Using forensic evidence in court - three major challenges and their solutions

The process surrounding the provision of expert forensic evidence in court can be complex with multiple hurdles for prosecution and defence teams to clear. In this article, we unpick three of the major challenges with commissioning forensic experts and set out the solutions.

Problem 1 - the legal aid challenge

Defence teams experience two main problems when it comes to legal aid:

1. The Legal Aid Agency's three-quote system for forensic expertise to be obtained - with the cheapest quote typically selected. This can impact the quality of the forensic expertise provided and make it difficult for defendants to access the evidence needed to support their case.
2. Defence teams must justify why forensic testing is necessary before quotes are accepted - this can be problematic because sometimes tests are needed to establish whether there are grounds for forensic testing, creating a chicken and egg situation.

Solution 1 - secure forensic expertise backed up by advanced legal aid knowledge

The key to unlocking this scenario is ensuring the solicitor has support from experts early in the process. This will help justify why the prosecution's forensic science evidence needs to be challenged. It can be helpful to work with a forensic science company with significant in-house expertise as well as a large network of expert witnesses to help you do this.

"At Forensic Access, we have an excellent relationship with our network of experts," says Phil Avenell, Group Science Director. "They're often willing to discuss the case with the defence team to help them define a clear strategy and recommend the types of testing required. This helps defence teams create their funding case."

Forensic experts can also add value when it comes to advising on the types of testing needed by:

1. Looking at the tests carried out by the prosecution.
2. Exploring the tests and their significance in the context of the information provided.
3. Deciding if further forensic work would be of value. 
4. Guiding solicitors or barristers to consider other types of useful forensic review. 

This approach ensures Forensic Access always provides a thorough, bespoke quote with compelling information about why the work should be carried out in a particular way. Helping defence teams submit good value quotes that cover the cost of the right expert, answering the right questions. "This ensures the forensic work is carried out once because it's done right," says Phil. "Which saves time and money and results in high quality expert reports relevant to the case."

Problem 2 - lawyers and judges make inconsistent judgements or use evidence inconsistently

A wide variety of forensic evidence can be provided in criminal cases, requiring solicitors, barristers and judges to have a certain level of scientific understanding. Including knowledge of complex scientific methodologies and their limitations. However, with a lack of clear support on how to interpret evidence evaluatively, the courts' interpretation of experts' results can sometimes be subjective.

Solution 2 - expert reports with additional notes that make the complex clear

Gaining access to forensic experts supported by a casework team ensures you get clear, plain English reports. "At Forensic Access, our casework team reads all the reports our forensic experts write," explains Deborah Rushton, the casework team's manager. "They're exposed to so many cases they can review experts' complex scientific reports and highlight anything that needs to be changed. Ensuring they're understandable for legal teams and in court."  

The experts producing these reports are also surrounded by other specialists who have worked in the legal system and presented evidence in court. "This gives solicitors access to more than our scientists - you get a wider network that uses the latest techniques and can peer review reports and check calculations. Resulting in robust, in-depth reports that are accessible to lay people."

Ensuring this degree of clarity also involves making certain that where evidence is subjective this is clear. All Forensic Access reports include technical notes relevant to the testing referenced in the report. For example, if Phadebas testing has been carried out on saliva, the report will include notes about what the test is, how it works and factors that can affect the interpretation. This helps the court review the results in the context of the case. Supporting the team's legal strategy and boosting the chances of success.

Problem 3 - providing digital evidence takes enormous human power

The prevalence of digital evidence means almost every case will have digital forensic evidence. With privacy issues, increased device security and large storage limits - which present huge amounts of data for review - digital forensic evidence presents significant hurdles for prosecutors and defenders to overcome. 

Solution 3 - narrow down and gain access only to what you need with digital expertise

Forensic Access has a digital forensic investigation unit staffed by specialist digital forensic investigators as well as a network of digital forensic expert witnesses. Enabling prosecution or defence teams to be supported by a practised expert who's up to date with the latest insights and techniques. 

This level of knowledge ensures privacy issues can be avoided and the latest device security measures overcome. It also reduces the time it takes to gather the necessary information, without compromising quality.

Another benefit of working with digital experts is the way they narrow down the types of digital information needed to support the case. They know exactly what to ask for, reducing the workload without risking the loss of relevant evidence. 

Securing and providing forensic evidence needn't be a trial if you work with an established forensic science provider. Forensic Access helps hundreds of prosecution and defence teams each year by supporting them through every stage of the forensic evidence provision process. From case strategy and quoting to clear reports from a broad range of specialisms, your legal team will get the high quality support and expertise to help you win your case.

Get in touch with our team to find out how we can help on 01235 774870 or at science@forensic-access.co.uk.