data on teardrop tattoos. He testified: “I can give you the numbers with teardrops, with the teardrop tattoo out of those six
studies”. He promised to get the data and bring them to court.
 Surprisingly, after the luncheon recess, Totten did an
about-face. He told the Crown and the trial judge he had no data
on teardrop tattoos as he had destroyed all of his data in accordance with the guidelines of the “tri-council ethics committee”.
Totten said that under these guidelines he was bound to keep
his raw data for ten years, and then destroy them. Totten was
not asked and did not say when he destroyed his data, and he
did not produce a copy of the committee’s guidelines.
 The Crown argues that we cannot rely on Totten’s evidence about the destruction of his data because that issue arose
for the first time in the Gager trial. In Abbey’s first trial, the
defence made no complaint about the lack of disclosure. I do not
agree with the Crown’s argument. The Gager trial took place
about 11 months after Abbey’s second trial, and it is thus likely
that the state of Totten’s raw data was the same at the time
of both trials. Indeed, if we accept Totten’s evidence that he
destroys his data after ten years most of the data from his studies would have been destroyed before the second trial. Neither
the Crown nor Totten has suggested otherwise.
 More important, Totten’s evidence raises serious concerns
about his credibility and the reliability of his assertion that 71 of
the 97 gang members had teardrop tattoos. The concerns are
twofold. First, Totten’s over-lunch about-face regarding whether
he had his data is, at least, suspicious. Second, without access to
the underlying data a court cannot test the reliability of Totten’s
claim that in his sample drawn from his six studies, 71 young
male gang members who had been convicted of a homicide had a
( v) Each of the 71 told Totten he had obtained a
teardrop tattoo to signify the killing of a rival
 At trial, the Crown asked Totten the following question:
I just want to be certain I understand. So the 71 who had been convicted of
murder or manslaughter that had a teardrop tattoo all indicated, told you,
when you asked, that the teardrop signified killing of a rival gang member;
is that right?
 Totten answered: “That’s right.” His answer undoubtedly
was one of the most powerful pieces of evidence, if not the most
powerful piece of evidence, supporting the Crown’s allegation
that Abbey had murdered Peter. Yet on its face, the answer