the technical issues involved.

"All we get is paperwork, at the best, to try to recreate how things were done," said Adler. "You are going to need someone who's got the critical eye that we don't have in terms of our knowledge. You've got to get an expert in order to do that."

Co-chairman of the symposium, David Rose, mentioned that he often has to pry to get raw lab notes and further disclosure of that nature, and asked why this information isn't just automatically sent out in the first place if a transparent system is the end goal.

Dr. Kimberley Johnston, policy and program analyst of the CFS, said it basically boils down to not having the resources to send out such a high volume of paperwork. She added that of the 9,000 or so cases the CFS dealt with last year, there were only 35 requests for disclosure from lawyers.

"We just don't have lawyers asking for this material," she says. "When they ask, we provide it readily but they just don't ask."

This statistic astounded Adler, who said it's very disappointing the number of requests for disclosure is so low.
"I'm not sure it's a positive reflection of our side of the profession. DNA is very, very hard. There's no question it's a tough case but you can and you have to get the disclosure," he said.

"You have to get the protocol, you have to get the raw data, you have to get the notes, the chain of continuity, the telephone conversations, all of which are all there."

Once you have that information it's easier to recreate what happened at the lab and if there are any possible issues of errors or contamination.

"Believe it or not, the CFS does makes errors," Adler says. "The question is what is a definition of an error and that's changed over the years. You may want to take them on for that."

However, Dr. Elizabeth Johnson, a forensic science consultant based in California, explained that you can't always tell from the lab notes whether something was done correctly or not.

Part of her job involves being present during DNA testing and she noted that she has witnessed a lab technician doing one thing but unintentionally writing down something else in his or her notes.

"You just can't tell unless you are able to retest or someone was in the lab," she said.

Crown attorney Paul K. Tait said this is why preserving evidence and samples is very important.

"Give direction to police to preserve all the exhibits if by any chance they're returned," he said. "One key reason may be for future testing, if a request comes from defence counsel to have their own expert test it.
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