Pathological Error: Reacting to the Limits of Expertise in Legal Process

The application of medical expertise within a legal context presents a number of difficulties that demand consideration if the courts are to continue to rely upon complex medico-scientific evidence in criminal cases. Using examples from England and Wales, this article examines how miscarriages of justice have systematically resulted from the expert testimonies of paediatric forensic pathologists in criminal cases involving Sudden Infant Death Syndrome (SIDS). Although there are regulatory bodies in place to ensure that forensic pathologists conduct themselves professionally, we argue that the courts must also recognize the intrinsic limits to their expertise. Paediatric forensic pathologists are ‘gate-keepers’ who determine how medical and legal institutions will deal with child fatalities when the cause of death is suspicious or unascertained. Over the course of their infant death investigations, paediatric forensic pathologists will make what are often subjective interpretations of complex data concerning the child’s medical, social, and familial histories. Such interpretation is open to dispute, so over-reliance upon a particular expert witness increases the likelihood that a verdict will be declared unsafe upon review. Comparisons will be made to the recent province of Ontario experience with the Goudge Commission of Inquiry into Paediatric Forensic Pathology and its subsequent recommendations.