An important aspect of this case is that the detective provided his transcript in the role of so-called ‘ad hoc expert’.
What is an ‘ad hoc expert’?
This is a little complex, but I think you will find it worthwhile
to wade through a bit of explanation to get to a truly bizarre aspect of this case.
Ordinary witnesses in a trial can’t give an opinion. They must ‘stick to the facts, ma’am’.
Expert witnesses are asked for their opinion. Of course this is because, as experts, their opinion is considered more reliable than that of ordinary witnesses. Even so, experts are required to set out their methods and reasoning to back up their opinion, and demonstrate their track record. Recent years have seen a great deal of emphasis on the need to cross-examine experts rigorously, in a bid to exclude pseudoscience.
‘Ad hoc experts’ are witnesses who have no genuine expertise, but are deemed to have ‘specialised knowledge’ about items in the specific trial they are appearing in. It is a strange and contested legal concept, intended to allow non-experts (often but not always detectives) to offer their opinion about certain kinds evidence to the court.
Detectives as ‘ad hoc experts’
In the case of covert recordings, detectives are deemed ‘ad hoc experts’ on the grounds they have listened to the audio ‘many times’ (not further specified) .
That status is what allows detectives to give their opinion as to what they hear in a recording.
Note, however, that they are not asked to back up their opinion or defend their track record, as a real expert would be. They simply provide their opinion in the form of a transcript to ‘assist’ the jury.
A problem in general
This is quite problematic (as we discuss in detail elsewhere on this site). In general, it means that the worse the quality of a covert recording, the more it can help the prosecution. A detective who ‘hears’ incriminating words can have these words provided to ‘assist’ the jury without having to justify his opinion in any way other than by saying ‘in my opinion those are the words that were spoken’.
But in this particular case, the situation is far worse
This particular detective has a known track record with transcripts – and it is not a good one
Some years before the murder case we are currently discussing, he provided an inaccurate and misleading transcript that played a crucial role in another murder trial.
The reason I know this, is that in that earlier case, I myself, as an expert witness for the Crown (i.e. the same folks who in the present case consider my opinion ‘simply the view of another person’), confirmed the defence expert’s opinion regarding the unreliability of the detective’s transcript (thus contributing to the success of the defence’s appeal against the murder conviction).
Since that was an appeal case, the judgment is available as a legal precedent, which could in principle have been used by the defence in our current murder trial.
The problem is that there was no (easy) way for the detective’s history of having provided an unreliable transcript in at least one previous murder trial to become known to the court. (This remains true in general, but see now the UPDATE below.) No searchable records are available for the work of ‘ad hoc experts’, and no one ever asks them about their prior experience. In this case as in most, the question simply never arose.
I made all this known to the defence lawyers, who duly noted it in the application to re-open the case. However, it seems not to have been considered at all by the judge ruling on the application.
UPDATE I’ve recently discovered that one of the appeal judges who, in the earlier case mentioned above, ruled that the detective’s transcript was misleading and quashed the murder conviction based on it, was the very same judge as the one presiding in the murder trial we’re discussing in this case study .
SURELY even if he did not remember the particular detective, we could expect him to have understood the principle that a police transcript purporting to show a defendant confessing to murder cannot be reliably evaluated by a jury.
It is all horribly reminiscent of the ongoing fiasco described in this news report
(relevant section from 2mins 10sec)
(thanks to Bob Moles for the reference)
And if all that isn’t enough to cause concern with the system …
I am personally aware of at least one current murder trial involving indistinct audio transcribed by this same detective.
Perhaps in a few years it will be necessary to lodge another application to have another case re-opened.
And it is worth pointing out
Without the purely coincidental personal connection of my being involved in the various murder trials just mentioned (in fact even more coincidental than it seems from the above, but the story gets too long), there is no way to track a detective’s performance with transcription over time.
Even on the rare occasion a detective’s transcript is challenged, and, even more rarely, found to be misleading, the only consequence is that the detective walks away and prepares another transcript for another court.
I don’t think you need to be an expert in phonetics to feel a need for some questions to be raised about that. Do you?