Saturday, June 11, 2011

Disclosure of Evidence

When an expert witness is required to disclose evidence that can damage its client's case, the conflict of interests could be examined from two standpoints: ethical and legal obligations.
In Ontario, Canada, under the Private Security and Investigative Services Act (PSISA) 2005, all individuals who conduct “investigations to provide information on the character, actions, business, occupation, or whereabouts of a person”, including digital forensic experts, require a Private Investigation license. The act, which came into force in 2007, is a way to professionalize the industry and ensure that all practitioners are qualified to act as private investigators (PI). The investigators are required to be familiar with criminal and civil legislation, privacy acts, and (hearing) procedural requirements. Moreover, the individuals must accept PSISA Code of Conduct (Government of Ontario 2005b) which states that every individual licensee must act with honesty and integrity, and comply with all federal, provincial and municipal laws.
In addition to that, private investigators should have the ability (skills and knowledge) to present evidence in the court of law. In Ontario, Canada, the act that governs the hearing procedures in the court of law is the Statutory Powers Procedure Act (SPPA). Section 5.4 of SIPPA states that the “tribunal may, at any stage of the proceeding before all hearings are complete, make orders for, (a) the exchange of documents; (b) the oral or written examination of a party; (c) the exchange of witness statements and reports of expert witnesses; (d) the provision of particulars; (e) any other form of disclosure. ” (Government of Ontario, 2009). The intent is to ensure fair hearing procedures and to prevent the conflict of interests of the expert witnesses hired by either the defence or the prosecution.
From the ethical standpoint, according to the PSISA Code of Conduct, an expert is required to act with “honesty and integrity” (Government of Ontario 2005b), therefore a licensed private investigator is expected to provide a full and truthful disclosure of the discovered evidence. Moreover, under SEPPA section 5.4, the tribunal may order for a full exchange of expert witness statements and reports. As a result, failure to provide a truthful and full disclosure may result in the revocation of the Private Investigation license and criminal case against the expert witness.


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