A very useful aspect of the rejection of the application is the judge’s statement regarding what, in principle, an expert report would have show for the application to be accepted.
In order to succeed, the judge explains, the application should cause him to entertain a sense of unease or disquiet regarding the applicant’s conviction. Spoiler alert: to hear the audio this page refers to unprimed, it’s best to start at the beginning!
In the present case, he suggests, success might have been achieved by an expert opinion convincingly demonstrating that the transcript ‘at the start we made a pact’ was in fact wrong.
This would demonstrate a real risk of injustice to the applicant, the judge himself argues, because the directions given to the jury would have been inadequate in the face of such a factual error.
Such a demonstration might hypothetically, he goes on, take the form of a report based on examination of the recording using ‘enhanced listening techniques’ to establish that what went to the jury was incorrectly transcribed.
As it was, he concludes, my report only raised a possibility that the jury was misled, because we cannot be certain the words were inaccurately transcribed. But this is a possibility adequately covered by the standard jury instructions (where the judge instructs the jury to use the transcript only as an aid, not to rely upon it), which were provided by the trial judge.
This is very useful in explicitly stating that valid demonstration that the detective’s transcript was factual inaccurate would indeed be cause for disquiet
However, it raises several questions. Let’s look at some of them.
What does he mean by ‘enhanced listening techniques’?
The only valid interpretation I can think of for the expression ‘enhanced listening techniques’ would certainly include analytic listening by a qualified and experienced expert in forensic phonetics, using high quality equipment and software to enable specialised views of the acoustic structure of the sound.
However as this is the kind of listening that formed the basis of part of my report, we must assume it is not what he meant.
This leaves the disquieting possibility he might be referring to some spurious pseudoscientific process such as those portrayed on ‘crime scene investigation’ television shows.
Why didn’t my evidence show what he asked for?
My research showed as clearly as it is possible to show that the transcription of ‘at the start we made a pact’ was in fact wrong.
I stated this in the strongest terms available to me, based on auditory and acoustic analysis, confirmed by three other experts, and bolstered by the fact that of over 200 people I have played this audio to under a range of controlled conditions (including a formal experiment published in International Journal of Evidence and Proof), none has ever heard anything remotely like ‘At the start we made a pact’ – until they were ‘primed’ by having this suggested to them (see more under The Perception Experiment).
Doesn’t this, by the judge’s own criteria, indicate there is indeed a real risk that this conviction was unjust – and thus that the case should be re-opened?