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Out of the Shadows

March 7, 2008 permalink

Harold Levy has sifted the megabytes of the Goudge Inquiry to find a gem — Katherine Gruspier suggests discontinuing the use of so-called child abuse experts. Her report suggests that experts need better training, though bias may be a bigger problem.

In Plato's Allegory of the Cave, prisoners cannot see actions, only the shadows cast by actors, giving them a distorted view of reality. In litigation over children, courts do not examine evidence, they see it only second-hand through the opinions of experts. These opinions are distorted by the twin effects of their level of expertise, and more important, bias. Bias is not corrected by making the expert's pay independent of his opinion. In an infamous American small-claims system, aggrieved parties bring their case before a Justice of the Peace. The Justice gets the same pay regardless of his decision, but knows that only plaintiffs bring him new cases. The initials JP are known as "Judgment for the Plaintiff". Experts in children's cases have the same motivation. Only supporting the crown, and opposing the family, will get them new business. If Gruspier's suggestions are followed, courts can eliminate bias and get back to looking at evidence instead of shadows.

While Goudge has focused primarily on criminal cases, the use of biased and incompetent experts is more pervasive, and damaging, in child protection cases.

Mr Levy's remarks are based on the paper PEDIATRIC FORENSIC PATHOLOGY AS FORENSIC SCIENCE: THE ROLE OF SCIENCE AND THE JUSTICE SYSTEM (pdf) by Dr. K.L. Gruspier, and we have a local copy.



Friday, March 7, 2008

Up-Date: Expert Evidence: Part One: Researcher For Goudge Inquiry Recommends Keeping "Child Abuse Experts" Out Of The Criminal Courts;

Buried in all of research studies commissioned by the Goudge Inquiry is a bold recommendation:

"Discontinue the use of “child abuse experts” in criminal trials and carefully assess their use in CAS (Children's Aid Society) hearings until such time that balanced training and educational programs for them can be constructed, or limit the use of numerous experts of this sort in a single trial."

Prof. Katherine Gruspier makes this recommendation in her paper: "Pediatric forensic pathology as forensic science: The role of science and the justice system";

This recommendation will not likely be welcomed by the legions of hospital SCAN-team (Suspected Child Abuse and Neglect) members across Canada who often testify against parents and caregivers - even though they are untrained in forensic science - because they have undertaken child abuse investigations while the child was still alive.

But the recommendation is a breath of fresh air;

Dr. Gruspier is Adjunct Professor of Forensic Science, Forensic Science Program, University of Toronto at Mississauga and a Consultant Forensic Anthropologist, Office of the Chief Coroner for Ontario.

She notes that, "Opinions expressed are those of the author and do not necessarily represent those of the Office of the Chief Coroner for Ontario or the Commission on Pediatric Forensic Pathology or the Commissioner".

"Untrained in forensics, child abuse experts are clearly advocates," Gruspier writes in the "Conclusions" section of her paper, which is published on the Goudge Inquiry Web-site;

"The courts allow these individuals to opine outside of their area of expertise to provide opinions on the cause of death, or the cause of trauma in a living child, and the Marquard remedy of limiting the weight of these opinions is of dubious effectiveness," she continues.

(The Supreme Court of Canada ruled in the Marqhard case that expert evidence need not be rejected in its entirety merely because the witness ventured an opinion beyond the area of expertise in which he or she is qualified. Instead, the remedy for the judge to instruct the jury to disregard the evidence);

"It is true that the most vulnerable in our society will always need a voice to speak for them, but the platform should not be the criminal courts.

If the cause of death of a child is undetermined by a forensic expert, then perhaps it truly is undetermined.

If the Crown can make a case for guilt on circumstantial evidence, then they should, but it should not rely upon overwhelming the trier of fact with numerous “experts” spouting unscientific interpretations.

In the past few decades, medical advances have allowed for the continuation of life in cases of children who, if born prematurely prior to this period, would have died. As yet, the consequences of these efforts at preservation of life in the premature infant are not truly understood.

Advances in medical imaging have allowed the radiologist to see things that have previously not been seen inside the human body, and for some reason they interpret these findings as suspicious rather than developmental.

Counsel should be, first, an officer of the court, but in these cases it appears that they are stacking the deck in order to win their case."

Gruspier notes in her paper that, "it is not uncommon for the courts to qualify persons associated with clinical child abuse teams as child abuse experts, although the field does not exist by way of examination and certification.

"These experts are often called in cases where a child did not survive, but they are equally as commonly utilized in child custody cases and cases where the child survived.

In these cases, there may be no forensic pathologist or forensically trained individual involved at all";

Gruspier is particularly concerned that, "In cases both where the child has survived and where it has not, we see this unique contribution of other “experts” to a conviction.

In no other types of forensic pathology cases do we see a troop of experts who are produced for the trial who have made a determination of the cause and manner of death based in part upon an interview of the suspect, usually prior to the death of the individual.

This is what happens when a team like the (Hospital for Sick Children) SCAN team is activated".

Gruspier acknowledges that "other medical experts" may be called to provide "ancillary studies" for forensic pathologist.

She stresses, however, that these experts, "will testify as to their specific findings, within their area of expertise, and will not normally provide the cause and manner of death in their reports or testimony."

This Blogster will be watching Commissioner Stephen Goudge's report carefully to see if he will bite the bullet on this well-justified recommendation.

SCAN-teams have contributed to wrongful prosecutions and miscarriages of justice within our criminal justice system - as has been demonstrated by several of the cases before the inquiry.

Justice Goudge can do something about it.


Posted by harold levy at 5:18 AM 0 comments

Source: Harold Levy's blog

Addendum: In his next post, Mr Levy posts a snippet of expert testimony by Anne Niec. Dr Niec, in a case in which Shelley Anne Kuzyk faced life in prison, testified with the level of wisdom and insight of the Cookie Monster.



Saturday, March 8, 2008

Up-Date: Expert Evidence Part Two: Researcher For Goudge Inquiry Recommends Keeping "Child Abuse Experts" Out Of The Criminal Courts;




A recent posting discussed Professor Katherine Gruspier's recommendation to remove "child abuse experts" from the criminal courts. (Up-Date: Expert Evidence: Part One);

The recommendation reads: "Discontinue the use of “child abuse experts” in criminal trials and carefully assess their use in CAS (Children's Aid Society) hearings until such time that balanced training and educational programs for them can be constructed, or limit the use of numerous experts of this sort in a single trial."

I thought about this recommendation when I was reading the transcript of Regina V. Kuzyk, which became the subject of a recent three part series on this blog under the heading "Dr. Smith for the defence" and came upon the evidence of Dr. Anne Niec who was qualified as "an expert in Paediatric Care and Child Abuse."

Dr. Niec would appear to be the kind of expert Prof. Gruspier has in mind because she is a member of a team at the McMaster University Medical Centre in Hamilton Ontario which plays an advocacy role - as is evident from it's name: "The Child Advocacy and Assessment Program."

Professor Gruspier questions the wisdom of allowing advocates to serve as experts in the criminal justice process.

Dr. Niec, a pediatrician, told Court that the program "addresses issues of child child maltreatment" by conducting "out-patient assessments."

Here is a portion of Dr. Niec's cross-examination by defence lawyer Roger Yachetti, which, to my mind illustrates why Prof. Gruspier's recommendation makes sense.

Cross-examination: Roger Yachetti;

Q: Dr. Niec. Can we just get one thing clearly out of the way at the outset? Did you find any evidence of sexual abuse of this child?

A: It's hard for me to answer that question, because in order for me to answer that question, I don't know what the forensic evidence showed.

Q: Let me tell you what it showed. Nothing;

A: That doesn't mean anything, because we know in the majority of cases of sexual abuse and if you look at the definition of sexual abuse, there is no evidence, and that is commonly seen in pre-pubertal kids, that you don't see evidence.

Q: So you didn't find any evidence of sexual abuse?

A: So, so, the bottom line is although, if the forensic evidence in the sense of the swabs were normal, all we can say is that even though you may have normal swabs, you can't rule out sexual abuse.

Q: Did you find any evidence of sexual abuse?

A: I didn't. I had concerning the physical examination...

Mr. Yachetti: Your Honour, could the witness be asked to answer the question?

His Honour: No, she will answer it in her own can say there is no sexual abuse. So, what I can say is that, you know, if all the evidence came back within normal limits, then we have a normal exam in the sense that there is nothing specific there for sexual abuse, but that doesn't mean that it couldn't be a possibility.

Q: Did you find any evidence of sexual abuse?

A: I would have to answer it the same way. I apologize it is not clear...

Q: Are you telling me that question is not capable of a yes or a no answer?

A: I am telling you exactly that because in order to make sexual abuse, it is not only looking at the physical evaluation, because in most instances the physical exam is non-contributory. What s most important is the history and what the child says, and unfortunately we don't have a history here and we can't interview the child...

(At this point in his cross-examination, Yachetti pointed out to Dr. Niec what were, in his view, clear errors, in the information she had received from other individuals through Tristin's chart);

Superior Court Justice David Crane told the jury that Niec's opinion, based on a physical examination, and a sexual assault kit - was that the injuries were caused by "acute inflicted trauma".

"Someone did this" is what I have noted her saying," Crane said.

Justice Crane also told the jurors that, "She had no interviews and she used the hospital chart as to prior medical treatment."

Shelley Anne Kuzyk faced life in prison as the murderer of her Godson if convicted at this trial.

However, Dr. Niec's evidence placed a tangible onus upon her to somehow establish to the satisfaction of the jury that she had not physically abused Tristin - even though there was no physical evidence of abuse.

This evidentiary burden - which does not exist for any other crime in the Criminal Code - flies in the face of the presumption of innocence which protects Shelley Anne Kuzyk and anyone else charged with a crime in Canada.

It is noteworthy that Dr. Michael Pollanen, Ontario's Chief Forensic Pathologist, has cautioned that pathologists should not use this "default diagnosis" approach in their expert evidence.

Dr. Pollanen discussed the danger of this non-evidence based approach to forensic pathology in a paper called, "Review of the pediatric pathology review reports: Ten systemic issues," prepared for the Goudge Inquiry.

"A default diagnosis is claiming that a diagnosis is substantiated because it cannot be excluded," wrote Pollanen.

"This gives rise to potentially dangerous diagnostic reasoning embodied by the proposition: "In the absence of evidence to the contrary the findings are indicative of non-accidental injury."

"This creates child abuse as a default position and puts the onus on others to seek contrary evidence."

This Blogster hopes that Commissioner Goudge takes Prof. Gruspier's important recommendation to heart and recommends that advocates - such as members of SCAN teams - be kept out of the criminal courts.

Harold Levy;;

Source: Harold Levy's blog