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Abstract

The failure of a judge to properly conduct a voir dire to ensure an expert is sufficiently qualified to give evidence in a particular area may give rise to a wrongful conviction. Considering Recommendation 130 from the Goudge Inquiry, that “trial judges should be vigilant in exercising their gatekeeping role with respect to the admissibility of [expert] evidence”, it is essential to examine recent shortcomings of judicial vigilance in admitting expert evidence and to consider how to remedy similar errors in future cases.

The major shortcoming of judicial gatekeepers in admitting expert evidence is the improper application of case law regarding the test in R v Mohan and consideration of the factors in Daubert. Systemic patterns of judicial error are demonstrated through the repeated admission of expert evidence given by Doctors Charles Smith and Gideon Koren. By analyzing the flaws in Dr. Smith’s admitted testimony in the context of the Mohan test, and the misapplication of the Daubert factors to Dr. Koren’s evidence, it is clear that the gatekeeper’s acceptance of unqualified or underqualified expert evidence can be avoided by holding fulsome voire dires and adopting techniques utilized in other jurisdictions to reduce the potential of wrongful convictions.

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