The Cool Crucible: Forensic Science and the Frailty of the Criminal Trial

Abstract

Recent developments overseas and in Australia have thrown into question the assumption that the incriminating expert opinion evidence (ie forensic science and forensic medicine) relied on, routinely, in criminal trials is epistemologically robust. At the same time, scepticism about the efficacy of traditional safeguards has been rendered more acute when considering the capacity of the criminal trial to effectively manage incriminating expert evidence in a manner that genuinely reflects commitments to a fair trial. Against this background, this article provides a succinct overview of some of the current concerns and limitations both of traditional adversarial safeguards and more contemporary tailored attempts to manage incriminating forensic science. Taking into account that much incriminating expert evidence is either unreliable or of unknown reliability, this article suggests that courts need to be willing to adopt a more exclusionary orientation towards incriminating forensic science and medicine evidence, and develop new mechanisms, responsive to empirical research, to manage such evidence during criminal proceedings.