science in the service of justice

Why Forensic Scientists Must Work alongside Lawyers in the Establishment of a Criminal Cases Review Commission

Introduction

The criminal justice system rests on two pillars of expertise that too often operate in isolation: law and science. Lawyers are trained in procedure, precedent, and advocacy; scientists in methodology, evidence, and the limits of knowledge. A Criminal Cases Review Commission (CCRC), a body charged with identifying and remedying wrongful convictions sits precisely at the intersection of these two domains. Yet in many jurisdictions, such commissions are conceived almost exclusively through a legal lens, with forensic scientists consulted only after the institutional framework has already been set. This approach is fundamentally flawed, and its consequences are serious.

Justice without science is blind not in the impartial sense, but in the dangerous sense, it is unable to see the evidence upon which its most consequential decisions rest.

The Case for Forensic Integration

The empirical case is compelling. Globally, the Innocence Project has found that flawed forensic science contributed to approximately half of all DNA-based exonerations.[1] In Australia, research estimates that figure at 31% of wrongful convictions[2], a sobering indictment of a system that has too often admitted forensic evidence without adequately scrutinising its reliability.

Yet it would be a mistake to cast DNA evidence as the antidote to forensic failure rather than a potential source of it. In the case of Farah Jama, a young Somali-Australian man convicted of rape in Victoria in 2008 illustrates why DNA is not the panacea. There was no independent evidence that an offence had even occurred, no corroborating witness testimony, and nothing to place Mr Jama at the scene beyond a DNA match. The jury's acceptance of that match as conclusive proof of an offence perpetrated by Mr Jama demonstrates how readily DNA evidence is accepted. It was later established that DNA matching Mr Jama had been transferred to the complainant's sample at the medical centre where the sample collection occurred. A catastrophic failure of process that a legal system with an unwavering acceptance of DNA result was able to overlook the lack of any other supporting evidence in the matter. Mr Jama spent fifteen months in prison for a crime that almost certainly never happened. [3][4]

Australia has a notable history in relation to mis-carriages of justice resulting from unreliable forensic evidence. Lindy Chamberlain was convicted in 1982 on forensic evidence later found to be deeply unreliable; following a number of Inquiries, a Royal Commission ultimately subjected the evidence to scrutiny it had never received at trial, and the Lindy’s conviction was overturned.[5] Edward Splatt, convicted of murder in South Australia in 1978 on the basis of flawed forensic analysis, spent more than six years in prison before a Royal Commission found the scientific evidence against him to be fundamentally unsound, and his was conviction was overturned in 1984.[6]

Henry Keogh's case is among the most striking. Convicted in 1995, his conviction rested on evidence from South Australia's Chief Forensic Pathologist, Dr Colin Manock, a man who, it later emerged, had no formal forensic pathology qualification. Re-examination by independent pathologists found no support for his conclusions. Keogh spent nearly two decades in prison before new legislation enabled a further appeal and his conviction was overturned in 2014. Manock's evidence had driven prosecutions for decades and the legal system failed to interrogate it. [7] It would be an interesting study to determine why defence counsel does not routinely scrutinise forensic evidence in criminal matters.

The case of Kathleen Folbigg, convicted in 2003 of murdering three of her infant children stands as a landmark at the intersection of evolving science and wrongful conviction. The prosecution relied on the discredited proposition that multiple unexplained infant deaths in a family are presumptively the result of homicide. It was advances in genetic science and the identification of rare mutations that could explain natural causes of death that ultimately secured her pardon in June 2023 and the formal quashing of her convictions in December 2023.[8]

Critically, science evolves. Hair microscopy, bite mark analysis, and assumptions about the statistical improbability of multiple infant deaths in a single family have all been subject to significant scientific revision. A lawyer alone is poorly positioned to identify these shifts; a forensic scientist(s) embedded within a review body from the outset is not a luxury they would perform an essential role in assisting these reviews of evidence.[9] [10]

The experience of existing bodies supports this argument. The UK CCRC has been criticised for an excessively legalistic approach that has left worthy cases, particularly those involving contested forensic science without rectification. Conviction Integrity Units in the United States that employ forensic scientists have demonstrably outperformed those that do not. Australia, lacking a national CCRC, has instead relied on ad hoc Royal Commissions and the intervention of scientific institutions to achieve what an appropriately appointed review body should provide as a matter of course.[11] [12]  [13] [14] [15]

When a Commission is established, its mandate, evidentiary standards, and case-selection criteria must be defined. What constitutes 'fresh' evidence when a forensic methodology has since been discredited? These questions demand forensic expertise at the drafting stage. Forensic scientists must be embedded within investigative staff as full participants not as consultants to call upon when it is seemed required.

Conclusion

The establishment of a Criminal Cases Review Commission is a significant commitment. It is a recognition that convictions can go wrong and that the Nation or State has an obligation to remedy those failures. To fulfil that commitment, a Commission must be equipped to grapple with the full range of reasons why justice miscarries. Forensic science is among the most significant of those reasons, it is also among the most powerful remedies available.

Australia's record makes the case with particular force. From Lindy Chamberlain to Kathleen Folbigg, the pattern is consistent: convictions secured on forensic evidence later found to be unreliable, followed by years of procedural obstruction before science prevailed. Each case required extraordinary effort including Royal Commissions, petitions from over 100 eminent scientists, new legislation to achieve what a well-designed, forensically competent review body should accomplish through ordinary process.[16]

Forensic scientists and lawyers bring complementary skills that are, individually, insufficient and, together, formidable. Lawyers understand procedure, precedent, and how appellate courts weigh new material; scientists understand how evidence is generated, how methodologies are validated, and how knowledge evolves. A Commission that harnesses both perspectives will be better equipped to identify injustice and more credible in its conclusions. Forensic scientists must be founding partners in any CCRC, shaping its legislation, staffing its investigations and informing its standards.

This article is intended to contribute to ongoing policy discussion regarding the design and establishment of criminal case review bodies. It draws on comparative analysis of existing review commissions, empirical research on wrongful convictions, and principles of forensic scientific practice. The views expressed are those of the author and do not represent the position of any institution. Article references below

Authored by Jae Gerhard of Independent Forensic Services

Article References

[1] Innocence Project. Mis-application of Forensic Science. New York: Innocence Project. Retrieved from https://innocenceproject.org

[2] Rachel Dioso-Villa, (2015) A Repository of Wrongful Convictions in Australia: First Steps Towards Estimating Prevalence and Causal Contributing Factors, Flinders Law Journal 17(2), 163 – 202 at 182.

[3] R v Jama [2009] VSCA 1

[4] Vincent, F. Hon. (2011) The power of expert evidence: a cautionary tale, Pathology (2011) 43(1) S26-S28

[5] Cavanagh, R. (2021) The Shameful Tale of What Happened to Lindy Chamberlain. Retrieved from https://www.injustice.law/articles/the-shameful-tale-of-what-happened-to-lindy-chamberlain/

[6] Spellman, B. (1984). Royal Commission on the Prosecution of Edward Charles Splatt: Report. Adelaide: South Australian Government.

[7] Bova, R., & Edmond, G. (2018). Just following orders? Expert evidence and institutional responsibility in the Keogh case. Adelaide Law Review, 39(1), 33–68.

[8] Folbigg v R [2023] NSWCCA 329.

[9] Saks, M. J., & Koehler, J. J. (2005). The coming paradigm shift in forensic identification science. Science, 309(5736), 892–895.

[10] National Research Council. (2009). Strengthening forensic science in the United States: A path forward. Washington, DC: National Academies Press.

[11] Australian Academy of Science. (2021). Statement on the Folbigg case. Canberra: Australian Academy of Science. Retrieved from https://www.science.org.au

[12] Weathered, L. (2003). Does Australia need a specific mechanism to review convictions based on fresh evidence? Melbourne University Law Review, 27(1), 199–244.

[13] Wheatley, J. (2014). Conviction review in the United States: The role of innocence commissions and conviction integrity units. Boston University Public Interest Law Journal, 23(2), 221–258.

[14] Nobles, R., & Schiff, D. (2001). The criminal cases review commission: Reporting success? Modern Law Review, 64(2), 280–299.

[15] Criminal Appeal Act 1995 (UK) c 35.

[16] Garrett, B. L. (2011). Convicting the innocent: Where criminal prosecutions go wrong. Cambridge, MA: Harvard University Press.