D. The Issues
1. Is the fresh evidence sufficiently cogent to have disqualified Totten from giving expert evidence about the meaning of a teardrop tattoo?
[ 56] The cogency criterion for the admission of fresh evidence
on appeal asks: is the evidence sufficiently cogent that it could
reasonably be expected to have affected the verdict? In this case,
that question must be applied to the test for the admission
of expert evidence. Because the two are intertwined, I think
the analysis is easier to understand if the cogency question is
divided into two separate questions:
— Is the fresh evidence sufficiently cogent to have disqualified
Totten from giving expert evidence about the meaning of a
— If the answer to the first question is yes, would the absence
of Totten’s evidence about the meaning of a teardrop tattoo
reasonably be expected to have affected the verdict?
[ 57] As I said at the outset of these reasons, I would answer
yes to both questions. In this section, I will deal with the first
question, and in the next section of my reasons with the second
question. Before discussing the cogency of the fresh evidence,
I will summarize Totten’s resume or curriculum vitae, his two
reports for Abbey’s trials and his evidence at the second trial on
the meaning of a teardrop tattoo.
(a) Mark Totten’s curriculum vitae
[ 58] On paper, Totten has a most impressive curriculum vitae.
It spans 28 pages of the appeal book. He has a B.A. in social
behaviour from Queen’s University (1985), a Masters of Social
Work from Carleton University (1986), and a Ph.D. in Sociology,
concentrating on youth gangs and violence, also from Carleton
University (1996). Since 1997, he has been president of his own
consulting company, Totten and Associates.
[ 59] Totten has published four books, delivered numerous
reports to governments and community organizations and
received a large number of research and evaluation grants.
According to his curriculum vitae, since 1990 he has delivered
over 500 keynote speeches, addresses, lectures, papers and
workshops for international, national and local audiences on
topics related to, among others, youth gangs, youth violence
and youth homicides.