The appellant was convicted of first-degree murder after a second trial following the Crown's successful appeal of his acquittal at the first trial.
The key difference between the trials was the admission of expert evidence from Mark Totten regarding the meaning of teardrop tattoos in gang culture.
At the first trial, the trial judge excluded Totten's evidence as unreliable.
The Court of Appeal allowed the Crown's appeal and ordered a new trial, holding that Totten was qualified to give expert evidence.
At the second trial, Totten testified that a teardrop tattoo could signify one of three things: the loss of a loved one, time in prison, or the killing of a rival gang member.
He provided statistics claiming that of 290 gang members in his studies, 97 had been convicted of homicide, 71 had teardrop tattoos, and all 71 obtained the tattoo to signify killing a rival gang member.
The appellant was convicted.
On appeal, the appellant sought to introduce fresh evidence impeaching Totten's credibility and the reliability of his statistical evidence, including evidence from Totten's cross-examination in an unrelated murder trial and Totten's own research studies.
The fresh evidence demonstrated serious deficiencies in Totten's research methodology, misrepresentations regarding sample size, and unsupported statistical claims.
The Court of Appeal admitted the fresh evidence, found it sufficiently cogent to have disqualified Totten from testifying, and concluded that the absence of his evidence would reasonably have affected the verdict.
The Court allowed the appeal and ordered a new trial.