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EVIDENCE - Admissibility - Fresh evidence - Opinion evidence - Expert evidence - Basis for opinion

Friday, September 15, 2017 @ 8:26 AM  


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Appeal by the accused from conviction for first degree murder. The appellant had been acquitted at his first trial. At issue was the identity of the murderer. The Crown’s theory was that the appellant, an associate of a street gang, shot and killed the victim mistakenly believing the victim was a member of a rival street gang. The Crown’s case rested significantly on the evidence concerning the meaning of a teardrop tattoo. The Crown’s expert on gang culture testified about the meaning of a teardrop tattoo on the face of a male gang member. In giving his opinion, the expert relied on his clinical experience over two decades, his research projects, and his review of the academic literature. The Crown relied on the expert evidence to argue the appellant had obtained a teardrop tattoo to signify he had killed a rival gang member. The appellant sought to introduce fresh evidence to impeach the credibility and reliability of the expert’s statistical evidence. The fresh evidence consisted of the expert’s evidence elicited by the Crown in an unrelated murder trial which took place after the appellant’s second trial during which the Crown impeached the expert, eight research studies on street gangs conducted by the expert, of which six predated the appellant’s two trials and formed the basis for the expert’s statistical evidence on teardrop tattoos, and data from Statistics Canada on the number of homicides in Ontario. The appellant argued that the fresh evidence showed the expert’s trial evidence about teardrop tattoos to be fabricated or at least unsupported by the six studies he claimed he relied on.

HELD: Appeal allowed. New trial ordered. The fresh evidence was admissible. The fresh evidence showed the Crown expert’s opinion evidence on the meaning of a teardrop tattoo was too unreliable to be heard by a jury. If the trial judge had known about the fresh evidence, he would have ruled the expert evidence inadmissible. The absence of the evidence would reasonably be expected to have affected the jury’s verdict. The fundamental problem with the expert’s trial evidence, which was brought to light by the fresh evidence, was its unreliability. The expert’s opinion evidence at trial misrepresented the data in his studies. The most serious misrepresentation was the size of his sample. Other misrepresentations included his claim that he never used a gang member more than once in his studies and his claim to have sat through every interview in at least one of his studies. The key statistical components of the opinion evidence on the meaning of a teardrop tattoo were not supported by the six studies on which his opinion evidence was based. The underlying interview data, which the expert claimed supported his opinion evidence, were no longer available for examination because he destroyed them. The fresh evidence was sufficiently cogent that if known by the trial judge at the gatekeeper stage, he would have ruled the expert’s evidence on the meaning of a teardrop tattoo inadmissible. As the expert had not been directly confronted with some of these deficiencies and inaccuracies in his testimony and research, it would be unfair to find that he fabricated or concocted part of his research or gave deliberately misleading testimony. As the fresh evidence was so cogent that it almost entirely undermined the reliability of what seemed to be compelling statistical evidence supporting the expert’s opinion on the meaning of a teardrop tattoo, to refuse to admit the fresh evidence because of a lack of due diligence would risk a miscarriage of justice.

R. v. Abbey, [2017] O.J. No. 4083, Ontario Court of Appeal, D.H. Doherty, J.I. Laskin and L.B. Roberts JJ.A., August 4, 2017. Digest No. TLD-Sept112017010