Expert witnesses

There are whisperings of a crackdown on expert witnesses in the form of a toughening of the rules governing the evidence they give to the court.



Currently expert evidence is governed by Rule 33 of the Criminal Procedure Rules as well as by the guidance issued by individual governing bodies, for example this is the General Medical Council's advice.  Other less well regulated areas have different, less or no real guidance for 'experts' to follow.  Even where guidance exists that doesn't mean it will be followed well, properly or even at all!

A few years ago, I was counsel in a big cultivation of cannabis case where one of the central issues revolved around an accounting ledger written partly in English and partly in Vietnamese.  There was a dispute over whether a particular word translated into "grass" or "aunty".  The Crown contended the word was "grass" and referred to cannabis sales.  The Defence line was the word meant "aunty" and related to a loan repayment by the defendant to his aunt.  The prosecution produced an "expert" in the form of a Vietnamese translator who was very bad and whom we were able to tear apart.  So, the next day they found another translator who did manage to support them.  So, we responded with our own expert report that concurred with us that the word was "aunty". Thinking about it, I don't think our expert was all that honest as a) she knew the co-defendant and had discussed the case prior to giving us the report but 'forgot' to mention that fact; and b) she fled the country when told she had to come to court to give evidence!  Proper quality expert... just the sort our justice system needs.

Now, before a lawyer can stand up in Court, he or she must complete several years of training plus on the job training and post-qualification training as well as completing yearly update courses.  A typical expert does not need to show any of this training and certainly in the case of translators and other such un-regulated experts they don't always need to have any training at all because the Courts quite regularly don't bother to make any checks whatsoever.  That is how people like Gene Morrison and Godwin Onubogu was able to give evidence in court.

But, bogus experts aren't the only problem that the courts face.  Other respectable, educated and fully qualified experts frequently get a bee in their bonnet about something or worse become so entrenched in their thinking that they forget to question the evidence and reach conclusions based on the evidence rather than arriving at a conclusion and then looking back for the evidence.

In one case my firm covered, the financial expert continually said he needed more and more disclosure from the Crown.  When his report finally arrived, it was clear that he hadn't needed 80% of it and was simply trying to inflate his own bill.

A friend of mine holds a doctorate that has something to do with the analysis of pollen (I don't pretend to fully understand it at all) and I have regularly advised him to take up expert witness jobs as they pay rather well.  He refuses because he says that the handful of other experts currently in the UK spend more of their time trying to discredit each other than conducting any useful science and he doesn't want to be involved in a public slanging match in the courts and in his industry publications.  He describes the two main experts as "useless" but so loud that people listen to them.

When I recently required the services of a forensic paediatric pathologist I discovered a small problem.  There is only one such person in the UK, Professor Risden, and he gives expert reports exclusively to the prosecution - he will not accept an instruction from the defence was the result of my enquiries... very independent you might think.  Finding a forensic pathologist is relatively easy until you mention that a child is involved, at which point it becomes very hard to find anybody willing to act because of the mud slinging that goes on between the experts who work solely for the prosecution and the others.

As an example of the sort of thing that goes on I will quote from a statement given by Heather Kirkwood to an English court.  Mrs Kirkwood is a US attorney who is licenced to practice in Washington and Texas.  She has approximately 20-years practice experience and she swore a statement that at the Eleventh International Conference on shaken baby syndrome she witnessed Detective Inspector Welsh from the Metropolitan Police Service give a talk entitled "A National Co-Ordinated Approach to Cases of Non-Accidental Head Injury in the UK".  She describes the co-ordinated approach thus:

"Shortly into the talk, I realized that the "national coordinated approach" referenced in the titled of the talk was essentially a description of the joint efforts of New Scotland Yard, prosecution counsel, and prosecution medical experts to prevent Dr Squier [sic] and Dr Cohen [two medical doctors who questioned prosecution evidence and were the subject of anonymous complaints to the GMC] from testifying for the defense on their findings in specific cases as well as on their published and peer-reviewed research."

The matter of what happened at this conference and the situation with Dr's Squires and Cohen are whole topics in themselves and I mention them only to give an illustration of the world of expert evidence, which is often thought of as a lofty idealistic arena where scientific evidence is examined and conclusions drawn based solely on facts not egos or fixed notions of what is scientifically "right".

There does need to be action taken to increase the quality of evidence given by experts.  One big step would be for the courts to become involved far earlier and to have a major hand in the appointment of witnesses.  Civil courts make a lot of use of single joint experts (where one independent expert is agreed upon and instructed jointly) and although provision exists for this in the criminal courts the reality is that where expert evidence is called by one side to show X another expert will be called by the other side to show Y.  Experts are supposed to be independent of the party who instructs them, but it is remarkable how many times a prosecution expert agrees with the prosecution case and a defence expert agrees with the defence case.  One solution might be for the prosecution and defence to both submit a summary of their case to the court and for the judge to draft questions for the expert to address to avoid influence from either side.

A final and very simple step that could prevent bogus experts and ensure that all experts are up-to-date could be for all witnesses to show evidence of their qualifications to the court each time they come to give evidence.

Comments

  1. “A final and very simple step that could prevent bogus experts and ensure that all experts are up-to-date could be for all witnesses to show evidence of their qualifications to the court each time they come to give evidence.”

    Yikes! Should we extend this to showing practising certificates / HCA qualifications to avoid people like Ian Clegg and Adam Zoubir?

    “Experts are supposed to be independent of the party who instructs them, but it is remarkable how many times a prosecution expert agrees with the prosecution case and a defence expert agrees with the defence case.”

    It might be worth mentioning that, as a matter of law, the defence do have an advantage over the prosecution with regards to experts since they can secretly instruct as many experts as is necessary to produce the “right answer” whilst the prosecution would be obliged to disclose any unhelpful reports received. This is something that s.6D CPIA was aimed at changing. Of course, in practice, this tends to result in the defence just not calling an expert when a report has been commissioned (no doubt due to the funding issues).

    With the general point, I wonder whether the Supreme Court’s Jones v Kaney judgment will eventually filter down to the criminal courts. If an expert is shown to be grossly incompetent or pursuing a personal agenda, a civil action against him or her would be possible.

    I can’t see single experts being instructed in many cases where the ultimate issue is dependant on expert opinion, such as baby-shaking cases; there are already too many problems with how experts can give evidence in these cases without expressing an opinion as to the ultimate issue. At least if there are two diverging experts the jury can pick the one they prefer, whilst if there was only one, it is hard to see the jury doing anything but agreeing with the expert.

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  2. 1. Yes, I think the court should be more careful about who it allows to appear before it. In fairness, you are expected to be registered with XHIBIT so you do have to prove that you are entitled to practice. Checking a HCA out takes about 3 seconds on the Law Society website.

    2. As a matter of law the defence may have that advantage, although in some cases where the pool of experts is tiny the fact of an instruction is something of an open secret. Also, it is very relevant that a legally aided defendant will find it hard enough to obtain funding for one expert never mind multiple experts and there are very few privately funded defendants even now.

    3. A civil action is possible, but the client will not receive legal aid to pursue it and it's not in the solicitors interest to chase an expert and leave himself open to huge costs with no prospect of any gain whatsoever. Much simpler for the solicitor to add the expert to his non-approved supplier list and never instruct him again.

    4. I agree that the jury are free to pick the opinion they prefer, but that relies upon them understanding the points. You only have to see a few experts to realise that THEY don't know the answer to some of the questions and are relying on an opinion rather than a fact. If the experts themselves can't decide what is correct how can you expect a jury with no experience and limited understanding to first work out what is fact and what is opinion and then to jugde which of the conflicting opinions is the right (or least wrong) one?

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  3. But if you have evidence to prove that a so called 'expert witness' acting for the Defence in a large group action case, was not what they professed to be and did not hold the relevant qualifications to act as the 'expert' they said they were, and also had no relevant experience either in the field giving expert opinion on, would this be fraud, perjury, perverting the course of justice, obtaining monies by deception, etc., and who would you complain to, the Lord Chancellor, Ministry of Justice, Judge who dealt with the case, Police (Fraud Dept.), who would you take it to if you can't go to the claimants solicitors for good reason?

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