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Judge cautions against TV-type evidence

|Written By By Shannon Kari

The Ontario Court of Appeal has again limited the use of expert evidence of crime scene "staging" in overturning the first-degree murder conviction of a Toronto-area man accused of killing his wife.The court noted the popularity of television shows such as CSI and warned of the danger of juries being unduly influenced by the evidence of criminal forensic experts and profilers, as it ordered a new trial for Ivan Klymchuk.

Klymchuk was convicted by a jury in December 2000 of murdering his wife two years earlier in a drive shed that she used to train their dogs, outside their rural home near Bolton, Ont.. A bloodied axe was found on the floor of the shed. There were no signs of sexual assault and none of the victim's jewellery had been taken.

There was no forensic evidence to implicate Klymchuk, who had been having an affair when his wife died. The defence argued that the crime scene was consistent with a burglar entering the shed and killing the victim.

FBI agent Allan Brantley, who is based at the bureau's headquarters in Washington, D.C., testified for the Crown as an expert in criminal investigation analysis. He testified about five general factors, including statistics of burglaries in the area, and concluded that the crime scene in the shed had been staged to make it look like a break-in.

The Court of Appeal has recently stressed in R v. Ranger and R v. Clark that expert evidence of crime scene analysis must be limited to the "what" question and cannot be extended to the "why" or "who" question for a jury to determine.

Alan Gold, who represented Klymchuk in his appeal, argued that the "what" question should also be excluded because the Crown was seeking to use an expert with impressive credentials to elevate "possible inferences to the level of scientific truths."

The Court of Appeal said that the "what" line of questioning is still permissible, but in this case the expert evidence "did seep into the prohibited area of criminal profiling identified in Ranger and Clark."

"Agent Brantley's opinions as to the killer's motive and prior relationship with the victim were not founded on any scientific process of inquiry, but on his own experience. Educated guesses can play a valuable role in the investigations of crime by directing the police to fruitful areas of investigation. They cannot, however, be admitted as evidence under the guise of expert opinion," wrote Justice David Doherty, with Justices Michael Moldaver and Robert Armstrong concurring.

The court noted that the conclusions of the FBI agent could not be subjected to the "kind of rigorous scientific scrutiny and review that is a prerequisite to the admissibility of this kind of opinion evidence."

Gold said the Court of Appeal has "made it clear that this evidence has been overused. They cut it back drastically. I would not be surprised if it disappears. I think these people are now out of a job in Canadian courts."

He suggested FBI crime scene profilers should focus on being consultants to fictional television dramas.

While the Klymchuk trial took place before the wave of shows such as CSI, Gold said there is a danger when these witnesses testify today because "these programs are such a part of our contemporary popular culture."

The argument was accepted by the Court of Appeal in its decision. Doherty noted that "current television programming is replete with fictional dramas in which all manners of crime are solved through the industry, resourcefulness, and expertise of various criminal forensic experts."

He added that the current program Criminal Minds, which is broadcast on CBS, includes experts from "the very section of the FBI in which Agent Brantley works.

"Current popular culture ascribes to criminalists like Agent Brantley a level of knowledge and objectivity that all but demands acceptance of their opinions," cautioned Doherty.

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