Trial Judge Criticized for Assuming the Role of “Advocate, Witness and Judge”

How much of an activist should a trial judge be?

Canada and the United States have a number of similarities in the roles judges should play. Both nations frown upon judges doing their own investigation, but at least in the United States there are notable examples of the United States Supreme Court. These issues are not always easy for a judge at any level to deal with. Among other things, the ready access to the Internet makes it tempting to “just find out a little more.”

In R. v. Bornyk, 2015 BCCA 28, January 23, 2015, the accused was charged with the offence of break and entry.  The key evidence against him was a fingerprint found inside the house.  The Crown called an expert fingerprint examiner who testified that the fingerprint had been deposited in the house by the accused.  Submissions were made and judgment reserved.

 

THE TRIAL

The trial then took a bizarre twist. After reserving judgment, the trial judge sent counsel four articles critical of the accuracy of fingerprint analysis.

After hearing further submissions, the trial judge entered an acquittal. In doing so he referred to the articles he had produced and his own comparison of the known print with the latent print.

 

THE APPEAL

The Crown appealed from the acquittal.  The appeal raised two issues: (1) did the trial judge err “in relying upon independently researched literature that was not properly introduced by either party, not tested in evidence, and not put to the fingerprint witness”; and (2) did the trial judge err “by engaging in his own unguided comparison of the latent print and known print.”

 

THE COURT OF APPEAL’S DECISION

The British Columbia Court of Appeal held that “the judge erred in both manners asserted by the Crown.”

The Court of Appeal noted that it “is basic to trial work that a judge may only rely upon the evidence presented at trial, except where judicial notice may be taken.” The Court of Appeal indicated that it was “apparent from the excerpts found in the reasons for judgment and the descriptive titles of the articles that the articles uncovered by the judge are discussions on the subject of fingerprint analysis, including opinion.  As articles commenting on forensic science, their contents are not matters of which the judge could take judicial notice.  It is thus axiomatic that it was not open to the judge to embark on his independent investigation.”

The Court of Appeal concluded, at paragraph 11, that the trial judge “stepped beyond his proper neutral role and into the fray. In doing so, he compromised the appearance of judicial independence essential to a fair trial. While he sought submissions on the material he had located, by the very act of his self-directed research, in the words of Justice Doherty in R. v. Hamilton (2004), 189 O.A.C. 90, 241 D.L.R. (4th) 490 at para. 71, he assumed the multi-faceted role of ‘advocate, witness and judge’”.

The Court of Appeal also concluded that the trial judge erred in “conducting his own analysis of the fingerprints” (at paragraphs 18 and 19):

…the judge also erred by conducting his own analysis of the fingerprints, absent the assistance of the expert witness. The very point of having an expert witness in a technical area, here fingerprint analysis, is that the specialized field requires elucidation in order for the court to form a correct judgment:  Kelliher (Village) v. Smith, [1931] S.C.R. 672; R. v. Mohan, [1994] 2 S.C.R. 9, 114 D.L.R. (4th) 419. While it may be desirable that a judge personally observe the similarities and differences between the latent point and known point, such examination should be guided by a witness so as to avoid the trier of fact forming a view contrary to an explanation that may be available if only the chance were provided to proffer it.

The judge relied upon his own observation of what he said was a difference between the latent and known prints. The fingerprint witness however was never questioned on that area of the fingerprint. Whether this “difference” is forensically significant is speculation. This unassisted comparison had a material bearing on the verdict. On this basis alone, also, I would set aside the verdict.

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