Welcome to this new video. I retained here two grounds for the appeal. The first, the evidence was in law inadmissible, and the second, the expert on whom the Crown relied were able to present their evidence in a way which was too favorable to the prosecution case and they committed sometimes what is known as the prosecutor's fallacy. On the question of admissibility, the court stressed on the liberal approach to admissibility. In that, if proper opportunity is given to the defense to challenge the prosecution case, here print evidence would be admissible. On the question as to whether the expert misled the court when transposing the conditional as we have seen in [inaudible] Adams. If you remember, the case we presented in week four, the court ruled as follows. "In our judgment, there is no reason in this case to be critical of the way in which the evidence of the expert was adduced, and there is no substance in ground three, the transpose conditional, but the very strength of a Crown's expert evidence is what causes us concern." Later, their lordships wrote, "As we have observed, the jury was directed that they could convict on the evidence of Mr. [inaudible]. Having received fresh evidence, the Court of Appeal found the conviction to be unsafe. So, the court didn't declare that here print evidence was inadmissible, but they asked for an equality of harm between both prosecution and defense. Also the court was not receptive to the risk of transposing the conditional when we talk about other disciplines than DNA and DNA statistics. We would always maintain that logic should prevail and even if it's not an easily perceived mistake, not confusing elephant and four legs with four legs and being an elephant. In fact, concerning DNA, further analyses were conducted in this case. From the earprint on the window, a DNA swab led to a partial DNA profile not matching the DNA profile of Mark Dallagher. These new forensic findings led the prosecution to drop the charges against Dallagher and he was freed in January, 2004. Tasha, could you tell us more about this, please. Is the DNA evidence a proof of the innocence? So, is the non-matching DNA evidence, a proof of his innocence? Well, it is intuitively appealing to say if the DNA does not fit, you must acquit as was said by the defense lawyer, Johnnie Cochran in another very famous case in 1990, the OJ Simpson case. In the Dallagher case, the press was indeed quick to say, for example, one could read on the front page of The Times, "A DNA sample from the earprint proved that it could not have been Mr. Dallagher's ear." The headline in The Guardian was, "A DNA profile obtained from the earprint proved that it was not Dallagher's." In it's edition of January 23rd, in 2004, the same journal described the case as a, "Grotesque miscarriage of justice." Even the Law Commission of England and Wales in 2009, referred to that case saying, "However, at Dallagher's second trial in 2004, the prosecution had no choice, but to drop its case against him as DNA evidence taken from the latent print unequivocally established that it had been left by someone other than Dallagher." Oh, by the way, for those who are not familiar with the Law Commission, it is an independent body whose role is to keep the law of England and Wales under review and to recommend reform where needed. So, why is it not trivial to deduce from the DNA profile taken from the earprint and that did not match Dallagher, that the mark is not his. Simply because of two factors. It is not certain when you leave your ear on a window that you will also leave enough DNA to be detected. Research has shown that on 60 earmarks from three donors, only one single profile had been recovered from the donor. There was a high level of background none donor DNA recovered from the earprints. Secondly, windows are not DNA free and certainly at the time of the investigation in 1996, investigators and forensic scientists alike were not aware of the capabilities offered by this super sensitive DNA analysis that would be used in 2004. Antipollution procedures were at their infancy at that time. It means that extraneous DNA having no link with the offense may have been present on the window or even on the brush that was used to powder the mark. A study done on pressures used for revealing marked showed the following results. Secondary transfer of DNA has been demonstrated. The larger the brushed area such as for an earmark, the greater is the risk of pollution. Contact of the brush with body fluids such as blood or saliva makes secondary transfer highly likely. When we account for these two sources of uncertainties, we can show that the strength of evidence in favor of the defense is rather limited and will not be so compelling as suggested by the Law Commission. However, as we have seen previously with the Nelan case, it will still support defense proposition. The issue here is typical of the complexity of moving up the hierarchy of propositions. We can say that it is established that Dallagher is not the contributor of the DNA profile, but it cannot speak directly as to how the DNA got there. Because there are more than one mechanisms for DNA to be transferred or simply to be present on the window, the progression up the hierarchy of propositions requires careful attention and expert assistance. To conclude, because there are more than one mechanism for DNA to be transferred or simply be present on the window, the progression of the hierarchy of preposition requires careful attention and expert assistance. Thank you Tasha. To sum up this case, we have highlighted the following. First, we have discussed the elements that are necessary in order to identify a person from a trace. To identify a person as the source of a trace. So, to give a categorical opinion one needs not only to account for the probability of the results given the two propositions, but also to account for the probability of the propositions themselves. Let us recall that the probability of a proposition depends on other elements in the case and thus generally, only known by the court. A further element, but is decisive is that one needs to consider the consequences, positive and negative of taking or not the decision to identify. At court, it is for the judiciary to consider and to quantify these aspects. The second take home message is now that you have been exposed to these elements, you understand why identification was said to be outside the scope of the NFC guideline on the evaluative reporting. Indeed that conclusion goes well beyond the evaluation of the results. Categorical decisions such as identification, whether it is for earmarks, handwriting, DNA, firearm or any type of traces not only require to combine the value of a scientific result with the other element of a case, but also to consider the consequences of taking or not the decision to identify. Hence, identification is in the domain of the court. Based on these elements, one understands the position of the US Army and you can justify why experts should not be allowed to identify. Thank you for watching.
