Posts Tagged ‘expert evidence’

FLF members who were lucky enough to attend this year’s round table with Dr. Emma Cunliffe entitled “What Feminism can Teach us About Expert Evidence” (read Dayna’s excellent summary here: https://feministlegalforum.wordpress.com/2011/03/30/what-feminism-can-teach-us-about-expert-evidence-roundtable-summary/) may recall that the discussion touched on mothers wrongfully accused of murdering their children by ‘rogue’ experts. One such rogue is Ontario’s Charles Smith. Once well respected in the field of forensic child pathology, he has since been the subject of a public inquiry into his autopsies. As a result of the inquiry, a serious doubt was raised on at least 13 convictions which had been premised on his expert testimony.

Though never convicted, Tammy Marquardt spent fourteen years in prison following the death of her two year old son. It was Charles Smith who performed the autopsy. During her incarceration, her two other children were given up for adoption.

This week, the Crown decided to drop the charges against Marquardt, partly due to the flawed evidence of Smith. CBC Radio’s As It Happens featured an excerpt of Marquardt’s comments following her release. Though brief, they provide chilling insight into the experience of a mother wrongfully accused of murdering her child. The clip can be heard here, at approximately minute 10:40.


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On Thursday, March 24th, Dr. Emma Cunliffe from UBC’s Faculty of Law led us in a fascinating discussion around evidence law and how feminism can help us re-conceptualize the law of evidence. The discussion starting with thought-provoking questions around the Rhodes case (more widely known as the “Justice Dewar Decision”): what knowledge gets into the justice system? How? And once its in, how does it get negotiated?

While evidence can be simply understood as a system of law with a set of rules, Dr. Cunliffe challenged us to think of evidence as proof, or more specifically, the logic, rationality and sources of information judges use in coming to their decisions. Too often, law students take findings of fact as just that – fact. But where does this information come from? Who does it exclude? And what does a court do with it? These questions are sometimes neglected as we learn the rules and tests that make up the substantive learning of evidence law, but they are important questions to interrogate as we consider how law is made, and on what terms.

Dr. Cunliffe noted that feminism has quite famously influenced rules of evidence, with one example being the Lavallee case. But as our discussion showed, feminism can also help us understand knowledge and the politics of knowledge. An example here is the work that feminists have done in Canada to enlarge the concept of reasonableness through the use of expert evidence. Yet the very notion of reasonableness leads to questions of common sense. Our discussion pondered what common sense means in law and the impact that it has on the trier of fact, while recognizing that there must be some notion of common sense in our legal system to ensure functionality. But common sense can also be equated with stereotypes. The point was raised that common sense notions of what makes a witness believable often fails to account for cultural differences, an example being that in some cultures it is rude to look people directly in the eye, but in Western society, this is thought to make someone look “shifty” or untrustworthy.

What feminism and substantive equality demand is that we challenge what is reasonable and rational at the point where inferences are drawn in decision making. This means that we must question the operation of common sense, even in places where it is not always visible.

With these ideas in mind, our discussion turned to the work Dr. Cunliffe has done on mothers who have been wrongly convicted of killing their children. The question here is if these cases have informed our understanding of what can go wrong in the same way that other miscarriages of justice have. It appears that the cases of wrongly convicted mothers are often chalked up to one “rogue” expert (a Charles Smith, or other equivalent), but this reasoning fails to account for how knowledge is used in this trials. Often, stereotypical reasoning is drawn upon by these experts, and these things make sense to a jury. They are common sense. They draw on stereotypical understandings of families. Feminism can operate here to enlarge our sense of how people behave and what is reasonable.

The discussion wrapped up with many important questions. In particular, we questioned the role of science. Where social framework evidence can be useful in expanding notions of reasonableness, it is considered “soft” science and less credence may be given. However, forensic science is often considered infallible, even where it is not. While judges are often not skeptical enough, some of the fault falls to lawyers to. After all, lawyers are also situated within their own sociological contexts, and more likely than not, will engage in their own processes of inference and reasoning as they determine what information is important and relevant to a case. Our role in how knowledge enters the legal system is a crucial one. The roundtable with Dr. Cunliffe helped highlight the need to not just learn and understand the substantive law in our doctrinal courses, but to go further and question and challenge it.

*Dayna Steinfeld is exactly 3 weeks from being done her second year of law at Robson Hall. Not that she’s counting. As co-chair of the FLF for this academic year, she was thrilled to wrap up the year with such a stimulating discussion.

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We are so pleased that this roundtable with Dr. Emma Cunliffe (UBC, Law) has been re-scheduled for March 24th from 12 -1 in room 308.

Don’t miss this opportunity to discuss the intersection of evidence law and feminism with an expert in the field. If you’d like to do some thinking in advance of the discussion, Dr. Cunliffe has suggested a short reading: What feminism can teach us about expert evidence. All students are welcome to attend – you do not have to have taken Evidence in order to enjoy and participate in this discussion.

Read more about the roundtable, and Dr. Cunliffe on the post for the originally scheduled discussion:


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Happy New Year! We hope everyone had a chance to relax before diving back into classes this term.

The FLF is thrilled to announce that Dr. Emma Cunliffe (UBC Faculty of Law) will be leading a roundtable for us on January 21st from 12 -1 on “What Feminism Can Teach us About Expert Evidence”. This is a great chance for those who have taken evidence to consider some feminist issues around the case law and concepts learned in class. For those who haven’t taken evidence yet, the roundtable is an opportunity to gain a feminist perspective on evidence law. Evidence law is an area where a feminist perspective is extremely important and there’s not a lot of time to delve into these issues in the course itself. So come to the roundtable to learn and discuss!

If you’d like to prepare for the roundtable, Dr. Cunliffe would be grateful if you did a broad reading that will provide a good introduction to the topic. The approach to the roundtable will be flexible and open so that there can be lots of discussion and time for questions. The reading should help spark some thoughts in your mind before the discussion. Click on the link below for the reading.

What feminism can teach us about expert evidence

We are very excited to host Dr. Emma Cunliffe for this roundtable. It is an honour to have her come speak with us.


Dr Emma Cunliffe is an Assistant Professor at the UBC Faculty of Law.  She won the Killam Prize for Teaching Excellence in 2010 and has pioneered the use of problem-based learning in her classes at UBC.  Dr Cunliffe’s research focuses on expert evidence in homicide trials, particularly expert medical evidence.  Her forthcoming book (Murder, Medicine and Motherhood: Hart, 2011) considers the role of sudden infant death syndrome and normative conceptions of motherhood in child homicide prosecutions in the early 21st century.  In her current work, Emma is considering the social and legal context in which 20 parents and caregivers were wrongly accused of murder by Ontario pathologist Charles Smith.  In addition, Emma is conducting the first comprehensive survey of admissibility decisions regarding expert evidence in Canadian courts, in an effort to identify whether some types of expertise are scrutinized more closely than others by judges and lawyers.


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