Novel Scientific Evidence

**3**

**Chapter 1**

*Ian Freckelton*

**Abstract**

Guarding the Gait: Evaluating

Forensic Gait Analysis Evidence

Novel scientific evidence challenges courts in terms of how they can evaluate reliability for the purposes of making admissibility decisions and assigning probative value to information that is adduced before them. An example of such problematic evidence is forensic gait analysis evidence which is in its infancy as a discipline of forensic science. This chapter reviews how objections to forensic gait analysis evidence have been handled in judicial decisions at first instance and on appeal in Canada, the United Kingdom and Australia. It identifies vulnerabilities in such evidence, especially when jurors are required to incorporate expert opinions (often from podiatrists) about the similarities in gait between that of the accused and a person seen on CCTV footage. The chapter expresses concern about the current scientific basis for such evidence in the absence of well developed databases in relation to gait characteristics, difficulties that characterise interpretation of CCTV footage, and the role that subjective issues can play in analyses by experts in gait interpretation. It notes a United Kingdom initiative in formulating a code of practice for forensic gait analysts but calls for caution in relation to reception and weight to be attached to

such evidence until its scientific status becomes more developed.

probative value, weight, miscarriages of justice

**1. Introduction**

rigorous when it may not be [2].

**Keywords:** Novel scientific evidence, forensic gait analysis evidence, admissibility,

Forensic gait analysis is one of a number of novel areas of scientific evidence that

Forensic gait analysis functions as an example of a dangerous category of apparently scientific evidence that is beguilingly probative but which has the potential to lead to miscarriages of justice. It challenges decision-making by courts and attempts by law reformers to formulate criteria for determining admissibility or at least indicia for safeguards so that misimpressions are not given about evidentiary reliability

have troubled the courts in recent years and led to conflicting curial decisions in relation to admissibility and probative value. In this regard it takes its place alongside facial mapping and body mapping evidence, psychological autopsy evidence, polygraph evidence, lip-reading evidence and ear print comparison evidence [1] as a form of evidence that carries the potential to appear to be more scientifically reliable than it is and therefore which carries a risk of misevaluation if not critically scrutinised. Such evidence is particularly problematic in criminal trials when verdicts are determined by lay jurors. This is because of the danger that decisionmakers will invest overmuch trust in evidence that appears to be scientifically
