- David Milward
Remembering Charles Ferguson
Dr. Charles Ferguson is nothing short of a legend in the province of Manitoba. He was the founding director of the Child Protection Centre, housed within the Health Sciences Centre. His tenure with the Centre, that lasted more than two decades, saw him take on many cases involving child abuse as an expert witness for the Crown.
His career as an expert witness took a different direction starting in 1991, whereby he would frequently take on cases for the defence outside of Manitoba. His career on behalf of the prosecution in Manitoba reflected his life-long dedication and concern for the well-being of children. The new direction his career took reflects that he had the integrity to see the other side of the coin, the need to prevent injustices against those who may be accused of crimes against children but may ultimately be innocent.
That willingness to see the other side of the issues was destined to bring him on a collision course with a man then named Dr. Charles Smith. The injustices perpetuated by Smith are by now well known enough: wrongful convictions against the likes of Williams Mullins-Johnson, Tammy Marquart, Brenda Waudby and several others. A crucial issue with Smith had been his belief that his job was to tilt the evidence in favour of the prosecution, while he did not appreciate that his role was to report his autopsy findings objectively, whether those findings were in favour of the Crown or the defence. Dr. Ferguson was a crucial player in exposing Smith's harmful and incompetent work.
Charles Smith was certainly not the only expert whose work Dr. Ferguson took it upon himself to second guess. It was in fact the frequency with which Dr. Ferguson encountered questionable evidence offered by other expert witnesses that motivated Dr. Ferguson to reflect on the difficulties involved with courts relying on forensic science evidence. Those difficulties are often underappreciated, or even completely unknown, to those without specialist knowledge.
Dr. Ferguson was frequently a guest lecturer in my course on Evidence, which is a required course for second-year law students at Robson Hall. The students always enjoyed his lectures immensely, for they often ended up questioning their own previously held assumptions about forensic science evidence. After the last such lecture, a mere few months before he passed away, he approached me about helping him write a book about his experiences as an expert witness. It was a request that I assented to immediately. He provided me with his memoirs, and we worked out a common vision for the manuscript. And so the book, which is forthcoming in the spring of 2017, is the final product of our joint efforts.
One of the themes that we engage with is the intellectual divide between law and the sciences as disciplines that at once are so fundamentally different, and yet of necessity have to engage with each other with great frequency. During the lectures, I would ask the students a question along the lines of: "How many of you, when you were in undergrad, ended up in law school at least partly because when you were in undergrad, you didn't want to go anywhere near the hard sciences or math-heavy disciplines?" Easily 90% of the students would raise their hands each year. I would as well, as a matter of honesty. Such an occurrence, at least in the moment, may seem amusing and light-hearted. And yet that discomfort to step outside of one's own comfort zone can have grave consequences.
It is nothing short of tragicomic that Smith could have been prevented from inflicting any significant damage had the lawyers who faced him been able to do their jobs properly. And to do that, they needed at least a minimum degree of scientific literacy to be able to engage with Smith effectively. They would have been able to expose Smith's deficient qualifications had they understood what credentials were required to conduct a forensic autopsy. They would have been able to expose methodological flaws in Smith's work had they understood certain fundamental basics of forensic pathology. To do as much would have prevented Smith from even taking the stand in many of the cases where his flawed evidence was pivotal.
The need to merge legal advocacy skills with a certain level of scientific literacy also extends beyond the voire dire that determines whether an expert witness should be allowed to testify. A lawyer can better prepare ahead of time if he or she can identify crucial issues where the soundness of scientific evidence is not necessarily a given. And indeed there have been instances where a lawyer, simply for being on the receiving end of an expert report, any expert report, from the other side will subconsciously throw up a white flag when in fact there were shortcomings in the evidence that could have exploited. A lawyer can also better cross-examine an adverse expert witness when he or she understands the substantive content of the expert's opinion, and is therefore able to expose its weaknesses.
Ferguson encountered these issues in plenty of instances aside from Smith as well. In the background is what we perceive to be remaining deficiencies in the education available to lawyers, both during law school and after their calls to the bar, that can prepare them to take on cases involving forensic science. It is our unfortunate observation that these deficiencies remain in place to a significant degree, even years after the Goudge Inquiry released numerous recommendations addressed to legal education. Many law schools still do not offer any courses on forensic science and the law. Forensic science issues likewise have very little purchase in the continuing education seminars that are meant to contribute to lawyers' professional development.
Another issue that we explored was whether there were better ways to resolve forensic science cases that did not rely on adversarial courtroom trials. Dr. Ferguson was of the view that several of the cases he came across could have been resolved much earlier simply by vetting the initial findings with other experts, thereby uncovering errors that would go undiscovered until far too late. Certainly earlier avoidance of miscarriages of justice would be the key benefit. But there are other potential benefits as well, such as reducing resource expenditures on trials, and saving unnecessary stress for all concerned.
The release of the book is only a few months away. We hope that you will consider buying it. It will be an eye opener, whether or not you have previously have familiarity with the field. We also hope it spur more calls to action where the legal system has found it easier to do very little in the way of meaningful change.
You can purchase the book at:
The Honourable Stephen T. Goudge, Inquiry into Pediatric Forensic Pathology in Ontario. (Toronto: Attorney General of Ontario, 2008)