Expert Testimony and Its Value In the Justice System

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Matthew Bedford         Expert Testimony and Its Role in the Justice System

Student No: 036176        


Contents

Introduction                                                                        3

Background Information                                                4

Issues with Expert Testimony                                                5

The expert                                                                        5

The Evidence                                                                9

Concurrent evidence                                                        16        

Conclusion                                                                        19

Introduction

This project will analyse the current law relating to the procedures for the use of expert witnesses in England and Wales in relation to both criminal and civil trials.  The project will highlight some of the issues in relation to expert testimony which have lead to miscarriages of justice.  It will then consider the changes which have been proposed, such as those by the Chief Medical Officer (Sir Liam Donaldson) in his report on the use of expert witnesses in family law cases, and discuss how effective their implementation would be on fixing the issues which have been discovered.  It will also consider whether changes should be made to the English system while  looking at the comparative current system used in New South Wales in Australia.  The project will move on to reflect upon how effective expert witnesses are in conveying their knowledge to the lay jury who generally have little appreciation of the complex nature of the particular subject matter.  

Before going into the detail on the reforms which should be made to the laws regarding expert testimony the project will begin by looking at the issues which currently affect the use of expert witness in the United Kingdom.  The project will then reach a conclusion upon what exact changes need to be made to the current law in order to enhance it.

Background Information

In 1782 a court was considering litigation relating to Wells Harbour in Norfolk when John Smeaton, a leading civil engineer, was called upon to give evidence.  This moment is widely regarded as the root of the modern day rules on the use of expert evidence.  An expert witness is defined as ‘One having special knowledge of the subject about which he or she is testifying’ and in the modern age it is very common for experts to be called upon to convey their expert knowledge in relation to a wide variety of court cases.  This can range from cases where the expert will have to assess the mental competence of the defendant at the time of a crime to others where they will sum up and discuss the implications of DNA evidence.

As recently as 1957 however expert witnesses were not commonly used in the court system.  This was to such an extent that Lord Justice Patrick Devlin stated during the trial of suspected serial killer Dr John Bodkin Adams that ‘It is a most curious situation, perhaps unique in these courts, that the act of murder has to be proved by expert evidence.’ This shows just how rare the use of experts was at the time.  In this day and age it would actually be much more surprising to find a murder case which does not, at some stage, rely upon the testimony of an expert witness.  

Since the development of DNA fingerprinting and other forensic methods the use of expert witnesses in criminal cases has increased greatly.  There have also been developments in the fields of forensic engineering and forensic accounting which have increased the use of expert witnesses in civil cases as well.

As the use of expert witnesses has increased, so has the attention that the media has given to their comments.  In recent times there has been a number of high profile cases where it has been proven that incorrect expert testimony lead to miscarriages of justice.  An example of such a case is the trial of Sally Clark in which the evidence given by Professor Sir Samuel Roy Meadow (pictured right) was later described as erroneous and misleading by the General Medical Council.  Cases such as this have resulted in the law regarding expert witnesses to be placed under a great deal of scrutiny and there is now considerable debate regarding proposed changes to the law.

Professor Sir Samuel Roy Meadow

Issues with Expert Testimony

The Expert

The use of expert witnesses has come under considerable scrutiny in recent years.  This has reached such a stage that the Law Commission produced a consultation paper which suggests changes that it believes need to be made to the current legislation to resolve key issues.  One of these key issues highlighted is the fact that in theory the role of an expert witness’ testimony is to convey their knowledge to a jury so that the jury can make an informed decision upon the evidence which the testimony relates.  In practice however the information which the expert provides can be so complex that it is difficult for the jury to comprehend.   In such situations it is likely that the jury will just take the experts evidence as fact.  This is not an issue when the expert evidence is correct, but in situations such as the trial of Sally Clark this can result in a serious miscarriage of justice.   This issue was summed up clearly by Lawton LJ in the case of Turner:

 

‘The fact that an expert witness has impressive qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think it does.’ 

This quote illustrates exactly how the jury can be made to believe that they should trust the opinion of a qualified expert witness over their own personal belief even though their own opinion may be just as valid.  This is most probably the single greatest issue with regards to the use of expert witness.  Their role is, by definition, to provide an ‘expert’ level of knowledge to the jury but this does not mean that the jury should trust the evidence any more than that of an eye witness.  If the jury just sits and listens to the evidence without at any point considering its accuracy and validity then serious issues can arise.  Anyone can be mistaken, even a person who is deemed an expert in their field.   Things become even harder for the Jury when they have to listen to conflicting testimonies from the experts of both the prosecution and defence.  Deciding upon which evidence should be taken as fact and which should be dismissed is an extremely difficult task for the jury.

To ensure that the expert has sufficient knowledge to direct the jury it must be asked whether ‘...the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court...’.  This is a difficult question to answer as no matter which field it is that the jury requires advising on, there will be experts with vastly varying degrees of experience and knowledge within that field.  It was stated in R v Silverlock that ‘No one should be allowed to give evidence as an expert unless his profession or course of study gives him more opportunity of judging than other people’.  Although this clearly shows that an unqualified person would never be allowed to give expert evidence, it fails to define the standard of knowledge and experience they must have.  In fact the statement that they must have ‘more opportunity of judging’ than the ordinary person makes it seem that a person with just slightly more knowledge than the lay person would be qualified to stand as an expert.  In practice it is highly unlikely that a person who has no professional qualifications or has little experience would be allowed to stand as an expert.  This was shown in the case of R v Robb where it was deemed that ‘the courts would not accept the evidence of an astrologer, a soothsayer, a witchdoctor or an amateur psychologist’.  Despite these decisions it remains unclear as to what level of expertise an expert must have and it is left to the judge or jury to decide what evidence is of worth and what isn’t.  

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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 ...

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