The need for judicial education

46.21 Evidence based on genetic test results is a form of opinion evidence. Under the Evidence Act 1995 (Cth), opinion evidence is admissible if it is wholly or substantially based on a person’s specialised knowledge, which in turn is based on the witness’ training, study or experience.^[18] DNA evidence that is relevant to a fact in issue is admissible in civil proceedings unless it is barred under an exclusionary rule, or by judicial discretion.^[19]

46.22 Chapter 44 discusses the use of DNA evidence in criminal proceedings. The Inquiry considers that a number of the concerns identified in that chapter are also relevant to civil proceedings. For example, in the light of the often highly scientific nature of genetic test results, judges will need to balance the probative value of genetic evidence against its potential prejudicial effect when considering whether to admit such evidence. Once the evidence is admitted, the expert scientific witness must explain the science and technology involved in the genetic test, the interpretation of the results, and their significance to the arbiter of fact, whether judge or jury.^[20] In addition, each party’s counsel must have sufficient understanding to examine or cross-examine the expert witnesses appropriately. The judge must also have sufficient understanding to evaluate the evidence, or to direct the jury in its evaluation of the evidence.

46.23 Justice Ming Chin of the Supreme Court of California has commented on the potential implications where genetic evidence is admitted in court proceedings:

The use of genetic information in court raises new evidentiary challenges. DNA evidence is often complicated and laborious to present, and those without a scientific background—including most judges and jurors—often have difficulty understanding it. A courtroom is not an ideal forum for resolving conflicts between scientific theories, yet judges will constantly be asked to referee battles among lawyers and scientific experts over the acceptance of DNA evidence. The complexity and rapid development of genetic science will exacerbate the problem. Scientists need ongoing dialogue and continuous re-examination to test their theories. In courtrooms, decisions must be made at the close of the evidence. This reality creates a natural tension between science and the law.^[21]

46.24 In the Managing Justice report, the Australian Law Reform Commission called for enhanced professional development and continuing education schemes in order to improve the efficiency and effectiveness of the civil justice system. In particular, the Commission called for greater emphasis on programs for trial lawyers and judges, to familiarise them with science, technology and evidence.^[22]

46.25 In the United States, an organisation known as the Einstein Institute for Science, Health and the Courts (EINSHAC) provides education to judges, courts and court-related personnel in relation to a number of scientific and technical areas, including genetic evidence.^[23] According to its website:

Our calling is to make science accessible to the instruments of justice. Our mission is to provide judges, courts and court-related personnel with knowledge tools related to criminal and civil justice proceedings involving evidence from the genetic sciences—genetics, molecular biology, biotechnology and molecular medicine—and from new discoveries and technologies in the environmental and neuro-sciences. In sum, we emphasize the science and impacts of … technologies in judicial system proceedings.^[24]

46.26 A small number of Australian judges have already participated in EINSHAC programs, and a round of meetings to be held in Australia in 2003 will further strengthen this connection.