There are currently numerous different rules regarding the use of expert witnesses yet it is clear that it would be advantageous if there was one unified test which experts must pass for their evidence to become admissible. Such a test could be either subjective or objective. If the test were to be objective then specific guidelines could be set out, the expert would then have to achieve these before they were allowed to present their evidence. An example of these requirements could include the expert having to of worked within the field in question for a set amount of years. This type of test would make the exact details of what is required to become an ‘expert’ clear cut and irrefutable. One positive aspect of this is that it would be impossible for the ability of an expert to be questioned as they will have already shown that they have the required knowledge and expertise to testify in a court of law. The downside to such a method is that it is extremely difficult for traits such as knowledge to be measured in an objective manner. Due to this if an objective test was implemented then people who have more than sufficient knowledge and ability to stand as an expert witness could be prevented from doing so just because they do not meet the necessary criteria.
The other option is to use a subjective test. This would involve the decision on an expert’s ability being made by an individual rather than by an objective test of fact. A judge or a bench of Lay Magistrates would be able to view a summation of the experts experience and achievements and then make the decision themselves as to whether they are suitable to provide evidence. There is also the potential that the experts could be approved by the opposing party in trials. If the party were to reject the expert then there would be a right of appeal available which would then see a judge or magistrates making the decision. The problem with this test is that it would still not be clear as to who exactly qualifies as an ‘expert’ as different people would have different subjective views. This is similar to the system which is currently used and therefore carries with it many of the current issues.
The best option would perhaps be for both tests to be used in such a way that the exact definition of an expert would be clear, but the system would no longer be open to abuse by individuals. A possible way of implementing this would be to have the potential expert witness first pass an objective test with some small stipulations before being approved by a Judge or Magistrate.
The Evidence
Once an individual has been deemed fit to testify it is the evidence that they provide which next comes under scrutiny. The evidence must be sufficiently reliable so that it can be used to make important decisions in cases. Although the expert may be highly reliable the evidence which they provide may not be, which clearly highlights the problems which can occur regardless whether the test for suitability is objective or subjective. It is currently possible for evidence which is provided by the prosecution to be rejected if it appears to be totally unreliable. The Police and Criminal Evidence Act 1984 states:
‘In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.’
The clear and obvious issue with this aspect of the law is that it only covers evidence which is provided by the prosecution. Therefore if the court believes that any evidence provided by the defence may have an ‘...adverse effect on the fairness of...’ proceedings then it has no right to omit the evidence. Having a system which scrutinises the evidence brought forward by the prosecution but doesn’t look at the evidence from the defence is clearly unjust. This leaves the court system open to abuse by the defence as they can provide evidence to the jury even if it clearly should not be allowed. This is obviously something which needs to be addressed quickly through reform of the law.
The Law Commission has realised that this area of the law needs to be changed and as a direct result produced as a report which highlights the current issues with the system and which also brings forward suggestions for how the law could be reformed to help resolve these issues. The fact that the Law Commission has felt the need to create this report shows just how many issues there currently are. They suggest four possible ways of resolving the issue of determining whether evidence provided in court is sufficiently reliable. The first of these is ‘Exclusionary discretion without guidance’. This would see expert testimony being treated in the same way as any other evidence. As a result evidence could possibly be refused if its value is overwhelmed by the fact it could possibly ‘mislead, distract or confuse the jury’. The main issue with such a system would come from the basis that the trial judge or bench of magistrates may not be well equipped enough to make the decision themselves as to the actual value the evidence would provide to the case. This is due to the fact that the evidence being provided can sometimes be of a highly technical nature such that it is impossible for a judge to know if the evidence would be beneficial to the case. This is one of the major issues with the current system.
This criticism is overcome in the second possibility suggested by the Law Commission which is the same exclusionary discretion however this time with guidance. This is a key difference as it means that the judge would have the ability to seek guidance as to the actual reliability and relevance of the evidence being provided. The main problem with this option is that it should be the duty of the party who is bringing the evidence forward to show that the evidence being provided is suitably reliable. This decision shouldn’t be made by a third party advisor who may not have the full insight into the case.
Ultimately the Law Commission decided that the best option would be to implement an ‘admissibility rule requiring the trial judge to assess the evidentiary reliability of the tendered evidence’. This test would be similar to rule 702 of the United States Federal Rules of Evidence which states:
‘If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.’
This rule sets out exactly what expert testimony needs to be for it to be admissible and also sets out a three stage test which judges can follow when making their decision. This test is not meant to be followed as a definite list and the three stages are more guidelines than criteria which must be achieved. This flexibility allows for the rules to be implemented no matter what the subject of the testimony is. It has however been argued that these guidelines are only really applicable to scientific fields and therefore different guidance is required for non-scientific fields.
Due to theses slight issues the actual proposals for reform which the Law Commission suggests differ from rule 702. The Law Commissions suggestion is this statutory provision:
‘(1) The opinion evidence of an expert witness is admissible only if the court is satisfied that it is sufficiently reliable to be admitted. (2) The opinion evidence of an expert witness is sufficiently reliable to be admitted if:–
(a) the evidence is predicated on sound principles, techniques and assumptions;
(b) those principles, techniques and assumptions have been properly applied to the facts of the case; and
(c) the evidence is supported by those principles, techniques and assumptions as applied to the facts of the case.
(3) It is for the party wishing to rely on the opinion evidence of an expert witness to show that it is sufficiently reliable to be admitted.’
This would result in the trial Judge having to look not just at the expert’s principles techniques and assumptions but also at the way these are applied to the case at hand. This will help to prevent situations where sound techniques are applied incorrectly to the actual case. This would also help to avoid any incorrect decisions being made in the courts based upon totally unreliable and incorrect evidence.
Another problem with the use of expert witnesses is the ‘Prosecutors Fallacy’. This is an issue which has been brought to the public’s attention in recent times due to its role in some cases involving miscarriages of justice. Although it may appear clear that the information provided in such a fallacy is incorrect it is apparent that juries do not spot this error. The ‘Prosecutors Fallacy’ is explained in the decision in R v Dohney and Adams. This was a case in which the prosecution placed a large deal of emphasis upon DNA evidence left at the crime scene. The prosecutor’s fallacy was explained in the judgement of this case to show that the DNA evidence did not prove the defendant’s guilt. If was explained in that if only one person in every million has a DNA profile that matches the one left at the crime scene and the defendant has a matching DNA profile then there is a million to one probability that the defendant left the crime scene and is guilty of the crime.
As the example shows the Prosecutor’s Fallacy occurs when a set of statistics which is correct for one situation is taken and applied to another situation where it is no longer correct. In this example it may be true that only ‘one in a million’ would have the DNA profile but that does not instantly mean that the chances of the defendant being innocent are one in a million. When an expert witness provides evidence to a Jury in such a way it is very likely that they not question the reasoning that is given to them.
Such an error occurred in the aforementioned case of Sally Clark. In that case the expert witness, Sir Samuel Roy Meadow used an accepted method of squaring the frequency of children with sudden infant death syndrome to come up with the figure of one in seventy three million. This figure correctly shows the chances of two children in one family having the syndrome. What it does not show are the chances of Sally Clark being innocent. By using the same statistic Sir Samuel Roy Meadow could also have taken into account unknown genetic factors and other variables which could cause a family to become predisposed to sudden infant death syndrome. This seriously misleads the jury as they would have been overcome by the size of the odds which were presented to them. It is also extremely difficult for the jury to acquit a defendant when they are presented expert evidence that is hugely one sided. The fact that this evidence is provided by an expert makes it even harder for the jury as they feel that they have no right to question the decision of someone who is highly qualified in their field of work. In this case the jury incorrectly convicted Sally Clark and therefore caused one of the most high profile miscarriages of justice in recent years.
As alluded to earlier in the project in relation to the difficulties faced by the jury, the manner in which experts choose to present their evidence is greatly influenced by who has hired them. If Roy Meadow had been hired by Sally Clark to defend her case then there is no way that he would of placed so much emphasis on the statistics he provided. It is even more likely that he would not have brought up the statistics at all if he knew that they would put a bad light upon the person that he had been hired to defend. Although expert witnesses are supposed to stay impartial and provide their accurate, professional opinion it is unlikely that this will happen when they are being paid vast sums of money by one of the parties involved. These fees can cause major problems to defendants who simply cannot afford to hire the experts they need to prove their innocence. This problem is very rarely encountered by the prosecution who have large budgets available, especially in high profile cases where the public is desperate for a conviction.
The reform suggested by the Law Commission would help to prevent the prosecutor’s fallacy as it would ensure that the Judge scrutinises the way that the data is applied to the actual case. If the evidence given in the Sally Clark case was given under the new rules then in theory the judge would rule it as inadmissible and the jury would not take it into account when making their verdict.
The case of Sally Clark shows just how important it is that correct expert evidence is provided to the jury. In this case the ramifications of the unreliable expert evidence were extreme. The evidence led to Clark being convicted to life imprisonment of which she served over three years before finally being released on her second appeal on the 29th of January 2003. Despite being released Clark found it very difficult to overcome the affects of her ordeal and she was eventually diagnosed with a number of serious psychiatric problems. She died on Friday the 16th of March 2007 from acute alcohol intoxication which was the result of excessive drinking.
Concurrent Evidence
In New South Wales in Australia the system of concurrent evidence is used when two or more parties wish to call upon experts to testify upon the same or a similar topic. This has is now used as the main approach to giving evidence in the New South Wales Land and Environment court, but is also used on a regular basis within the other courts in the territory. The reason it has been so successful in this court in particular is that the Court ‘relies extensively on the information, analysis and opinions that experts can provide’. By implementing the concurrent evidence system, which is colloquially know as ‘Hot-Tubbing’, the court has managed to significantly reduce the time it takes for evidence to be given. As this was one of the most time consuming parts of most trials within the court the difference that has been made in trial times is astounding.
For concurrent evidence in New South Wales the law states that the court may give a number of different directions. The first of these is that the expert witnesses confer. This allows for the experts to see where their opinions differ and gives them the chance to explain their opinions to each other. Another option is to have the experts provide a report to the court which indicates exactly where their opinions agree or differ. From this the court will be able to decide exactly where to begin their questioning and therefore save time that may otherwise have been wasted on asking irrelevant questions. The court also has the option of directing that the expert witnesses do not give their testimony until all the factual evidence has been presented and each party has closed its case. This allows the Judge or Jury to formulate their own opinions on the evidence before the expert witness presents theirs. This should help to prevent the situation that seems to have happened in many of the miscarriages of justice where the jury immediately takes the experts testimony as fact. Another option available to the court is to have the experts be sworn in one after another, with each of them explaining their own opinion as well as having the option to comment upon the testimony of any other witnesses. This is the main reason that the concurrent evidence can be much quicker than the one currently used in the United Kingdom. The final direction that the court can give is that the expert witnesses be cross-examined and re-examined by putting each question to them in turn. This allows for the experts to comment upon each other and explain why they may disagree.
These rules allow for the testimony of two separate expert witnesses to be put against each other at the same time. It results in a discussion which is very different from the usual exchanges that happen within the courtroom. Questions aren’t restricted to just being asked by the Judge or the Lawyers as Experts can question each other under the control of the Judge. One way to describe the process in a trial is that ‘In effect, the evidence was given through a discussion in which all of the experts, the advocates and the Court participated.’
This system means that the control of the debate is taken away from the Judge and the Lawyers and focuses instead upon the experts themselves. The advantages of this are that the experts will find it easier and more comfortable to talk to one of their peers than a legal professional. The time it takes to analyse the evidence is also greatly reduced as the experts can immediately talk about what issues, if any, they have with the information provided by the other witnesses. This allows differences in opinion to be found immediately but also allows an opportunity for the experts to explain their differing views. If they cannot reach upon an agreement then it is still easier for the judge, or jury, to make a decision on which evidence to believe as they will have heard the debate and explanations over the differing opinions.
Having the evidence given concurrently also reduces the chances of evidence which is incorrect or misleading being given to the judge or jury as fact. If such evidence were to be given then the other expert witnesses in the debate would be able to immediately explain to the Judge what the issue is with the evidence and then the Judge will have the ability to make it inadmissible.
The amount of time and money that can be saved by using the concurrent method is significant. The witnesses can be sworn in at the same time and then give their evidence at the same time. In theory this would reduce the amount of time need by half. In practise however it has been shown to reduce the amount of time taken to ‘as little as 20% of the time which would have been necessary’. This time saving would be of value in any court around the world as wasting time costs courts more money than anything else. Implementing this system would reduce the time for cases but would also improve upon the current rules. Due to this it is necessary that concurrent evidence is considered for use in the UK legal system.
The advantages of the system are such that Lord Justice Jackson (pictured right) suggested in his review of civil litigation costs that ‘The procedure developed in Australia, known as “concurrent evidence” should be piloted in cases where all parties consent’. If the results of the pilot were to be successful then it is suggested that the Civil Procedure Rules are altered so that the system can be used in any appropriate cases. This report suggests the implementation of the concurrent technique based solely on its cost saving but it must be taken into consideration due to the benefits it would have on the quality of evidence being provided as well.
The Right Honourable Lord Justice Jackson
There are however some issues with the system. For example there are concerns that if one expert is a better and more persuasive speaker then they may come out on top in the debate even if the evidence they are providing is not as reliable as the others. It is true however that all systems have issues and it appears almost impossible to come up with something that is perfect in every way. This system has its problems but it is still significantly more effective than the current system being used in the UK and therefore a trial run is the minimum level to which concurrent evidence should be applied.
Conclusion
It is obvious that the laws regarding expert testimony in the United Kingdom are in desperate need of reform. This is clearly highlighted by the high profile miscarriages of justice which have happened over the past decade as epitomised by the trial of Sally Clarke and the influence the expert testimony by Sir Samuel Roy Meadow had on the jury’s verdict.
The UK system is lagging behind the times when compared to modernised systems such as those in Australia. Our rules even appear to be totally archaic when compared to the rules in the United States which have themselves come under a large amount of criticism and scrutiny. The United States had listened to criticism and has altered their rules over time so that they now contain guidelines for what is admissible as evidence. In contrast the rules in England and Wales lack clarity with the law still awaiting reform which has been necessary for many years.
This need for reform is also shown in the report set out by the Law Commission which suggest exactly how the law should be. Their reports contain prolific detail on why and how the law should be changed. The changes, such as the new statutory provision, that are suggested should be implemented as soon as possible as they are clearly superior to the current rules. The longer the current rules remain in force, the more likely it is future miscarriages of justice will occur due to misleading expert evidence.
In the current financial climate it is also vital that as much money as possible is saved from the costs of the court system. At present time spent listening to individual experts giving their testimony is time which the courts cannot afford to waste. If the use of concurrent evidence would save up to 80% of the time currently used, as evidence shows, then its use is vital to the success of the cost saving initiatives which are being implemented by the current government.
It is apparent that the use of expert witnesses is something which the court system relies heavily upon. Due to its importance with regards to the decisions made by the judge and jury it is imperative to the future of the United Kingdom’s legal system that the area is reformed to a suitable standard. It would be advantageous to at least trial the concurrent evidence method to see if it is as effective in the United Kingdom as it is in other countries. If this is the case then the system should be implemented as soon as possible.
Bibliography
Websites
BBC News (2005) GMC Finds Professor Clark Guilty. Available: http://news.bbc.co.uk/1/hi/health/4679113.stm. Last accessed 09/01/2011.
BBC News (2005) What future for expert witnesses?. Available: .
BBC News (2006) Expert witness changes proposed. Available: http://news.bbc.co.uk/1/hi/health/6092946.stm. Last accessed 26/01/2011.
BBC News (2007) Sally Clark dies at family home. Available: http://news.bbc.co.uk/1/hi/uk/6460595.stm. Last accessed 24/01/2011.
David J.C. MacKay. (2009). Sally Clark - victim of a miscarriage of justice. Available: http://www.sallyclark.org.uk/. Last accessed: 10/2/2011
David Rose " Expert witnesses shun the courts for fear of lawyers" The Times. Web. Available at: http://business.timesonline.co.uk/tol/business/law/article619849.ece. Last accessed: 2/2/2011
Lawrence West, QC "Have the Woolf Reforms Worked?" The Times. Web. Available at: . Last accessed: 2/2/2011
Richards, Edward P., and Charles Walter. "When Are Expert Witnesses Liable for Their Malpractice?" Medical and Public Health Law Site. Web.. Available at: http://biotech.law.lsu.edu/IEEE/ieee33.htm. Last accessed: 2/2/2011
Warner, Paul (20 June 2006) "Yates Trial Highlights Power of an Expert Witness." USA Today. Available at: http://www.usatoday.com/news/nation/2006-06-20-expert-witnesses_x.htm Last accessed: Web. 2/2/2011
Books
Cullen, Pamela V. (2006)A Stranger in Blood: The Case Files on Dr John Bodkin Adams , London, Elliott & Thompson,
Jack P. Friedman (2000) Dictionary of Business Terms 3rd Edition. New York: Barron's Educational Series, Inc.
Part 35- Experts and Assesors." Ministry of Justice. Web.. Available at: Last accessed: 2/2/1011
Reports
Department of Health (2006). Bearing Good Witness: Proposals for reforming the delivery of medical expert evidence in family law cases – A report by the Chief Medical Officer. Available at:
Law Commission (2009) Admissibility of Expert Evidence in Criminal Proceedings in England and Wales, a New Approach to the Determination of Evidentiary Reliability (Consultation Paper No 190) Available at
NSW Law Commission Report 109 (2005)
Right Honourable Lord Justice Jackson (2009) Review of Civil Litigation Costs Belfast: TSO Available at:
The Law Commission (2009) Admissibility of Expert Evidence in Criminal Proceedings in England and Wales, a New Approach to the Determination of Evidentiary Reliability (Consultation Paper No 190) Available at
Speech
Justice Peter McClellan “Expert Witnesses – the Experience of the Land and Environment Court of New South Wales”, Speech at the XIX Biennial Lawasia Conference 2005 (cited in NSW Law Commission Report 109)
Magazine Articles
Jon May. (2007). Deconstructing Daubert: Rule 702 and Non-Scientific Evidence. Available: . Last accessed 08/01/2011
Lord Justice Wall"Recent Developments in the Field of Expert Evidence in Family Proceedings." Family Law Week. Available at: http://www.familylawweek.co.uk/site.aspx?i=ed2256. Last accessed 2/2/2011
Department of Health (2006). Bearing Good Witness: Proposals for reforming the delivery of medical expert evidence in family law cases – A report by the Chief Medical Officer.
Available at: http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_4140007
Jack P. Friedman (2000) Dictionary of Business Terms 3rd Edition. New York: Barron's Educational Series, Inc.
R v Robert Graham Hodgson (2009) EWCA Crim 490
R v Clark 2003 EWCA Crim 1020
BBC News (2005) GMC Finds Professor Clark Guilty. Available: http://news.bbc.co.uk/1/hi/health/4679113.stm. Last accessed 09/01/2011.
The Law Commission (2009) Admissibility of Expert Evidence in Criminal Proceedings in England and Wales, a New Approach to the Determination of Evidentiary Reliability (Consultation Paper No 190) Available at
R v Clark [2003] EWCA Crim 1020
Turner [1975] QB 834, 841
King CJ, Bonython (1984) 38 SASR 45, 46 to 47 (Supreme Court of South Australia)
Silverlock [1894] 2 QB 766 (Cited in Blazey-Ayoub, Conomos, Doris 1996)
Robb (1991) 93 Cr App R 161
Robb (1991) 93 Cr App R 161
Police and Criminal Evidence Act 1984. s.78(1)
Law Commission (2009) Admissibility of Expert Evidence in Criminal Proceedings in England and Wales, a New Approach to the Determination of Evidentiary Reliability (Consultation Paper No 190) Available at
The Law Commission (2009) Admissibility of Expert Evidence in Criminal Proceedings in England and Wales, a New Approach to the Determination of Evidentiary Reliability (Consultation Paper No 190)
Federal Rule of Evidence 702 (2010)
Jon May. (2007). Deconstructing Daubert: Rule 702 and Non-Scientific Evidence. Available: http://www.nacdl.org/public.nsf/01c1e7698280d20385256d0b00789923/04f750c812e8787885257321005f04f1?opendocument. Last accessed 08/01/2011
R v Alan James Doheny, Gary Adams EWCA Crim 728 (1996)
David J.C. MacKay. (2009). Sally Clark - victim of a miscarriage of justice. Available: http://www.sallyclark.org.uk/. Last accessed: 10/2/2011
BBC News (2007) Sally Clark dies at family home. Available: http://news.bbc.co.uk/1/hi/uk/6460595.stm. Last accessed 24/01/2011.
NSW Law Commission Report 109 (2005)
Supreme Court Rules 1937 (ACT) O 39.9 r 49F
BGP Properties Pty Limited v Lake Macquarie City Council (2004) NSWLEC 399 at para 121.
Justice Peter McClellan “Expert Witnesses – the Experience of the Land and Environment Court of New South Wales”, Speech at the XIX Biennial Lawasia Conference 2005 (cited in NSW Law Commission Report 109)
Right Honourable Lord Justice Jackson (2009) Review of Civil Litigation Costs Belfast: TSO Available at:
http://www.judiciary.gov.uk/NR/rdonlyres/8EB9F3F3-9C4A-4139-8A93-56F09672EB6A/0/jacksonfinalreport140110.pdf